Mountaintop removal coal mining operations need valley fill permits to dispose of the tons of waste rock blasted away to reach coal seams beneath the surface. Coal companies dump the rock into valleys beneath the coal-bearing mountains. The U.S. Environmental Protection Agency estimates that almost 2,000 miles of Appalachian headwater streams have been buried by mountaintop coal mining.
Mountaintop removal coal mining site at Buffalo Mountain in Logan County, West Virginia (Photo by Kent Kessinger courtesy Southwings and Appalachian Voices)
Judge Reggie Walton of the U.S. District Court for the District of Columbia Friday denied a motion by the U.S. EPA and the U.S. Army Corps of Engineers to dismiss the industry's lawsuit.
Judge Walton ruled, "The Court finds the plaintiff's arguments more persuasive and agrees that the plaintiff is likely to prevail on its claim that the EPA has exceeded its statutory authority" under the Clean Water Act by issuing a series of memoranda and a detailed guidance that strengthen the water quality standards that mountaintop removal mining operations must meet.
National Mining Association President and CEO Hal Quinn said, "These assorted actions have been used by EPA to impose a near-moratorium on coal mining permits in Appalachia and to justify the agency's most recent unprecedented veto of the Spruce No. 1 Mine permit."
The Spruce No. 1 mine, as proposed, would bury more than seven miles of headwater streams, impact 2,278 acres of forestland, and degrade water quality in streams adjacent to the mine in Logan County, West Virginia. The mine was permitted in 2007 and but delayed by litigation. The EPA vetoed its permit on January 13.
"The proposed Spruce No. 1 Mine would use destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and clean water on which they depend," EPA Assistant Administrator for Water Peter Silva said January 13. (ENS, Jan. 13, 2011)
Quinn said the National Mining Association was "encouraged" by the judge's ruling even though the court dismissed industry association's request for a preliminary injunction to block implementation of EPA's policies.
Quinn said the court agreed with the association's contention that the Clean Water Act envisions a much more limited role for EPA than has recently been pursued by the agency.
"It seems clear ... that Congress intended the EPA to have a limited role in the issuance of Section 404 permits, and that nothing in Section 404 of the Clean Water Act gives the EPA the authorization to develop a new evaluation or permitting process which expands its role," the mining association executive said.
Section 404 permits are issued by the United States Army Corps of Engineers "for the discharge of dredged and fill material into navigable waters at specified disposal sites." The Corps has sole authority to issue Section 404 permits, but in doing so it must apply guidelines that it develops in conjunction with the EPA.
In this lawsuit, the industry association alleges that the EPA "imposed substantive changes to the Section 404 permitting process by creating a new level of review by EPA and an alternate permitting pathway not contemplated by the current regulatory structure."
The industry is challenging a September 2009 assessment in which the EPA identified 79 coal-related pending Section 404 permits that would be subjected to a new "enhanced coordination process" the EPA established earlier in 2009, which the industry is also challenging in this case.
Although the federal agencies "vigorously" argued that that the memoranda and guidance impose no new substantive requirements on permit applications, Judge Walton wrote, "it is clear to the Court that the EPA has implemented a change in the permitting process."
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