Coal industry sues EPA over Obama administration’s crackdown on mountaintop removal

July 20, 2010 by Ken Ward Jr.

The coal industry lobby today filed suit against the U.S. Environmental Protection Agency to challenge the Obama administration’s stated plan to take “unprecedented steps” to limit the environmental impacts of mountaintop removal mining.

Lawyers for the National Mining Association, in a suit filed in U.S. District Court for the District of Columbia, are challenging EPA’s more detailed review of Clean Water Act permits for surface mines and the agency’s new guidance for controlling “conductivity” pollution from mountaintop removal operations.

A copy of the suit is available online here, and NMA also issued a news release that said in part:

“NMA members’ efforts to navigate this unlawful process and obtain reasonable and predictable permit terms have been unsuccessful, leaving us no choice but to challenge the EPA and Corps policy in court,” said NMA President and CEO Hal Quinn. “Detailed agency guidance is not a valid substitute for lawful rulemaking based on public notice and comment,” Quinn explained. “The agencies’ continued abuse of the law to impose arbitrary standards on mining operations, state agencies and other federal regulatory bodies threatens the entire region with further economic misery and stagnant employment.”

The suit itself alleges that EPA’s actions have:

… Substantially and illegally amend the statutory and regulatory permitting processes for coal mining that form the backbone of coal companies expectations in planning to extract coal for our nation’s power supply, particularly for those companies that require “valley fills” for their coal mining operations.

The suit also names as a defendant the U.S. Army Corps of Engineers, and alleges:

By dramatically altering timelines and imposing new requirements in complete disregard of existing federal law and procedure, EPA and the Corps have launched a moving target in coal mining permitting that is substantially and irreparably harming NMA‟s coal mining members.

26 Responses to “Coal industry sues EPA over Obama administration’s crackdown on mountaintop removal”

  1. Monty says:

    “Unlawful process”??? I guess by that the NMA means that its members can no longer do what they want when they want and however they want to do it? Gee, that’s too bad. They might actually start having to pay attention to a little phrase in the Clean Water Act, “cumulative impacts.”

  2. blue canary says:

    I guess the NMA isn’t used to government agencies not bending over backwards to do their bidding. I’m not a lawyer by any means, so could someone tell me what’s “unlawful” about creating and enforcing environmental standards? Isn’t that the EPA’s job? The part about uncertainty in the permitting makes sense – I’m sure it’s a problem – but is it really illegal?

  3. The truth says:

    EPA should have followed the proper procedures in attempting to establish environmental requirements, when the April 1st guidance attempted to establish a ‘benchmark’ that had not undergone (still hasn’t) the proper procedures for establishing such. There is a little thing called the Administrative Procedures Act that EPA completely ignored in their zeal to shut down the coal mining industry in Appalachia.

    EPA should not be allowed to function above the law no more than any other agency of government (or entity outside of government) that attempts to impose or do things without the legal backing to do so.

  4. Whose truth? says:

    If the standard we’re focusing on here is “the law,” and if the criteria for whether or not an entity’s right to “function” is it’s adherence to the law, then by that logic, not a single coal company in West Virginia should be able to operate. The reasoning being that every single coal company in this state has been found in violation of the law, whether for safety violations or environmental violations (Clean Water Act).

    However, if we were to take a different approach, say we apply West Virginia’s standards for violation of the law to the EPA for its supposed violation of the Administrative Procedures Act (APA). First, lets let the violation slide and issue a warning. Then, lets let the EPA appeal, and lets let that appeal hold up any decision making for a year or two. Then, lets allow the EPA three violations before we can cite them for a pattern of violations. Even then, lets only fine them $10,000–hardly enough to dissuade them from violating the APA again. Then lets let them appeal that fine, and we’ll all settle for $100 and a cheeseburger.

    So, if we were to hold every entity with a dog in this fight accountable to the same standards, which option would you choose?

  5. SGE says:

    You “Greens” would be upset if the EPA didn’t follow proper protocol and procedure in giving out permits by just handing them out to anyone who applied…So why aren’t you more upset when a government agency takes it upon itself to judge without any regard for what the law states and requires?

