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EPA Appeals Decision Overturning Guidance on Coal Mine Permitting in Appalachian States

11.13.2012

As reported in the July/August 2012 issue of the Environmental Letter, on July 31, 2012, the federal district court for the District of Columbia ruled in the case of National Mining Association v. Jackson, that EPA exceeded its statutory authority when it issued its July 21, 2011 Final Guidance memorandum on coal mining permitting in Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia.  On October 9, 2012, EPA gave notice that it would appeal this decision to the U.S. Court of Appeals for the District of Columbia.

EPA’s Guidance instructed EPA regional offices to object to NPDES permits for surface mining operations in the affected states, to the extent that the discharges from those mines were anticipated not to meet a conductivity “benchmark” established by EPA.  Industry groups and the states of Kentucky and West Virginia argued that the Guidance impermissibly established a state water quality standard for conductivity.  Under the Clean Water Act, the establishment of such standards is the primary responsibility of states, not EPA.  The court also found that the Guidance unlawfully interfered with state permitting authority under the Clean Water Act and the Surface Mining Control and Reclamation Act (SMCRA) in other important respects.

The National Mining Association case was viewed as a major victory for the mining industry, and the appeal will be closely watched by industry, state regulatory authorities, and other interest groups. At this point, none of the parties has filed its opening brief with the D.C. Circuit, and a final decision will likely not be issued in the case for several months.  We will continue to monitor the status of this case as it progresses on appeal.

To view a complete PDF of the September/October 2012 issue of the Environmental Letter, click HERE.

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