Court Throws Out EPA's Mining Guidance

In a much-anticipated ruling, U.S. District Judge Reggie B. Walton, ruled that U.S. Environmental Protection Agency exceeded its authority under the Clean Water Act and its very limited participation in Surface Mining Control and Reclamation Act (“SMCRA”) programs.  This yet another ruling in a long and ever growing list of examples of the Obama administration’s EPA exceeding its statutory authority.  Most recently, the D.C. District Court had held that the EPA had improperly usurped the US Army Corps of Engineer’s role in issuing Section 404 (valley fill) permits in NMA v. Jackson, 816 F.Supp.2d 37 (D. D.C. 2011) (Walton, J.) and had illegally used its veto power to revoke a validly-issued Section 404 permit in Mingo-Logan Coal Company, Inc. v. EPA, 2012 WL 975880 (D.D.C. 2012) (Jackson, J.).

In this case, (also styled NMA v. Jackson) the focus is primarily on SMCRA permits and Section 402 pollutant discharge permits (“NPDES permits”).  EPA published a “Final Guidance” relating to the discharge of water with “conductivity” into Appalachian streams.  Conductivity is a measure of the water to conduct an electrical current.  Water becomes conductive as concentrations of dissolved solids, i.e. salts, rise. The Court found that EPA’s Final Guidance – while on its face was discretionary – mandated that state-run SMCRA permitting agencies and state-run NPDES permitting programs incorporate the Final Guidance requirements into all permits.  Thus, each SMCRA permit issue would include the EPA-mandated “Best Management Practices.” Each NPDES permit would be put through a reasonable potential analysis for conductivity, and since EPA’s Final Guidance included a presumption that conductivity causes violations of a state’s narrative water quality standard, every permit would have to be issued with some limit on the discharge of water with conductivity.

Judge Walton found that EPA’s insertion of its own mandatory requirements for the construction of surface mines and for the issuance of NPDES permits improperly overtook the state SMCRA and NPDES permitting regimes.  In other words, the states are charged with issuing SMCRA permits and NPDES permits, and EPA removed the state’s discretion with respect to conductivity.  Accordingly, the Court struck down the Final Guidance as an agency action exceeding statutory authority. Judge Walton acknowledged that his ruling did not address how to strike a balance between “the need to preserve the verdant landscape and natural resources of Appalachia and, on the other hand, the economic role that coal mining play in the region.”

The ruling is considered a victory for the mining industry that has been crippled by EPA’s standards in issuing mining permits.  Opponents of mountaintop removal mining, including those who recently protested and were arrested at Boone County’s Hobet mine, have expressed disappointment with the decision.  However, the decision did not reach the underlying substantive “science” advocated by EPA – that conductivity at extremely low levels impairs streams.  The decision merely held that the manner in which EPA sought to impose its view of the “science” – by mandating state agencies follow EPA’s view of the science wholesale -- was improper.  EPA can still exercise its authority to lodge “specific objections” to NPDES permits that do not have conductivity limits.  While the case represents a major victory for the coal industry, the battle over conductivity and its true effect on Appalachian streams is far from over.