Court Rules EPA Erred in Using Guidance To Impose Conductivity Test on Coal Mines

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The Environmental Protection Agency exceeded its authority under the Clean Water Act and two other laws by imposing a stream water conductivity standard on permit requests for surface coal mines in Appalachia, a federal district court ruled July 31 (National Mining Ass'n v. Jackson, D.D.C., No. 1:10-cv-1220, 7/31/12).

The U.S. District Court for the District of Columbia issued summary judgment for plaintiffs National Mining Association, the states of Kentucky and West Virginia, and other plaintiffs in a case that tested whether EPA could use a guidance document rather than a rulemaking to force permit applicants and state regulators to accept conductivity benchmarks as indicators of whether a mine's water pollution would be acceptable.

The agency argued to no avail that its guidance, aimed especially at disposal of waste rock in streams from mountaintop coal mines, was a nonbinding document to help EPA regional offices assess whether a mine's actions would violate Clean Water Act standards.

Plaintiffs argued that it was a thinly disguised standard, and that it was not issued in conformity to the standard-setting system established by the Clean Water Act.

The court agreed, saying that neither the Clean Water Act nor the Surface Mining Control and Reclamation Act (SMCRA) grants EPA the authority to impose its will by such a strategy. Nor does the Administrative Procedure Act allow a standard under those laws without proper rulemaking procedures, the court indicated.

'Time to Get Miners Back to Work'

“This is a huge victory for West Virginia and our coal miners,” West Virginia Gov. Earl Ray Tomblin (D) said in a statement issued July 31. The state Department of Environmental Protection was the appropriate agency to balance environmental protection and industry activity, he said.

“I'm in this fight until the end,” Tomblin said. “I won't allow these federal bureaucrats to kill the very industry that built our great state.”

The National Mining Association issued a statement applauding the ruling and describing EPA's actions as creating a “virtual moratorium” on Eastern coal mining permits.

“It is now time to get miners back to work by allowing the state permitting agencies to do their jobs,” NMA said.

EPA had no immediate response to the ruling.

EPA's Third Recent Loss on Mining

The decision was the third recent ruling that found EPA is overreaching its authority in its efforts to reduce coal mining pollution.

The ruling on the conductivity standard is the second decision in a case in which Judge Reggie B. Walton also ruled, in December, that EPA had no authority to enhance its role in permitting responsibilities properly assigned to the U.S. Army Corps of Engineers under the Clean Water Act. EPA has already indicated it intends to appeal that decision.

Judge Amy Berman Jackson of the same district court ruled in March that EPA had no authority to veto a Clean Water Act Section 404 dredge-and-fill permit after the U.S. Army Corps of Engineers had issued the permit.

EPA is appealing that ruling in its attempt to restrict the disposal of waste from a mountaintop mine operated in West Virginia by an Arch Coal Inc. subsidiary (Mingo Logan Coal Co. v. EPA, D.C. Cir., No. 12-5150, brief filed 7/18/12; (140 DER A-27, 7/23/12).

'Comply-or-Else Attitude'

EPA issued its conductivity guidance in 2010 in draft form but gave it immediate effect. The final form was issued in 2011. It established numerical benchmarks for conductivity as indicators of when dissolved minerals in streams pose a threat to aquatic life.

EPA argued in court that the guidance could not be considered a final decision subject to court review, because it merely clarified for EPA field offices their options. But plaintiffs cited examples of the field offices treating the guidance as if it were a binding obligation to apply the conductivity benchmarks.

The court agreed and noted that EPA has a history of trying to treat guidances as binding while putting statements in the guidances saying they were nonbinding. The U.S. Court of Appeals for the District of Columbia Circuit referred to such claims as “boiler-plate” when it set aside an EPA guidance in a Clean Air Act case, Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021 (D.C. Cir. 2000).

The essential question is whether a guidance has the practical effect of rulemaking, and the U.S. district court concluded there was adequate evidence that the conductivity guidance was being treated as a rule or standard.

“Indeed, the EPA's own affidavits convey what the Court construes as a comply-or-else attitude in regard to the review process,” the court ruled, referring to the EPA role in reviewing permit requests.

States Issue NPDES Permits

The plaintiffs argued not only that EPA was overreaching in its interference with Clean Water Act Section 404 dredge-and-fill permits but that it was intruding on state authority to issue Section 402 National Pollutant Discharge Elimination System (NPDES) permits.

The Clean Water Act is meant to create a collaborative relationship between the federal government and states, with states taking the lead on permitting if their regulatory oversight is judged sufficiently strict. All Appalachian states have EPA approval to administer NPDES permitting regimes for coal mining projects.

Those permitting regimes include estimates of pollution potential from a mine, the estimates being made through what is called a “reasonable potential analysis.”

Plaintiffs in the conductivity case argued that EPA was usurping state authority on when to make a reasonable potential analysis--whether before or after a permit is issued--and what to include in the analysis, such as including a conductivity benchmark.

The court agreed. “In other words, by presuming anything with regard to the reasonable potential analysis, EPA has effectively removed that determination from the state authority,” the court said. “And there can be no question that a plain reading of the regulation leaves that determination, and the decision as to when it must be made, solely to state permitting authorities.”

The court added that EPA could amend the regulation through a rulemaking consistent with the Administrative Procedure Act and statutory authority. “Until it does so, however, it cannot make the reasonable potential determination for the states.”

By Alan Kovski  

The decision of the U.S. District Court for the District of Columbia in National Mining Ass'n v. Jackson is available at