EPA wants judge to deny surface mining injunction

CHARLESTON -- Lawyers for the U.S. Environmental Protection Agency urged a federal judge last week to turn down a request from the National Mining Association for a preliminary injunction.

The National Mining Association, in its filing last month, wants a court order barring the Obama administration from using a policy designed to limit surface mining.

The association sued the EPA and the Army Corps of Engineers over the issue in July.

The newest lawsuit seeks to overturn the policy, which the EPA unveiled in April.

The mining association says the agencies are illegally preventing mines from obtaining water quality permits to dispose of excess material by burying streams and are circumventing the normal rulemaking process in violation of the Administrative Procedures Act.

The new EPA policy tightened water quality standards in hopes of eliminating valley fills in West Virginia, Kentucky, Pennsylvania, Ohio, Virginia and Tennessee.

EPA lawyers argue the coal industry has so far shown an "utter lack" of harm to mine operators in its efforts to block the administration's crackdown on mountaintop removal, according to The Charleston Gazette.

In its case, pending in federal court in Washington, the mining association asked U.S. District Judge Reggie B. Walton for a preliminary injunction, requiring the industry to show "irreparable harm" if the injunction isn't issued.

EPA lawyers say the mining association pointed only to two examples of companies whose situations the group says meet the legal standard necessary for an injunction.

One company, the Gazette reported, is an Alabama mining firm that says delays caused by the agency may put it out of business in 18 months if its new permits are not approved.

However, the EPA says its new permit guidance is not being applied to mining operations in Alabama.

The mining association also pointed to a Kentucky company that the group says might abandon a project there because of the agency's new water quality guidance.

The EPA's response, according to the Gazette: "Assuming everything NMA alleges is correct the possibility that one company may have a proposed project that becomes unprofitable due to the detailed guidance is manifestly insufficient to warrant an injunction against EPA's regulatory efforts with respect to hundreds of permits throughout the Appalachian region.

"In contrast to the utter lack of irreparable harm demonstrated by NMA, significant environmental interests are at stake here. Consequently, the equities weigh in favor of allowing EPA and the Corps to review the permit applications in an orderly and coordinated framework."

Earlier this month, a coalition of regional environmental groups filed a motion to intervene in defense of the administration's crackdown on mountaintop mining.

The groups include: Earthjustice, the Sierra Club, Coal River Mountain Watch, Kentuckians For The Commonwealth, the Ohio Valley Environmental Coalition, the Southern Appalachian Mountain Stewards, Statewide Organizing for Community eMpowerment and the West Virginia Highlands Conservancy.

The groups say they are in support of the EPA's new Clean Water Act guidance and the agencies' joint permit review process.