EPA water pollution limits vacated by federal court

A federal court judge did not dispute the destruction caused by mountaintop removal and valleys fills or the science behind limiting the water pollution that results, but on Tuesday he did rule that the U.S. EPA overstepped its authority in acting to limit that pollution.

The Environmental Protection Agency should have used a formal rulemaking process rather than issuing “guidance” in trying to control the pollution, the U.S. District Court for the District of Columbia ruled.

The EPA guidance was issued in April 2010 and finalized in July 2011. It called for testing for potential toxic impacts of mining discharges, determining whether pollution could be reduced or avoided, and – what it is most known for – setting an in-stream conductivity standard.

“The federal court decision is a setback for the people of Appalachia,” said Floyd County KFTC member Rick Handshoe who regularly tests for conductivity in the mining-impacted creeks running through his property and finds they are usually many times the safe limit. “This conductivity guidance – based on scientific evidence – gives us the first sign that something may be wrong with our water.”

The National Mining Association challenged the EPA in court, and was joined by Gov. Steve Beshear and coal companies, in asking that the pollution standards be thrown out. In a statement issued by his office, Beshear called the court ruling a “victory” even though there is mounting evidence that the pollution the EPA guidance was trying to prevent is making individuals sick and an entire region of the state unhealthy.

Beshear urged the EPA to release 36 water pollution permits it is reviewing, even though those permits would violate the Clean Water Act.

EPA issued its guidance following two extensive peer-reviewed scientific reports (here and here), as well as multiple independent peer-reviewed scientific reports, that all found that mountaintop removal mines create lasting, irreparable harm to streams and water quality. This final guidance also came after the EPA’s consideration of 60,000 public comments.

But because it was guidance and not a formally adopted rule, the EPA cannot treat that rule as an absolute requirement, which the court judged it had been doing and expecting state regulators to do.

Judge Reggie B. Walton also limited the EPA’s involvement in coal mine permitting under the federal Surface Mine Control and Reclamation Act (SMCRA), ruling that “the EPA cannot justify its incursion into the SMCRA permitting scheme by relying on its authority under the CWA [Clean Water Act] — it has no such permitting authority.”

In this same case, last October the court vacated an agreement between the EPA, U.S. Army Corps of Engineers and the U.S. Office of Surface Mining for a collaborative review of mining permits.

Handshoe said he hoped state officials would pay attention to the science that led EPA to issue the guidance, and apply it in issuing coal mining pollution permits.

“We need to do something federally to protect Appalachians from mountaintop removal mining," said Handshoe. "We will continue to look to the governor to use this science to protect the water and health of people all over the commonwealth.”

KFTC as well as a number of other Appalachian and national organizations had intervened in the case in support of the EPA.

A copy of the U.S. District Court ruling is here.

Some media coverage:

• press release from Earthjustice and other allies
• Jeff Biggers in the Huffington Post
• The Courier-Journal: Judge rejects EPA water quality guidance for coal mining
• Associated Press: US judge strikes down EPA water rules for mines