  6. Monty says:

    To the truth – I will grant you, the whole “conductivity rule” that the EPA has proposed is probably going to go down in flames, but …

    The FACT remains that EPA is well within its legal authority under Sections 403 and 404 of the Clean Water Act to do what it is doing. There is no “war on coal” as the industry so quaintly puts it. What there is, if you want to call it something, is a call to arms to “enforce existing regulations.” The FACT remains that Nationwide Permit 21was never intended to be used for the massive, industrial-scale earthmoving jobs that are part of mountaintop removal mining, which is perfectly clear if you bother to read the language of NWP 21. The Corps of Engineers’ Huntington office painted itself into a legal corner by insisting on characterizing MTR impacts as “minor.”

    Laws that have been on the books for decades that have been ignored by the WV Department of Environmental Permitting, I mean Protection, and the US EPA, to the almost exclusive benefit of the mining companies. This lawsuit by the NMA is going to go nowhere because it is, when you strip all the rhetoric away, nothing more than an industry crying foul now that the government is finally saying, “Hey, you gotta’ start playing by the rules.”

  7. Ken Ward Jr. says:

    Here’s a statement issued on EPA’s behalf by agency spokesman Brendan Gilfillan:

    EPA is reviewing the National Mining Association lawsuit filed today. EPA’s mining guidance is fully consistent with the law and the best available science and will help ensure that Americans living in coal country don’t have to choose between a healthy environment for their families and the jobs they need to support them.


  8. Thomas Rodd says:

    Great series of comments!

  9. rhmooney3 says:

    Keep in mind that having the authority and adhering to the procedure for using that authority are both required.

    Hal Quinn always well knows what he’s doing so this will be a real tussle.

    This has been coming for quite awhile so apparently Mr. Harold Quinn has been dealt the cards he feels is a winning hand.

    (If I had money to bet, it would be on Quinn.)

  10. Whose truth? says:

    “You “Greens” would be upset if the EPA didn’t follow proper protocol and procedure in giving out permits by just handing them out to anyone who applied…”

    Ummm, that’s exactly what the EPA was doing throughout the Bush Administration, and I’m pretty sure we were indeed upset, while the coal industry was having a field day. So while protocol is definitely important, you can’t cry foul on the EPA now if you were keeping quiet from 2001-2008.

  11. The truth says:

    Got no problem with “playing by the rules”. Just as long as EPA and any other federal agency does likewise. You can’t just look at the law and say I don’t like and change it without going through the process. That is what EPA did.

    Change the rules if they like, just follow the rule of law that we have in this great land in so doing. This isn’t an Obama dictatorship, it is a democracy of laws that must be followed. If in the end the new rules require coal mining operations to do things that they currently are not or cannot, then so be it. But you can’t ignore the proper protocols in the interim. EPA is not above the rule of law.

  12. rhmooney3 says:

    Whose rules is always a question, besides, there are always exceptions…for friends.

    September 25, 2002
    Official’s Lobbying Ties Decried
    The Washington Post
    (Excerpt) “I will do my utmost . . . to prevent the appearance of any improprieties or conflicts in terms of my prior associations,” Griles told the Senate Energy and Natural Resources Committee during his confirmation hearing. He signed two letters pledging to recuse himself for up to six years from matters that could affect his former lobbying firm or the array of utilities, mining companies and other energy producers he represented. Within weeks of taking office, Griles began a series of meetings with former clients and administration officials on regulatory matters important to several of his former clients. . . . A review of Griles’s activities shows that he has met frequently with some of the energy industry leaders he once represented. For example, he met at least three times with Harold P. Quinn Jr. and other senior officials of the National Mining Association between Aug. 16, 2001, and Jan. 8, while the industry group — a former client — was lobbying the administration to loosen standards for mountaintop mining operations and preserve a hardrock mining law highly favorable to the industry.

  13. Monty says:

    To The truth – changing the rules and following the rules are one thing King Coal seems to have no problem with, as long as it completely and totally and without question favors King Coal. I don’t think anyone with a lick of sense in West Virginia would argue that point.

