The National Mining Association (NMA) filed a lawsuit on July 20 against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) claiming that new enforcement guidelines issued by EPA in April unlawfully obstruct permitting of coal mining operations. NMA claims the new guidelines effectively prohibit certain types of surface mining and that EPA denied NMA the opportunity to review and comment on the guidelines before they became final.

The lawsuit arises out of the controversial practice of mountaintop removal mining, which involves blasting off the tops of mountains to access coal seams hidden below. After the coal has been mined, the leftover waste is discarded in the surrounding valleys. EPA issued the new guidance after extensive scientific research showed that this "valley fill" method causes pollution in downstream drinking water sources and endangers the health and safety of surrounding communities.

The guidelines are part of an effort to undo a Bush administration "midnight regulation" that allowed mining companies to dump waste from mountaintop mining into rivers and streams. EPA Administrator Lisa Jackson made reducing the harm caused by this rule a top priority, especially after the late Sen. Robert Byrd (D-WV) urged EPA to crack down on unsafe mining practices. Byrd, an unlikely critic of mountaintop mining due to his coal country constituency, explained in a Dec. 3, 2009, commentary that mountaintop mining led to job loss and unknown effects on the health of surrounding communities. Byrd also defended EPA's regulatory actions and called for a safer alternative to mountaintop mining, stating that "the greatest threats to the future of coal do not come from possible constraints on mountaintop removal mining or other environmental regulations, but rather from rigid mindsets, depleting coal reserves, and the declining demand for coal as more power plants begin shifting to biomass and natural gas as a way to reduce emissions."

The new guidance requires greater scrutiny in evaluating Clean Water Act (CWA) permits for valley fill operations, which has led to many of the permits being denied or held up for review. Although EPA does not claim to be issuing a ban on all valley fills, the guidance states that "generally, it will be easier for projects with no or few valley fills to demonstrate that they comply with the requirements of the CWA and the 404(b)(1) Guidelines. Conversely, projects with multiple valley fills will generally raise serious questions about their compliance with CWA requirements and may require permit objection under 402 or elevation and possible veto under 404." Although EPA describes the guidelines as clarifying how CWA requirements apply to valley fills, and not as creating any new policy or rule, Jackson explained in the April 1 press conference announcing the guidelines that the standard was so strict that few, if any, valley fill permits would be issued.

NMA's lawsuit calls this heightened scrutiny a "de facto moratorium" on permitting for valley fill coal mining. NMA claims EPA and the Corps purposefully circumvented standard rulemaking procedures by issuing the new policy as a "guideline," thus avoiding the long notice and comment period required by federal law whenever an agency creates a rule. NMA also argues that the guidelines violate the CWA by allowing EPA to control the permit review process for valley fills. The authority to issue permits for the discharge of dredged and fill material under the CWA is traditionally delegated to the Corps.

However, EPA's guidance summary states that the CWA gives EPA authority to deny a permit for discharge of dredged or fill material if it would cause or contribute to significant degradation of state or federal water quality. EPA's scientific findings show that valley fills have a substantial impact on both aquatic life and surface waters that feed into public drinking water. The summary cites two federal studies that found that waters downstream of valley fills show elevated levels of highly toxic and bioaccumulative selenium, and that nine out of ten streams downstream of valley fills show significant impacts to aquatic life. Such degradation to water quality could lead to significant impacts on the health of surrounding communities, warranting EPA review under the CWA.

In June 2009, EPA and the Corps entered into a Memorandum of Understanding (MOU), which established enhanced coordination procedures between the two agencies. The MOU allows EPA to conduct additional review with veto power over all permitting actions made by the Corps in regard to valley fills. EPA has stated that it properly entered into the MOU under its authority to issue guidelines to ensure that permitting decisions made by the Corps are in compliance with CWA.

Jackson has repeatedly stated that the guidelines are one step in a long process toward reducing coal mining pollution. EPA's main goal in issuing the guidance is to make an immediate impact in the quality of streams used for drinking water, fishing, and swimming. "Coal communities should not have to sacrifice their environment, or their health, or their economic future to mountaintop mining," Jackson said in the April 1 press conference. "They deserve the full protection of our Clean Water laws."

The National Mining Association filed its lawsuit in the U.S. District Court for the District of Columbia. Neither EPA nor the Corps has issued comments or a response to the lawsuit at this time.

Photo in teaser by flickr user NRDC media, used under a Creative Commons license.