Federal judge rules in favor of W.Va. in mining suit

By Kyla Asbury | Oct 7, 2011


CHARLESTON – A federal judge ruled Thursday that the U.S. Environmental Protection Agency's Enhanced Coordination Process exceeded its authority by the Clean Water Act.

The lawsuit was filed against the EPA to free up coal mining permits delayed by the organization's two-year-old "Enhanced Coordination Process."

The ruling will allowed Section 404 permits issued by the U.S. Army Corps of Engineers to be normally processed again.

Gov. Earl Ray Tomblin applauded the federal judge's ruling in the lawsuit.

"This is indeed a great day for West Virginia and West Virginia's mining industry," Tomblin said. "As we stated over a year ago, the EPA and the Obama Administration have been exceeding the authority granted to them by Congress to regulate water quality in the Appalachian Basin."

Tomblin said they believe in the rule of law and the judge has confirmed their assertions against the EPA.

"The DEP is pleased the judge agreed with our determination that the EPA had overstepped its boundaries," said DEP Cabinet Secretary Randy Huffman. "This puts the Corps of Engineers back into the area of regulatory stability. Now we can focus on the process outlined in the law and rules rather than on these unlawfully promulgated processes."

So did U.S. Senator Jay Rockefeller.

"West Virginia deserves and must have certainty about the regulatory landscape so that our miners can do their jobs and know where they stand," Rockefeller, D-W.Va., said. "This ruling confirms that the EPA went too far. Under the law, no federal agency can change the rules of the game of its own accord without going through the full public process.

"It is imperative that government and industry find a way to work together to address environmental issues and move us forward with coal production."

U.S. District Court for the District of Columbia Judge Reggie Walton overturned EPA's review process for state mining permits that the EPA was using to delay and impede mining operations in West Virginia and other Appalachian states.

The lawsuit was filed one year ago by West Virginia, the National Mining Association and others against the EPA and the Army Corps of Engineers, claiming that the "Enhanced Coordination Process" and EPA's April 1, 2010 Interim Guidance Document violated the Clean Water Act and the Administrative Procedures Act.

The case began under Sen. Joe Manchin, then governor, and has been aggressively pursued under Tomblin.

In the Oct. 6 ruling, the court ruled on part of the state's claims against the EPA, granting the National Mining Association and the state's joint motion for partial summary judgment.

Ben Bailey of Bailey & Glasser, who represents the state in the suit, argued the motion on behalf of the state in Washington, D.C. on Sept. 16, along with lawyers for the National Mining Association.

The court issued a written opinion granting the motion, holding that by implementing the new review process, the EPA had exceeded its statutory authority under the Clean Water Act because the U.S. Army Corps of Engineers is the principal permitting authority of these types of mining permits, while the EPA plays a lesser, supporting role under the Act.

The court also held that the EPA had violated the Administrative Procedures Act by effectively amending the Section 404 permitting process by conferring additional reviewing authority on the EPA through the Enhanced Coordination Process without engaging in notice-and-comment rule making.

The court ordered that the Enhanced Coordination Process be set aside—allowing Section 404 permits to return to normal processing.

This ruling successfully resolves half of the state's claims against the EPA. The state's challenge to the EPA's April 1, 2010 Interim Guidance and the Final Guidance issued in July remain pending in the D.C. District Court, where the state is joined by the Commonwealth of Kentucky, the Kentucky Coal Association, the City of Pikeville, Ky., and the National Mining Association, along with five private Kentucky-based coal companies.

"Today's ruling is only half the battle," Huffman said. "The other major piece of the suit won't be heard until next spring. The allegations are the same—the Guidance Document is EPA's attempt to promulgate water quality standards outside of the normal rule-making procedures. Those standards impact the DEP's permitting process."

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