    What is happening nows is that – finally, and for once, Federal environmental officials (I have long since given up on the state eneivironmental officials) are starting to do their jobs. For eight years under the previous administration the rules were changed willy nilly at King Coal’s whim, but I can’t seem to recall any industry folks saying, “Gee, this isn’t right, we should really be doing it the way the law was originally passed and the way the people intended it, for the good of future generations instead of our immediate quarterly earnings statement.” Maybe one of them did say that, and I missed it.

    EPA is following the rules. The thing is, now that they are actually trying to enforce some of the rules, King Coal doesn’t like it.

    So suddenly the EPA has “declared a war on coal” and is “trying to destroy our livelihood.” I’m sorry, but I can’t buy into that line of rehetoric. This lawsuit is going to be an interesting, long, drawn out version of he said-she said, that will still be going on long after the substantive issues are decided.

  14. Thomas Rodd says:

    The “CFR” or Code of Federal Regulations is one lengthy set of paperbacks, and most if not all of the rules in there have never had legislative approval. The U.S. Supreme Court has repeatedly said that agencies like the EPA are given a LOT of discretion and deference in applying the general law to different situations. EPA is allowed to “change its mind” and create and apply tougher standards, if they can demonstrate that older standards were not doing the job; and if they give opportunity for comments, etc. on proposed changes.

    My guess is that EPA has done a pretty good legal homework job on issuing new policies, etc. So, Monty seems to me to likely be right — the NMA has a seriously uphill legal battle.

    We’ll see.

    Monty, why do you point to the “conductivity rule” as being particularly vulnerable to legal challenge?

  15. Ken Ward Jr. says:


    Good discussion, but a couple of things I’m going to ask …

    — Please avoid using screen names like “the truth” … these just prompt others to call themselves things like “whose truth” and I don’t think this encourages a good DISCUSSION, which is what this is supposed to be. So please to “the truth” and “whose truth” … please choose difference screen names for future posts.

    — To “the truth” and everyone else … please do not put words in other folks’ mouths by writing that unnamed staffers from a government agency say certain things in private … If you want to use your REAL NAME as a screen name and cite the specific person who told you something and when they told you that, then I’ll allow those sorts of comments. But I’m not comfortable allowing anonymous readers to write that some other unnamed person told them something … that’s too many levels of unknowns and hearsay.

    Thanks, Ken.

  16. Ken Ward Jr. says:

    Also, here’s an interesting thought … the mining industry is not objecting in court that it didn’t get to comment on the EPA’s conductivity guidance before the absurdly named “final interim guidance” was used … this is the same mining industry that doesn’t believe the public should be able to comment on crucial details of a 404 permit, such as the mitigation plan, before said permit is issued … So often, issues about public involvement really amount to whose side you’re on … as others have mentioned, environmental groups are often quick to criticize the lack of public involvement in government actions that benefit industry, but they didn’t do so here. Ken.

  17. armored face conveyor says:

    One of the problems that I have with the conductivity rule is to the best of my knowledge it doesn’t apply to every one – only coal mining in the Appalachian states. If the EPA has strong scientific evidence that a conductivity of 500 negatively affects water quality then it should be applied to all discharges not just Appalachian coal mining. To the best of my knowledge there has never been a federal limit on total dissolved solids, though there has been a secondary (unenforceable) limit of 500 tds on drinking water. The 500 conductivity probably equates to a 250-300 tds in most cases which means this represents a major new rule making. Since there are any number of activities which can equate to 500 conductivities, will all of these be banned? As to some of the other statements, I am not aware of any significant changes in rules during the Bush administration on the federal level. What exactly are you referring to?

  18. rhmooney3 says:

    Conductivity (Dissolved Solids) is not a new concern to surface coal mining. It has been there since the very beginning.

    Many large areas have been surface coal mined since the 1950s and, even more so, since the passage of the Clean Water Act of 1972.

    There are many surface mined coal areas to study that have been mined decades ago to ascertain ongoing water quality impacts.

    I understand the basis for limiting conductivity — both decades ago and even now. If the EPA can now do what it didn’t do decades ago, why so? The EPA well knew the impacts back then but didn’t do anything.

  19. Thomas Rodd says:

    Good questions, “armored face conveyor.” (??) If this discussion hasn’t gotten too stale, you should get some informed responses.

