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Justice Department Appeals Ruling On EPA’s Final Mine Waste Guidance

The EPA has been dealt yet another blow to its process of handling surface mining permits.  In National Mining Association v. Jackson, the U.S. District Court for the District of Columbia found that the EPA exceeded its statutory authority under the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA) by promulgating de-facto rules outside of the formal rulemaking process.

The SMCRA, which was enacted in response to concerns with strip mining, sets minimum federal standards for regulating coal mining, and was enacted to ensure that land could be reclaimed after surface mining. Coal mine operators are required to comply with strict performance standards, permitting conditions, inspection requirements, and enforcement actions. The Department of the Interior administers the SMCRA through the Office of Surface Mining Reclamation and Enforcement, and may delegate permitting authority under the program to states with approval of the Secretary of the Interior.

In addition to SMCRA permits, mining operators also must obtain CWA permits to begin coal mining projects. The U.S. Army Corps of Engineers issues permits under §404 of the CWA for discharge of dredged and fill material into navigable waters of the U.S. at disposal sites. Once the EPA approves a State permitting program, the State may issue §402 permits, which cover discharge of pollutants that do not fall under §404. Section §404 permits contain effluent limitations restricting the amounts of specified pollutants that may be discharged. States must also adopt water quality standards under §303 that the EPA reviews for approval.

The controversy began in 2009 when the EPA issued guidance on the use of conductivity testing to determine the levels of dissolved solids in stream water. The guidance was to be used by regional offices for issuing surface mining permits.

The District Court found that the guidance was being employed in the field more like a rule than a recommendation, and held that EPA failed to follow the formal notice and comment procedures for promulgating a new rule.  Although this holding was a win for the National Mining Association, it will remain to be seen whether this ruling will stand as the Justice Department recently filed a notice of appeal.  Several environmental groups also filed a notice of appeal in the same matter.

(Thank you to DMMS law clerk, Kylie Angileri, who assisted with the preparation of this post.)

About Brian J. Considine

Brian J. Considine is a Senior Attorney with Dawda, Mann, Mulcahy & Sadler, PLC. He concentrates his practice in the areas of corporate environmental counseling, commercial real estate due diligence and environmental/toxics litigation. His practice also includes counseling clients on Federal Motor Vehicle Safety Standards.

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