Moreno

WASHINGTON – Water quality regulators who restricted mountaintop coal mining and defended the record behind their decision announce the rules and the record will change.

On June 6, assistant attorney general Ignacia Moreno advised U.S. District Judge Reggie Walton that "final guidance" on mountaintop mining would soon replace "interim guidance."

Moreno wrote that the Environmental Protection Agency would base final guidance on a different administrative record.

States and others suing EPA found the record behind the interim guidance inadequate, and they moved to supplement it with 703 documents.

Moreno responded that if Walton found the record so bare that it prevented review, the appropriate remedy would not be to supplement it with hundreds of documents EPA didn't consider.

"Rather, the appropriate remedy would be to remand the matter to the EPA to provide a further explanation for its decision," Moreno wrote.

Moreno indicated that further explanation would follow anyway, writing in a footnote that remand wasn't necessary because EPA would soon issue final guidance.

West Virginia, Kentucky, the National Mining Association, mining companies, and the city of Pikeville, Kentucky, have asked Walton to invalidate the interim guidance.

West Virginia environmental protection secretary Randy Huffman argued in a May 23 brief that EPA trampled on state regulation of coal mining and protection of water quality.

His lawyer, Michael Murphy of Charleston, wrote that EPA and the Army Corps of Engineers "seized control over the regulation of mining in West Virginia."

He wrote that EPA unilaterally rewrote federal statutes and avoided proper rule making procedures.

On the same day, Kentucky Coal Association argued that EPA actions "resulted in a virtual standstill in the development of new or expanded surface coal mines in Eastern Kentucky."

Mindy Barfield of Lexington wrote that among 38 EPA objections to water quality permits in the last ten years, 36 occurred since April 1, 2010.

"EPA imposed a legislative rule from headquarters and it became binding in the field immediately, leaving the Kentucky surface coal mining industry no time to have input into the rule or to conform its behavior to the new standards," she wrote.

On the same day, all plaintiffs moved to supplement the record.

"It is no surprise that the record is sparse," they wrote.

"EPA's actions surrounding the interim guidance do not bear any resemblance to the typical agency actions this court is accustomed to seeing that by their nature lend themselves to a well documented record memorializing the decision making process," they wrote.

On May 31, Barfield advised Walton on behalf of the city of Pikeville that the coal industry directly employs more than 4,300 individuals in Pike County.

Barfield wrote that since EPA issued the interim guidance, it has objected to all 21 permits the state submitted for surface mines in Eastern Kentucky.

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