    It sounds like you are basically questioning the application of a standard to some activities, but not all. It’s really quite a concession when one’s argument is not that an activity is doing no harm, but that others are doing harm, too.

    What about 35 MPH speed limits in town, and 65 on the highway? It’s just an analogy, but the point is that context and location are important.

    It seems logical that massive land disturbance and rubble creation like MTR can have much more significant watershed/biological effects when clustered in high geographic concentrations — as opposed to, say, when strung out over long distances, like interstate highways. I think this kind of difference is part of the EPA rationale; others would know better.

  20. Monty says:

    armored face conveyor – no significant changes in rules during the Bush administration? We could start with the tossing of the stream buffer limit and go from there (it’s all downhill) …

    Tom – I single out the stream conductivity rule for a simple reason: It’s new, and it’s the “low hanging fruit,” the easy legal target. Since it does give the appearance of being crafted to address a specific as opposed to a general situation, that makes it easier to attack it.

    Remember, the NMA’s goal in filing suit may not be to win, it may just be to delay for oh, say, about two more years until there is a more favorable regime in DC. Then they can roll everything back and it’ll be back to destruction as usual.

  21. armored face conveyor says:

    Thank you for the response. Of course I admit activities cause harm or at least change. Basically all human activity seems to cause some deviation from the natural state. I guess I would have to disagree with your analogies. A more fitting analogy in my opinion would be to say Chevy’s can go 65 but Ford’s can only go 45. (Of course now that the government has an interest in GM, that may happen.) I drive by a valleyfill at the Southridge mall that looks exactly like a surface mine fill. It seems ridiculous to me that there should be different standards for them. Are you saying that as long as a mine is isolated from other mines, different standards should apply? Why aren’t mining impacts outside the appalachian states treated in the same manner? I would venture to say there are more wastewater treatment plants than surface mines. Why don’t these rules apply to their discharges. Speaking of wastewater discharges I love this link.
    Where is the EPA on this one?


  22. armored face conveyor says:

    The stream buffer rule was changed after an extensive review process, didn’t become effective until the last year of the Bush presidency and never really changed anything, since there have only been a handful of permits granted after it went into effect. What else do you have?

  23. Randy says:

    Regarding why the EPA “benchmark” of 300 to 500 us/cm is not being extended to other potential point sources, this is a matter of much discussion.

    First, the “final interim guidance” does speak to this issue. The guidance suggests that permitting agencies should consider this benchmark (please note this is not a CWA 303(c) criteria) in establishing CWA 402 permit limits on sources other than coal mining operations in the event that a reasonable potential exists for that point source discharge to violate this suggested benchmark.

    There are several problems with this whole issue:

    (1) the benchmark is heavily qualified. EPA took a large dataset and narrowed it down to essentially target coal mining operations in upland watersheds. They threw out confounding factors such as low pH, high chloride concentrations, etc … and left with waters that are circum neutral pH and high sulfate dominated. In addition, EPA developed an alternative method of establishing an acceptable instream threshold using an extirpation analysis that for all intents and purposes can only apply in the situation of upland watershed discharges from coal mining operations. IMO, a blatant effort to target one specific industry with an instream benchmark to achieve … despite the bone that EPA threw in the final interim guidance about the potential applicability to other point sources.

    (2) It is widely accepted that you cannot have a one size fits all conductivity intream target. What is needed to protect a large riverine system as opposed to a 1st order upland stream are two very different things, regardless the fact that both streams may be located within the same ecoregion (ie., 68, 69, or 70 which are the three at discussion in this guidance). Thus, EPA has substantially complicated matters in the way they have approached this.

    (3) There is much debate as to what is meant by meeting stream use in this instance. A stream may well meet its intended uses, but with EPA’s use of the extirpation factor there could be an over estimation of the degree to which extirpation is acceptable. Mayflies, or ephemeropta, are important species for purposes of providing food source for downstream systems, but to what extent are they needed to be maintained while at the same time maintaining and protecting stream use.

