EPA 'guidance' using water conductivity to measure water pollution from strip mines is upheld on appeal

James River Coal Co. mine in southeastern Kentucky

A federal appeals court has upheld the Environmental Protection Agency's scheme for reducing water pollution from mountaintop-removal and other large-scale surface coal mines.

A three-judge panel of U.S. Court of Appeals for the District of Columbia ruled unanimously that EPA's "guidance" to states and the Army Corps of Engineers for issuing permits under the Clean Water Act is just that — and not subject to legal challenge "at least at this point," Ken Ward Jr. points out for The Charleston Gazette.

The guidance relates to the electrical conductivity of water downstream from the mines, which is a rough measurement of "the level of substances such as sulfates and dissolved solids in water, which can leach out of rock crushed during mining," Bill Estep explains for the Lexington Herald-Leader.

After it issued the final guidance in 2011, "EPA objected to dozens of permits in Kentucky and other states," Estep notes. "The coal industry argued that the EPA put the new guidelines in place improperly and that the standards would cripple companies' ability to get permits in Eastern Kentucky and other parts of Appalachia. In the first eight months after the EPA issued the guidelines on an interim basis, only two coal companies received federal water-pollution permits for mountaintop mines in Eastern Kentucky, and both rejected the permits, saying the conditions were too stringent to meet, the Herald-Leader reported in 2011."

The decision overturned the ruling of a D.C. district judge. "The judges concluded the guidance document was not binding — that it did not impose any requirements in order to get a permit, and that state officials did not have to follow it," Estep reports. "The guidance document may well signal that the EPA will reject permits that don't meet its recommendations, but if that happens, those denials can be challenged in court, the court said. Kentucky authorities have proposed new permit rules to try to resolve the EPA's concerns."

Estep adds that Luke Popovich, spokesman for the National Mining Association, "said the decision could work to the industry's benefit. It could add fuel to complaints by many in Congress about regulatory over-reach, for instance, Popovich said. The finding that EPA's guidance document is not legally binding also leaves an avenue of relief for mining companies, and almost seems to invite challenges, he said."

Read more here: http://www.kentucky.com/2014/07/11/3333022/appeals-court-upholds-epa-recommendation.html#storylink=cpy

West Virginia Gov. Earl Ray Tomblin said the decision “could create an endless regulatory loop that adversely affects the ability to issue permits. . . . We, in consultation with the other litigants, will continue to explore our legal options after additional review of the ruling.” Ward reports, "Bill Raney, president of the West Virginia Coal Association, said the experience of coal companies he’s talked to is that the EPA and state officials are treating the agency’s guidance as if it’s binding, and that permits aren’t issued if they don’t comply with it."