Appeals court upholds EPA's authority to push for more stringent standards for mining permits

bestep@herald-leader.comJuly 11, 2014 

A federal appeals court ruling said the Army Corps of Engineers could ignore health and safety issues in permitting mountaintop-removal mining at a James River Coal subsidiary on the Knott-Perry county line.

Federal environmental regulators did not exceed their authority in pushing new standards to judge whether proposed surface mines in Appalachia would damage water quality and aquatic life, a federal appeals court ruled Friday.

The ruling came in a case that has generated a good deal of heat, pitting federal regulators and environmentalists against state authorities, the coal industry and business groups.

Environmental groups hailed Friday's decision from a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.

"This federal court decision is a victory for the clean water that is essential to Southeastern Kentucky's bright future," said Doug Doerrfeld of Kentuckians for the Commonwealth, which was one of the groups supporting the EPA's recommendation for tougher standards in surface-mining permits.

Mary Ann Hitt, head of the Sierra Club's Beyond Coal Campaign, said the decision affirmed that the EPA plays a critical role in overseeing permit decisions by state officials.

"Appalachian rivers, streams and communities have a fighting chance now that EPA is free to do its job," Hitt said in a statement.

Some supporters of the mining industry were not pleased. Rep. Shelley Moore Capito, R-W. Va., told The Associated Press that the decision would allow the EPA to delay mine permits and cost the state jobs.

However, the federal agency said it is working with states, mining companies and the public to enable environmentally responsible mining projects to move forward, according to the AP.

The issue in the case decided Friday was a document the EPA issued in 2011 that recommended more stringent standards in deciding whether to grant applications for surface-mining permits.

In Kentucky and most other coal states, state regulators review and issue mining permits, but the EPA has an oversight role and can object to permits.

The "final guidance" document issued in 2011 included, for the first time, a standard aimed at limiting conductivity in waterways below surface mines.

Conductivity is a measure of the level of substances such as sulfates and dissolved solids in water, which can leach out of rock crushed during mining. High conductivity is an indicator of a higher level of contaminants in mine runoff.

In mountaintop mining, companies blast the tops off hills and mountains in Appalachia and put excess rock in valleys, burying stream sections.

In announcing the guidelines, the EPA said there was mounting scientific evidence that drainage from surface mines and valley fills in Appalachia includes contaminants that hurt water quality and aquatic life.

The EPA objected to dozens of permits in Kentucky and other states.

The coal industry argued that the EPA put the new guidelines in place improperly and that the standards would cripple companies' ability to get permits in Eastern Kentucky and other parts of Appalachia.

In the first eight months after the EPA issued the guidelines on an interim basis, only two coal companies received federal water-pollution permits for mountaintop mines in Eastern Kentucky, and both rejected the permits, saying the conditions were too stringent to meet, the Herald-Leader reported in 2011.

The mining industry sued the EPA and the U.S. Army Corps of Engineers, which has a role in issuing surface-mining permits.

The states of Kentucky and West Virginia, which had argued their rules were sufficient to protect water quality, joined the industry.

Among other things, the industry and supporters argued that the guidance document's new limits on permits created roadblocks that were not authorized by law.

The appeals judges denied that challenge in a 3-0 ruling.

The panel said there was nothing in the guidance that changed the legal authority of the federal agencies involved.

Moreover, the judges concluded the guidance document was not binding — that it did not impose any requirements in order to get a permit, and that state officials did not have to follow it.

The guidance document may well signal that the EPA will reject permits that don't meet its recommendations, but if that happens, those denials can be challenged in court, the court said. Kentucky authorities have proposed new permit rules to try to resolve the EPA's concerns.

Luke Popovich, spokesman for the National Mining Association, said Friday's decision was disappointing, leaving the industry subject to EPA's "regulatory waterboarding."

However, he said the decision could work to the industry's benefit. It could add fuel to complaints by many in Congress about regulatory over-reach, for instance, Popovich said. The finding that EPA's guidance document is not legally binding also leaves an avenue of relief for mining companies, and almost seems to invite challenges, he said.

Bill Estep: (606) 678-4655. Twitter: @billestep1

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