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Manchin announces suit to block EPA mine permit reviews

Chris Dorst
Gov. Joe Manchin talks with DEP Secretary Randy Huffman (right) and agency lawyer Ben Bailey during a press conference at the state Capitol on Wednesday morning.

Read the lawsuit on Coal Tattoo.

CHARLESTON, W.Va. -- The West Virginia Department of Environmental Protection filed suit today in federal court to try to stop the Obama administration's crackdown on mountaintop removal coal mining across Appalachia.

Private lawyers hired by DEP filed the suit just hours after Gov. Joe Manchin announced the planned litigation during a press conference at the state Capitol.

Manchin, in the midst of an increasing tough race for the U.S. Senate, said the suit is aimed at stopping the U.S. Environmental Protection Agency's "attempts to destroy the coal-mining industry and our way of life."

"The state has worked as hard as it could to resolve these issues with EPA without resorting to litigation," Manchin told reporters. "It's a shame when you have to take action against your own government, but sometimes it has to be done."

The 52-page lawsuit targets EPA's tougher reviews of Clean Water Act permits for mining operations and the federal agency's new water quality guidance aimed at reducing pollution from coal-mining sites.

It alleges EPA Administrator Lisa P. Jackson wrongly implemented both programs without first subjecting them to public notice and comment, challenging not the substance of the EPA crackdown, but the process used by the Obama administration to implement it.

"With these actions, EPA and the Corps have demonstrated a brazen disrespect for the notice-and-comment rulemaking that forms the backbone of proper regulatory action by giving the states and interested parties an opportunity to comment upon proposed rules before implementation," the suit states.

EPA released a statement in response, saying that state officials "have not engaged in a meaningful discussion of sustainable mining practices that will create jobs while protecting the waters that Appalachian communities depend on for drinking, swimming and fishing."

"EPA continues to be willing to work with industry to reach common sense agreements allowing them to mine coal while avoiding permanent environmental impacts and protecting water quality," said EPA spokesman Brendan Gilfillan.

Manchin invited officials from the West Virginia Coal Association and the United Mine Workers union to his press conference, and thanked both organizations for their support in fighting EPA.

"I'm pleased that we finally got to the point of filing a suit," said Bill Raney, president of the coal association. "EPA will not issue permits. They will not let anything go. We've got to get to the point of certainty."

Manchin also appeared with DEP Secretary Randy Huffman and with Ben Bailey, a Charleston lawyer whose firm, Bailey and Glasser, was hired by the administration earlier this year to help plan legal action against the federal government.

Bailey said the suit would seek to nullify EPA's more rigorous reviews of Clean Water Act permits for mining operations and to block federal officials from implementing a tougher water quality standard announced in early April.

The suit will not target the substance of those EPA actions, but instead challenge whether federal officials followed proper procedures -- such as allowing public comment -- before implementing the new restrictions.

Bailey & Glasser was previously hired a decade ago by Republican Gov. Cecil Underwood and helped the state win an appeal of a ruling by the late U.S. District Judge Charles H. Haden that would have limited mountaintop removal.

While the coal industry favors mountaintop removal's efficiency, and local political leaders praise the jobs provided, there is a growing scientific consensus that the practice is causing widespread and irreversible damage to the region's forests, water quality and communities. Last week, the EPA's independent Science Advisory Board issued a draft report that backed the agency's scientific findings about the impacts and needed reforms in regulatory standards.

Manchin, the DEP and other state elected officials have blasted EPA's actions, and industry officials have tried to make the permit crackdown a major issue in coalfield political races, including Republican Spike Maynard's effort to unseat longtime Rep. Nick J. Rahall, D-W.Va.

Republican John Raese, who is running against Manchin for the U.S. Senate seat held for many decades by Robert C. Byrd, has alleged that Manchin has not shown enough support for the mining industry and would not stand up to President Obama on coal-related issues.

The National Mining Association has already filed a federal court lawsuit to try to challenge EPA's more rigorous review of Clean Water Act permits issued by the federal Army Corps of Engineers and to block new EPA guidance meant to limit pollution scientists say increases the electrical conductivity of streams to dangerous levels. EPA's permit review process has led to the issuance of two major mining projects that allowed coal to be mined, but greatly reduced the environmental impacts by limiting the valley fills allowed.

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


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