Tomblin files brief on behalf of State in Mingo Logan-EPA case

By Jessica M. Karmasek | Sep 20, 2012



WASHINGTON - Gov. Earl Ray Tomblin, in an amicus brief filed Wednesday, is lending his support to Mingo Logan Coal Co. in its ongoing legal battle against the federal Environmental Protection Agency.

The EPA is attempting to revoke Mingo Logan's Clean Water Act Section 404 permit to mine the Spruce No. 1 mine in Logan County.

"Hundreds of miners are out of work because of the unjustified attacks on West Virginia coal miners and their families," Tomblin said in a statement Wednesday.

"I will not back down until the federal EPA finally acknowledges -- once and for all -- that it's overstepping its bounds."

The Army Corps of Engineers issued the Spruce permit in 2007. The EPA vetoed the permit almost three years later, even though the West Virginia Department of Environmental Protection had certified that the coal company's operations complied with state water quality standards and applicable mining regulations.

In March, the U.S. District Court for the District of Columbia reversed the EPA's veto, siding with Mingo Logan and the State of West Virginia.

Judge Amy Berman Jackson, in a lengthy written decision, criticized the agency's actions and concluded that it lacked the statutory authority to revoke the Spruce permit.

The EPA appealed Jackson's decision to the U.S. Court of Appeals for the District of Columbia Circuit in July.

The State's "friend of the court" brief argues that the D.C. Circuit should affirm the lower court's decision, vacating the EPA's veto.

In particular, it contends the agency "invaded" the Corps' authority under the CWA and "harmed" Mingo Logan.

"More importantly to the State, the EPA also usurped the State's rightful place as the primary protector of its waters under the CWA and the primary regulator of mining under SMCRA (Surface Mining Control and Reclamation Act)," Michael B. Hissam, an attorney at Charleston law firm Bailey and Glasser LLP, wrote in the State's 18-page filing.

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State of West Virginia U.S. Environmental Protection Agency (EPA)

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