Mountaintop Coal Mining Limits by EPA Upheld

     (CN) – Ruling against surface coal-mining interests, the D.C. Circuit upheld stricter clean-water standards the government set for states in issuing mining permits.
     In 2011, the Environmental Protection Agency issued a final guidance document advising states to adopt more stringent standards for issuing Clean Water Act permits to surface coal-mining projects.
     The document advises that surface mining may raise the salinity of water bodies, endangering aquatic life.
     “For the Appalachian region, the final guidance recommends that water conductivity levels not exceed 300-500 µS/cm (microSiemens per centimeter),” according to the judgment published Friday.
     These rules aim to restrict mountaintop removal mining, which is especially pervasive in Appalachia. This type of mining consists in blowing the tops of mountains to access underlying coal, and leaving the rubble to fall into water bodies below.
     Under the Clean Water Act, surface coal-mining companies must obtain a permit from the Department of Interior or a state permitting program to ensure that its proposed mining activity complies with environmental standards. If the project will discharge soil or pollutants into navigable waters, the mining company must obtain a second permit from the Army Corps of Engineers.
     The states of West Virginia and Kentucky, along with coal mining companies and associations, claimed in a federal complaint that the final guidance exceeded the EPA’s authority.
     Their complaint also targeted an “enhanced coordination process” that the EPA and corps adopted to improve collaboration by the agencies on issuing mining permits.
     Under the process, the EPA tries to identify mining practices that might violate environmental regulations by comparing information from permit applications with information in its database.
     A federal judge in Washington vacated the EPA’s efforts to curb mountaintop removal, but the D.C. Circuit reversed the decision Friday.
     “Nothing in the Enhanced Coordination Process has changed the substantive statutory responsibilities of the two agencies involved in the Section 404 permitting process,” Judge Brett Kavanaugh wrote for the three-judge panel. “The corps still makes the ultimate decision whether to approve the permit. So plaintiffs’ objection here is simply to enhanced consultation and coordination between two federal agencies. But no statutory provision forbids EPA from consulting with or coordinating with the corps, or vice versa.”
     The panel also found that the final guidance is not a final agency action reviewable by the courts.
     “If and when an applicant is denied a permit, the applicant at that time may challenge the denial of the permit as unlawful,” Kavanaugh said.
     Earthjustice, an environmental nonprofit involved in the case, praised the ruling.
     “The EPA did its job when it directed its staff to finally follow the law and science, and start protecting Appalachian waters and communities from mountaintop removal mining, which is associated with higher cancer, birth defects, and early death for people living nearby,” Earthjustice attorney Emma Cheuse said in a statement. “The coal industry continually fights for free rein to blow up mountains and dump waste all over Appalachia, and we’re glad to see clean water and healthy communities triumph today.”

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