Walton

WASHINGTON – U.S. District Judge Reggie Walton didn't overturn new restrictions on Appalachian coal mining, but he left no doubt he could do it later.

Walton whacked business and government on Jan. 14, denying an injunction to mine owners while rejecting the Environmental Protection Agency's bid to close the case.

He wrote that the National Mining Association was likely to prevail on a claim that EPA exceeded its authority under Section 404 of the Clean Water Act.

Section 404 regulates the discharge of dredged and fill material into navigable waters.

Walton wrote that nothing in the section authorizes EPA to develop a new evaluation or permitting process which expands its role.

He wrote that EPA encroached on a role carved out for states under the act.

"In short, the EPA has modified the Section 404 permitting scheme, authority not granted to it under the Clean Water Act, and has similarly taken an expansive role beyond what was afforded to it in determining Section 303 water quality standards," he wrote.

He wrote that the association was likely to succeed on the merits of a claim that EPA adopted legislative rules in violation of the Administrative Procedures Act.

He denied the mining association's injunction because members showed harm in the past but not in the future.

"If a plaintiff has shown that financial losses are certain, imminent, and unrecoverable, then the imposition of a preliminary injunction is appropriate and necessary," he wrote.

"Here, however, the plaintiff has not demonstrated the certainness or the imminence of any of its members' losses," he wrote.

The association didn't even show the losses were unrecoverable, he wrote.

He wrote that engineer James Higgins, of Simmons Fork Mining, testified that favorable resolution of the case would allow the company to recoup most or all its losses.

In January 2009, EPA questioned the legality of pending Section 404 permits in letters to the Army Corps of Engineers, which issues the permits.

In June 2009, EPA issued memoranda on a process that would refer some permits to the Corps and others to "enhanced coordination."

In September 2009, EPA identified 79 coal related permits for enhanced coordination.

Last April, EPA established regional standards not only for Section 404 permits but also for Section 402 permits, which states issue to regulate discharges of pollutants.

The mining association sued EPA administrator Lisa Jackson, who moved to dismiss.

She argued the association sued prematurely because enhanced coordination and regional standards didn't constitute final agency action.

She argued the association lacked standing because it showed no procedural injury.

Walton rejected both arguments.

"The federal defendants' view of what amounts to finality is too narrow, as it is possible for an agency to take final agency actions during a permit assessment process prior to actually determining whether to grant or deny an application for a permit," he wrote.

He wrote that EPA clearly implemented a change in the permitting process.

He wrote that enhanced coordination imposed unequivocal requirements.

He wrote that EPA applied its April "guidance memorandum" in a binding manner and implemented it even though it continues to receive comments.

He granted standing to the association, finding EPA imposed additional processes not contemplated or set forth in Section 404.

He found support for allegations of notice and comment violations, and he found support for allegations of injury in the form of additional, illegal process.

He wrote that whether the current or the prior Administration complied with the Administrative Procedures Act or the Clean Water Act was left for another day.

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