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Court ruling won't end mine permit crackdown

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CHARLESTON, W.Va. -- Late last week, coalfield political leaders declared victory in their efforts to stop the Obama administration's Environmental Protection Agency crackdown on mountaintop removal.

Sen. Joe Manchin, a West Virginia Democrat who as governor sued the EPA over the crackdown, said Thursday's federal court ruling against the agency marked "a great day for West Virginia."

Rep. Nick J. Rahall, D-W.Va., said the ruling is a "victory for the working men and women in the coalfields of West Virginia" and urged the EPA not to appeal.

"Know that you are wrong," Rahall said in a statement. "Now is the time for you to right the wrongs."

Manchin, Rahall and the coal industry celebrated the decision by U.S. District Judge Reggie Walton to throw out the EPA's plan for more hands-on involvement in reviewing a backlog of mining permit applications in West Virginia and Kentucky.

However, Walton has yet to rule on the bigger long-term issue in the case, and the EPA retains legal authority to veto or block key Clean Water Act permits that mining companies need for new mountaintop removal operations.

"So far, the EPA is the only governmental agency that has been willing to acknowledge these threats to our land and people," said Suzanne Tallichet, vice chairwoman of the group Kentuckians for the Commonwealth.

EPA officials have not said they will appeal Walton's initial ruling but indicated in a prepared statement that the agency has no plans to stop trying to reduce mining impacts on the environment and public health.

"We will work under the law to meet our Clean Water Act responsibilities to keep Appalachian streams clean for drinking, fishing and swimming and to assure environmentally responsible coal mining proceeds," said EPA spokeswoman Betsaida Alcantara.

Walton's ruling confirmed what the judge previously had indicated he believed: that the EPA had exceeded its Clean Water Act Section 404 authority to provide oversight of how the U.S. Army Corps of Engineers reviews and approves "dredge-and-fill" permits. Mine operators need these permits to bury streams with waste rock and dirt produced by blowing up mountains to reach coal seams.

Two years ago, the EPA had created what it called "enhanced coordination procedures," to work with the corps and companies to reduce impacts from proposed coal-mining operations. The EPA also wrote a formula for deciding which in a backlog of pending permits would be subject to increased agency review through these coordination procedures.

The EPA actions were meant as a way for agency officials to get more involved early on in examining permit applications being considered by the corps, rather than waiting until the corps approved such projects and then objecting to the permit approvals.

Industry officials, along with state regulators in West Virginia and Kentucky, said the EPA's involvement exceeded its Clean Water Act authority. They also argued the agency was illegally adding new permit restrictions without first seeking public input on the changes.

In a 19-page ruling, Walton agreed with those complaints. He said Congress clearly made the corps "the principal player" in reviewing stream-filling permits and that lawmakers allowed EPA involvement only in "limited circumstances."

"His ruling affirms our view that the Congress did not grant [the] EPA sweeping powers under the Clean Water Act to arbitrarily delay permits or develop a new permitting process that usurps the role of the corps as the 404 permitting authority," said Hal Quinn, president of the National Mining Association. "With this decision, coal communities can get back to the business of producing affordable energy for Americans and put more Americans back to work."

By voiding the EPA's permit review coordination procedures, Walton's ruling affects only 21 permit applications -- eight in West Virginia and 13 in Kentucky.

Also, Walton made it clear the EPA retains its near-absolute authority under the Clean Water Act to veto corps permit approvals for mining operations EPA experts believe would have "unacceptable adverse impacts." Earlier this year, the EPA used that authority to veto a corps-approved permit for Arch Coal's Spruce No. 1 Mine in Logan County, the largest single mountaintop removal permit in West Virginia history.

Arch Coal is challenging that action in federal court, but environmental groups already are calling on the EPA to use this veto authority on other permits. Emma Cheuse, a lawyer with the group Earthjustice, said it is "vital" for the EPA to use that authority "and veto any permit that would cause unacceptable harm to U.S. waters."

At the same time, the West Virginia Coal Association on Friday urged Congress to act quickly to pass legislation - co-sponsored by Rahall and Reps. Shelley Moore Capito and David McKinley, both R-W.Va. - that would take away the EPA's veto authority and otherwise strip the EPA of water permit oversight powers.

"Congress and the president could bring an end to the EPA's assault on jobs today," said Bill Raney, president of the state Coal Association.

Among other things, the legislation essentially would end the EPA's ability to block Clean Water Act pollution discharge permits, which are issued separately from "dredge-and-fill" authorizations, by objecting to those permits until impacts are sufficiently reduced.

That issue isn't addressed by the lawsuit pending against the EPA.

For now, Walton's ruling leaves standing the EPA's new water quality guidance, meant to force state agencies such as the Department of Environmental Protection to more carefully review mining permits and push companies to reduce potential pollution impacts.

The judge had been scheduled to hear legal arguments later this month on part of the case challenging that guidance, but Walton has delayed deadlines for legal briefs on that issue until spring and won't hold a hearing until June.

"Today's ruling is only half the battle," DEP Secretary Randy Huffman said in a statement on Walton's decision.

On that point, Huffman and environmental groups agree.

Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy, said coalfield residents hope to continue pressing for tougher EPA actions.

"Without strong federal oversight and scrutiny of individual permits applications, we here in West Virginia will find ourselves once more in a rapid decline and a race to the bottom in the universe of protecting our streams and communities from the destruction of the coal industry," Rank said. "We will never be able to effect change from within our individual states without federal input and the voices of everyone across the country that case about our nation's waters to call and voice their support for strong EPA action on mountaintop removal mining."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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