EPA urges court not to block mining crackdown

Oct 23 - McClatchy-Tribune Regional News - Ken Ward Jr. The Charleston Gazette, W.Va.

The coal industry has so far shown an "utter lack" of harm to mine operators in its efforts to block the Obama administration's crackdown on mountaintop removal, lawyers for the U.S. Environmental Protection Agency said this week.

EPA lawyers urged U.S. District Judge Reggie B. Walton to turn down a request from the National Mining Association for a preliminary injunction.

The industry group is suing over EPA's more detailed review of Clean Water Act permits for surface coal mining and the agency's tougher new water quality guidance for the coal industry.

West Virginia Gov. Joe Manchin and the Kentucky Coal Association have filed similar lawsuits, as coalfield political leaders and the industry challenge the EPA's efforts to reduce the environmental impacts from mountaintop removal in Appalachia.

In its case, pending in federal court in Washington, the mining association asked Walton for a preliminary injunction, a court order that would require the industry to show irreparable harm if the injunction isn't issued.

EPA lawyers responded by pointing out that the mining association pointed only to two examples of companies whose situations the group says meet the legal standard necessary for an injunction.

One company is an Alabama mining firm that says delays caused by EPA may put it out of business in 18 months if new permits it seeks are not approved.

EPA responded by noting that its new permit guidance is not being applied to mining operations in Alabama, but only to those in West Virginia, Kentucky, Tennessee, Virginia, Ohio and Pennsylvania.

Also, EPA noted that other factors -- including the company rewriting its proposal -- led to at least a 15-month delay in the Alabama company's permit being considered, and that the delay occurred long before EPA issued its new guidance in April 2010.

"The possibility that one small company may be forced to go out of business by March 2010 is flatly insufficient to warrant an injunction against EPA's use of a guidance document in connection with a review of hundreds of draft permits and permit applications associated with surface coal mining across the Appalachian states," the EPA lawyers said.

The mining association also pointed to one company in Kentucky that the group said might abandon a project there because of EPA's new water quality guidance.

"Assuming everything NMA alleges is correct the possibility that one company may have a proposed project that becomes unprofitable due to the detailed guidance is manifestly insufficient to warrant an injunction against EPA's regulatory efforts with respect to hundreds of permits throughout the Appalachian region," EPA lawyers responded.

"In contrast to the utter lack of irreparable harm demonstrated by NMA, significant environmental interests are at stake here," the EPA said. "Consequently, the equities weigh in favor of allowing EPA and the Corps to review the permit applications in an orderly and coordinated framework."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.