James Tawney and Julian Martin test streams for conductivity, a key indicator of water quality. photo by Vivian Stockman

The Industry Wins a Procedural Ruling, We Carry On…

In July 2010, a coal industry coalition led by the National Mining Association (NMA) filed a lawsuit against the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps).

In April that year, the EPA had released staff guidelines (that led to the Final Guidance on Appalachian Surface Mining Coal Mining under the Clean Water Act, National Environmental Policy Act, and Environmental Justice Executive Order). The NMA claimed that the guidelines unlawfully obstruct permitting of surface mining operations.

According to OMB Watch, the "EPA issued the new guidance after extensive scientific research showed that (the) ‘valley fill’ method causes pollution in downstream drinking water sources and endangers the health and safety of surrounding communities."

In the same lawsuit, filed in the US District Court for the District of Columbia, the NMA also sued over memoranda issued in 2009 by the Corps and EPA.　 In these memoranda, the agencies had agreed to a joint review process, where the agencies would coordinate their review of 108 then-backlogged permit applications for mountaintop removal mine waste disposal; the 108 had raised serious environmental concerns. 　

In October 2010, OVEC and several other groups intervened in the case in support of the EPA and the Corps. We are represented by Earthjustice and Appalachian Mountain Advocates, and are joined by Coal River Mountain Watch, West Virginia Highlands Conservancy, Kentuckians For The Commonwealth, Southern Appalachian Mountain Stewards, Statewide Organizing for Community eMpowerment, and Sierra Club as intervenors in this action.

This October, the NMA received a partial judgment in the case, a ruling in its favor on the matter of the memoranda on the joint review process.

The court found that the process violated notice and comment, and that EPA’s involvement in the 2009 coordinated review process was unlawful, as the Corps is the lead permitting agency under Section 404 of the Clean Water Act’s "dredge and fill" authorizations for valley fills. As a result, the court set aside (or vacated) the process memoranda.　

We and the United States disagree with the court’s ruling. We are still considering our options regarding possible next steps, in communication with our counsel and fellow intervenors.

At the time of the court’s ruling, there were 21 permit applications covered by the 2009 memoranda, including 13 in Kentucky and 8 in West Virginia that remained pending under enhanced coordinated review, and the coordinated review had begun on 4 of these 21.

More than 50 miles of mountain streams are threatened with destruction by these pending permit applications if the Corps and EPA do not exercise their legal authority and responsibility to ensure compliance with the Clean Water Act and prevent unacceptable harm to our waters and local communities.

The court’s October ruling has no effect on any other pending permit applications, which are not subject to the 2009 memoranda. It also has no effect on EPA’s historic decision to withdraw the Spruce No. 1 Mine permit in regard to Oldhouse and Pigeonroost Branches, although industry is claiming otherwise in a separate lawsuit to overturn that veto determination.

In the Spruce case, OVEC is participating as an Amicus Curiae (or "friend of the court") in support of EPA, along with WVHC, CRMW and Sierra Club, and is also jointly represented by Appalachian Mountain Advocates and Earthjustice in this case.

Charleston Gazette journalist Ken Ward Jr. blogged in his Coal Tattoo: "Keep in mind that most of the permits that were backlogged have either been issued, or have had applications withdrawn by the mine operators. And in other instances, mine operators or the Corps haven’t really started the process of coordinating and consulting with EPA to try to figure out how to reduce potential impacts of mining proposals.

"Perhaps mine operators who have withdrawn applications or not moved forward with projects on the backlog list will now try to get those operations moving forward. But if they do, they’ll still have to face the EPA water quality guidance, at least for now."

Hearing the news, DEP Chief Randy Huffman at first gushed, "We won. This was a 100 percent victory." (We guess he was clarifying things for anyone who still wondered whether or not he cares about the communities he is supposed to protect.) Later, he back-pedaled a bit, noting that the "ruling is only half the battle. The other major piece of the suit won’t be heard until next spring."

Ward blogged: "EPA’s effort to reduce the impacts of Appalachian coal mines on the local environment and the region’s residents is certainly far from over. In fact, most observers I talk to think the next round (in this case) – legal arguments over EPA’s landmark water quality guidance is far more significant in the long run. And US District Judge Reggie Walton has put off briefing on that matter until next spring, with a motions hearing not scheduled until June."

In a statement released on the ruling, EPA officials also noted that this ruling only pertains to part of the case. The agency sought to assure Appalachian families that the ruling "was a procedural decision that does not affect our Clean Water Act authority to protect them from public health and environmental impacts caused by poor coal mining practices."

"While the coal industry may have succeeded in part of one lawsuit against government agencies, we will continue to support the EPA in their role protecting US families, waters and local communities, and ensure that those protections become stronger," said Ed Hopkins, Director of the Sierra Club’s Environmental Quality Program. "We will continue working to protect mountains and streams, even as the coal industry tries to continue destroying them."

If you are in need of a good emetic, be sure to check out all the comments "Appalachian political leaders – meaning friends of the coal industry" made on this ruling by reading Ward’s blog "What next for Obama permit crackdown?" at http://bit.ly/rcKlFS. You’ll also learn a lot more about the ruling and the history of the case.

Ward’s blog ends: "So now what? Well, of course, missing in general from all of this is – once again – any real discussion from anyone in West Virginia in any position of political power about what could or should be done to address the ‘pervasive and irreversible’ impacts that mountaintop removal is having on the environment and on coalfield communities. And not for nothing, but there’s still that troublesome forecast that, no matter what EPA does about mountaintop removal, coal production in Central Appalachia is getting ready to plummet."