    (4) If EPA were successful in their ill-advised approach to this and conclude that instream conductivity for all streams needed to be in the 300 to 500 us/cm range, then virtually any land disturbance practice would be stopped, sanitary wastewater discharges would be stopped on low flow streams, and the list goes on and on. The whole inequity issue of specifically targeting the coal mining industry in Appalachia is a legitimate argument, but the thought that this approach could be extended by EPA to other entities, in all states, in all waters, is insane. To that end, you should be advised that EPA directed the Science Advisory Board (SAB) which is meeting as we speak to take up this very question as a part of their review of the two technical documents that accompanied the April 1st final interim guidance.

    (5) EPA has a real challenge on their hand with respect to application of 40 CFR 122, the Technical Support Document on Water Quality Based Toxics Control, and various other guidance documents in EPA’s library. States have the authority and option to require monitoring to establish reasonable potential to implement a state narrative water quality standard. States can use whole effluent toxicity testing to implement a narrative much to EPA’s chagrin. EPA’s insistence to state’s that nothing less than adherence to the final interim guidance benchmark will invoke legal action by multiple parties. EPA is wrong on this point from a legal perspective.

    I could go on and on with this, but the point is, EPA has really stepped in it with this benchmark. Sure, there is a lot to be learned from the science in this case. Misapplication of that science however is extremely dangerous from an economic and quality of life perspective. EPA’s rush to judgment doesn’t serve anyone in that regard and a lot of people recognize this both inside and outside of the agency.

  24. Ken Ward Jr. says:

    Armored Face Conveyor:

    I’ve got a couple of things that are related …

    — The Bush administration (and other administrations from both parties) issued Corps 404 permits without allowing public comment on key parts of those permits — the mitigation plans … While this is not a change in rules without following the APA, it is indeed the same sort of issue. That is, not allowing public input on a major government decision. As you know, a federal judge recently threw out this practice … yet the coal industry continues to appeal the ruling to the 4th Circuit. If the coal industry believes public involvement in mining permitting matters is so important, it would drop its appeal and allow the public to comment on mitigation plans as part of the permit comment period.

    — Regarding the buffer zone rule — as you state, this rule change was in the works for some time, only to be finalized in the final weeks of the Bush administration. BUT, there were serious issues about whether proper procedures were followed here. Interestingly, they cut both ways … here’s how:

    It’s a matter of public record that the Bush administration sought to change the buffer zone rule without first following required procedures and seeking input on the changes from the U.S. Fish and Wildlife Service by consulting with the USFWS regarding impacts on endangered species. See this site for more,

    Now, the environmentalists essentially won that case, when the new administration took over and admitted proper procedures weren’t followed … BUT, Secretary Salazar when tried to circumvent proper procedures by nixing the rule without going through the required rulemaking process, as Coal Tattoo explained here,

    Interestingly, I didn’t hear the coal industry complaining about OSMRE’s failure to follow procedures and consult with the USFWS … just as I didn’t hear environmentalists complaining publicly about Obama’s efforts to circumvent procedures to throw out the Bush buffer zone rule.

    Not for nothing, but much of the litigation over mountaintop removal has focused on whether proper procedures were following in permitting these mines — part of the basic argument about NWP21 vs. IPs is that the nationwide permit process does not allow for nearly the same level of public involvement — yet the coal industry continues to cling to NWP21 as their choice way to process these mining proposals. If the industry were so concerned about public involvement, that might not be the position they should take.

    My point is this: these issues about proper procedure often cut both ways … and whether you think proper procedures were followed really depends on whether the ultimate decision was to your liking or not.


  25. Monty says:

    Still – I can’t help but feel that the REAL reason that the NMA is doing this is to buy time and delay things for the next two years or so until, probably, a Republican is in the White House and they can steer things back to the way things used to be under Bush.

    Many, many times lawsuits are filed with no expectation whatsoever of winning, but to gain some strategic advantage through the process or upon its completion. The NMA has deep, deep pockets to do exactly that, and if they can keep the EPA and the Corps tied up in knots over 403, 404 and NWP 21 for the next couple of years – their members won’t be mining any new coal, true, BUT, neither will they be subjected to any more than the minimal regulations they are now. So that, for them, is a win.

  26. armored face conveyor says:

    I hate to echo something Ken said, but you’ve pretty well summed up my opinion of OHVEC, CRMW, and ACEE’s lawsuits of the last 15 years.

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