Mining companies blame EPA for industry woes

By Kelly Holleran | Aug 17, 2010

WASHINGTON, D.C. – In a recently filed lawsuit, the coal-mining industry lays blame on the Environmental Protection Agency and other branches of the Obama administration for imposing significant delays on surface coal mining and for making it increasingly difficult to obtain permits that allow for mining operations.

National Mining Association filed a lawsuit July 20 in U.S. District Court against Lisa Jackson, the administrator of the EPA; the EPA; John McHugh, secretary of the army; Lieutenant General Robert L. Van Antwerp; and the U.S. Army Corps of Engineers.

In its lawsuit, the National Mining Association claims in January 2009 the EPA initiated extra steps in the review process it uses to evaluate permits under the Clean Water Act. In June 2009, the EPA issued a memorandum of understanding to formalize the extra-regulatory review process of the Clean Water Act, the suit states. In addition, it recommended the Corps deny permits that it was poised to issue, according to the complaint.

"Since the release of the MOU and announcement of the EC process, the Corps permit backlog had grown to more than 235 permits by July 30, 2009, and several companies have since withdrawn their 504 applications," the complaint says.

Along with the MOU, the EC process is an additional step that increases the amount of time and difficulty it takes the Corps to authorize mining permits, the National Mining Association claims.

"While EPA describes a 60-day EC Process, as written, the 60-day period does not actually begin until the Corps initiates the EC Process, and there is no binding requirement for the Corps to do so in a timely fashion, in direct contrast to the permitting processing timelines," the suit states. "In fact, EPA has instructed the Corps that the 60-day period for EC Process discussions does not commence until after the Corps , EPA, and permit applicant have held multiple negotiation sessions, which effectively could delay initiation of the EC Process indefinitely."

At the basis of its lawsuit, the National Mining Association wants to see a new surface mining policy overturned. The policy tightened water quality standards for valley fills at surface mines in West Virginia, Kentucky, Pennsylvania, Ohio, Virginia and Tennessee.

The new policy is so strict that even if coal mining production ceased, water levels would still be over the policy limits, according to the complaint.

"On information and belief, these levels are, for many streams in the Appalachian region, lower than naturally-occurring background," the suit states. "Moreover, the draft report contains express limitations that make these levels wholly inappropriate to apply 'as a general matter.'"

In its complaint, the National Mining Association wants the court to declare that the EPA and the Corps violated the APA in issuing and implementing the EC Process and the MCIR Assessment without following APA procedures and to declare that the EC Process, the MCIR Assessment and the Detailed Guidance are contrary to federal law.

In addition, it wants the court to declare that the EPA exceeded its statutory role in the permitting process, to declare that the EPA is imposing unreasonable delay, to order the EPA to vacate the EC Process, the MCIR Assessment and the Detailed Guidance and to prevent the EPA from enforcing any of the three processes.

It would also like the court to order the Corps to process all pending 504 permits and to grant the National Mining Association other relief it deems just.

Katie Sweeney and Karen C. Bennett of Washington, D.C., and John C. Martin and Kirsten L. Nathanson of Crowell and Moring in Washington, D.C., will be representing the National Mining Association.

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