DEP chief says EPA undermined state power

By Steve Korris | Jul 21, 2011

WASHINGTON – Federal regulators usurped West Virginia's authority when they delayed water quality permits for mountaintop coal mines, state environmental secretary Randy Huffman pleaded in federal court on July 13.

His lawyer, Benjamin Bailey of Charleston, wrote that the Environmental Protection Agency broke federal law when it introduced "enhanced coordination" of permit reviews.

He wrote that EPA violated provisions of the Clean Water Act allowing states to set their own standards.

He wrote that EPA enacted a binding substantive rule without opportunity for public notice and comment, in violation of the Administrative Procedure Act.

He wrote that EPA also violated the Act "by changing the statutory and legal landscape under which coal mining is regulated, shifting power away from the Corps to the EPA, and usurping the State of West Virginia's authority to protect its waters."

He wrote that enhanced coordination has delayed all types of mining permits in the state, including surface mining which operates outside the jurisdiction of EPA or the Corps of Engineers.

"Thus, the EC process did much more than enhance coordination between the two federal agencies," he wrote.

Huffman sued EPA in federal court at Charleston, but District Judge John Copenhaver transferred the case to Washington.

District Judge Reggie Walton consolidated Huffman's claim with a similar case before him, from the National Mining Association.

Both sides moved for summary judgment.

When Bailey read EPA's motion, he couldn't recognize his own argument.

According to his July 13 response, EPA asked Walton to reject Huffman's claims under the Clean Water Act's statement of intent and its citizen suit provision.

"Federal defendants attack West Virginia's claims based on the erroneous premise that the State has states claims for relief under both of those provisions," he wrote.

"West Virginia's challenges to the EC process are much broader than federal defendants would have this court believe," he wrote.

He wrote that they misrepresented the state's claims and took its words out of context.

Bailey leads the firm of Bailey and Glasser in Charleston.

His associates Michael Murphy, Sherrie Armstrong and Gregory Porter worked on the brief.

Walton plans a hearing on summary judgment motions on Sept. 2.

He plans an Oct. 11 hearing on motions pertaining to EPA's "interim detailed guidance," a separate feature of the agency's resistance to mountaintop mining.

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