State wants judge to repeal delay on water quality permits

By Steve Korris | May 6, 2011

WASHINGTON – West Virginia environmental protection secretary Randy Huffman asks U.S. District Judge Reggie Walton to repeal federal procedures that delay water quality permits for mountaintop mines.

On May 2, Huffman supported the National Mining Association in seeking judgment that the U.S. Environmental Protection Agency exceeded its authority by adopting "enhanced coordination" in 2009.

"All of the permitting that affects coal mining in West Virginia has been delayed and impeded by the EC process," wrote his lawyers, from Bailey and Glasser in Charleston.

Huffman sued EPA at federal court in Charleston, but District Judge John Copenhaver transferred the suit to Walton in January, as a duplicate of the mining association's suit.

Earlier in the month, Walton had denied a motion from EPA to dismiss the association's suit.

He didn't grant immediate relief to the association, finding no threat of irreparable harm, but his skeptical view of enhanced coordination invited further action.

He found nothing in the Clean Water Act authorizing EPA to develop a new evaluation or permitting process that expands it role.

He wrote that EPA encroached on the role the Clean Water Act carved out for states.

The mining association moved for partial summary judgment, and Huffman filed a memorandum in support for West Virginia.

His lawyers wrote that EPA and the Army Corps of Engineers announced enhanced coordination without consulting states as the Clean Water Act required.

"As a result, EPA and the Corps have usurped the state's primary role in controlling water pollution under the Clean Water Act," they wrote.

They wrote that the state stands idly by while permit applicants are trapped in a circular process.

"The EC process can be described in a single word: delay," they wrote.

They wrote that decisions are not being made anywhere close to a 60 day requirement for the Corps or a 90 day timeline under the Clean Water Act.

"The permitting backlog caused by the EC process has all but frozen the other permitting processes for coal mining operations in West Virginia," they wrote.

"This court should restore the state's proper role as the primary protector of water quality under the Clean Water Act, and order the Corps to process and review all pending mining permits pursuant to the properly codified and mandatory scheme in place before the EC process suddenly altered the statutory and regulatory landscape," they wrote.

They wrote that EPA targeted the process at six Appalachian states, West Virginia, Ohio, Pennsylvania, Virginia, Tennessee, and Kentucky.

They wrote that 23 West Virginia applications were selected for the process.

They wrote that the Corps issued three permits, applicants withdrew nine, and 11 still await the start of the process.

They wrote that Huffman hosted meetings as a courtesy but didn't participate in a meaningful way.

They wrote that he can't offer applicants any direction or guidance on navigating the process.

They wrote that review of separate water quality permits under surface mining reclamation law has been "caught up in the EC process quagmire."

"As a result of clearly unauthorized actions by EPA and the Corps, the state has been unable to perform its statutorily authorized duties and to administer its regulatory programs in accordance with state and federal law," they wrote.

They wrote that West Virginia should be given an opportunity to ask why permits from only six states are subject to the process.

They wrote that the state is entitled to ask about motivations for implementing the process.

Michael Murphy of Bailey and Glasser signed the brief, adding the names of colleagues Benjamin Bailey, Sherrie Armstrong and Gregory Porter.

Walton has set a hearing for Sept. 16.

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