Gov. Manchin Announces State Will Sue EPA


Governor Joe Manchin announced today that the West Virginia Department of Environmental Protection is filing a lawsuit against the United States Environmental Protection Agency over the process the federal agency has used to block mining permits in West Virginia and the Appalachian region.


In this morning’s announcement, the Governor said, “Through a series of questionable and unlawful actions, the U.S. EPA has implemented policies and procedures that have delayed the permitting process and halted the issuance of new mine permits."


He said the federal agency has usurped the authority of the State and the West Virginia Department of Environmental Protection to oversee and regulate important aspects of the state’s environment.


“Despite our efforts, the EPA has continued to overreach.  They have proven that they are trying to regulate what they can’t legislate,” Manchin said.


The lawsuit states that the U.S. EPA has violated regulations of the Administrative Procedures Act, the Clean Water Act and the Surface Mine Control and Reclamation Act regarding the creation of policy by making decisions based on its Enhanced Coordination Process instituted in June 2009, and its April 1, 2010 guidance on mining activity in the Appalachian region. The suit contends that using these documents to regulate coal mining is outside of the law because these documents were developed without the procedural safeguards that are required for rulemaking in accordance with federal law.


The actions by EPA have directly affected two types of mining permits. Permits under section 404 of the Clean Water Act that address valley fills and those under section 402, which address water quality standards for all mining.


Under the Enhanced Coordination Process, 23 West Virginia Section 404 permits with valley fills were subject to review. Two have been issued, six were withdrawn by the companies and 15 are still pending with the U.S. Army Corps of Engineers, subject to EPA’s request for more information. Approximately 20 additional Section 404 permits have undergone a similar review by EPA, but none have been issued.


Lastly, 287 Section 402 water quality permits have been submitted to EPA by West Virginia for review and approval, and only 113 have been issued. These permits are not only mountaintop and surface mining permits, but affect all types of mining activity.


“It’s unfortunate the state had to go this route, but EPA should follow the rules before changing the law,” said Randy Huffman, Cabinet Secretary for the WVDEP.


The state hired the law firm, Bailey and Glasser, of Charleston, to represent the state on this issue. The suit is being filed in U.S. Federal Court in Charleston.  


Kathy Cosco
304-926-0499, ext. 1331