On behalf of the State of West Virginia, Gov. Earl Ray Tomblin along with Department of Environmental Protection (DEP) Secretary Randy Huffman announced the filing of the final brief on the merits of their lawsuit against the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers over federal policies that have hindered the issuance of new mining permits in the Appalachian Region.
"This lawsuit is about the rights of our state to regulate itself within the scope of the existing federal and state laws," Gov. Tomblin said. "The EPA has overstepped its bounds, taken that right away and we're simply fighting to get it back. Just last week, a federal judge reversed the EPA's decision on the Spruce No. 1 mine concluding that the federal agency did not have the authority to change course and exceeded its authority under the Clean Water Act. I believe that ruling further clarifies our position in this case: the EPA has gone too far."
The brief was filed in U.S. District Court in Washington, D.C. It culminates the state's challenge to the EPA which, through questionable and unlawful actions, has implemented policies and procedures that usurp the state's authority over mining and have delayed the issuance of permits. The case began under Gov. Joe Manchin and has been aggressively pursued under Gov. Earl Ray Tomblin.
Two years ago, the DEP, National Mining Association and others filed suit against the EPA and the Corps, claiming the "Enhanced Coordination Process" (EC Process) being used to review Section 404 valley fill permits and the EPA's 2010 Interim -- and now Final -- Guidance Document for issuing water quality permits violated the Clean Water Act, the Surface Mining Control and Reclamation Act and the Administrative Procedures Act.
Last year, U.S. District Judge Reggie Walton ruled in favor of the DEP and the state in their challenge to the EC Process. In a written opinion, Walton said by using the EC Process, the EPA had exceeded its statutory authority under the Clean Water Act because the Corps is the principal permitting authority for 404 permits. 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 EC Process without engaging in notice-and-comment rulemaking. Accordingly, the court ordered the EC Process be set aside, allowing Section 404 permits to return to normal processing.
Still pending in D.C. District Court is the state's challenge to the EPA's Final Guidance Document, issued in July 2010. The state claims the Guidance Document is the EPA's attempt to promulgate water quality standards outside of the normal rule-making procedures. The EPA has used the Document to impose conductivity and other overly restrictive standards to water quality permits, delaying the issuance of permits throughout Appalachia. A hearing on the state's challenge to the Guidance Document is scheduled for June 1, 2012, in Washington, D.C.
Gov. Tomblin praised Judge Walton for his previous ruling in favor of West Virginia and its mining industry. "I expect a similarly favorable result in this second half of our challenge to the EPA," Gov. Tomblin said. "The EPA continues to exceed the authority granted to it by Congress in regulating water quality in the Appalachian Basin and it must stop."
Sec. Huffman said drafting a water quality permit for coal mining that requires EPA approval is a grind. "But even more frustrating is that we're trying to hit a moving target. We're recognized by the EPA as having one of the best permitting programs in our region, but the EPA's actions don't reflect that," Huffman said.