August 01, 2012

Coal scores legal victory | Bluefield Daily Telegraph

CHARLESTON — West Virginia scored no small victory Tuesday in the “war against coal” with the Environmental Protection Agency, but industry leaders were cautious that a ruling that the Obama administration exceeded its powers in water quality criteria might be ignored.

In his decision, U.S. District Judge Reggie Walton in the nation’s capital ruled in favor of a lawsuit filed by Sen. Joe Manchin when he was governor of West Virginia.

In essence, the judge ruled that the EPA exceeded its authority in attempting to force the state and industry to come up to standards not provided for in its rules, and that its rules weren’t properly promulgated.

“What a great day for West Virginia,” Manchin, D-W.Va., said in a statement from his office.

“I’m pleased and gratified to hear that the federal court has ruled in favor of our state, the miners who work here, and the people who depend on coal for their livelihoods — and against the EPA for overstepping its boundaries.”

Manchin’s suit specifically targeted the EPA and its administrator, Lisa Jackson, who has been at loggerheads with the state over coal mining permits since President Obama appointed her.

Whether the decision will open the gates for stalled permits was in doubt.

“We would like to think so,” Bill Raney, president of the West Virginia Coal Association, based in Charleston, said in response to the court edict.

“But if experience is any measure, the EPA doesn’t pay any attention to court cases. They just adjust their behavior to do what they want to do instead of what the courts suggest they do.”

Even with this uncertainty, the court’s ruling certainly was hailed as positive by Raney and his vice president, Jason Bostic.

“Absolutely, we’re happy,” Raney said.

“What it does is validate the fact that what we have been saying about the EPA for three and one-half years is absolutely true. I mean, the courts are saying it.”

Raney said he would surprised if the EPA doesn’t file an appeal but hopes the bureaucracy won’t take that step, with permits still in limbo, and hundreds of jobs still in the chute.

“I wish they would take a hint that it’s time to let the state get back to the business of regulating its industry, because it knows how to do it better than anyone in Washington or Philadelphia does,” the coal leader said.

Bostic interpreted the ruling to mean that federal legislation is needed to “the control the behavior of this agency,” and specifically that the Senate needs to approve HR2018 by Rep. Nick Rahall, D-W.Va.

Permits for mining operations actually fall into two separate categories, Bostic explained.

One is known as Section 402, water discharge permits, which are dealt with primarily by the state. Others are categorized in Section 404, in the sole purview of the Army Corps of Engineers.

At last count, Bostic pointed out, there were 938 permits hung up in Section 402 between the state and the EPA. Those involving Army Engineers number around 30, he said.

“The other thing that people lose sight of is that those National Pollutant Discharge Elimination System (NPDES) permits are for everything, including on-going operations that have been in place for decades,” Bostic said.

“We have to renew those permits every five years.”

In the renewal process, Raney said, the EPA is stretching out the process and this delays approval.

“Hundreds of jobs are in abeyance because permits are being scrutinized unfairly by the EPA that are pending approval at the Corps or EPA level, one or the other,” Raney said.

“You do have jobs absolutely in jeopardy.”

Raney and a number of political leaders have picked up on the “war on  coal” mantra they feel finds the EPA unjustly hindering coal production  in this state and other parts of Appalachia.

“As governor, I sued the EPA because this bureaucratic agency was taking the wrong course.”

Manchin said he is “hopeful” the permits in limbo can be approved and that planned installations can get untracked to provide both energy and jobs.

“Looking ahead, I will work to make sure the EPA understands that it needs to work as an ally, not an adversary,” the freshman Democrat added.

By:  Mannix Porterfield