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Appalachian Communities Win Case Against Unlawful Mountaintop Removal Mining Permit While Federal District Court Issues Decision Finding EPA Must Act Through Regulation, not Guidance

Appalachian communities win challenge to state permit, but still seeking federal protection from devastating mines and pollution

WASHINGTON - Today rulings were issued in both West Virginia and the U.S. District Court demonstrating the need for Environmental Protection Agency standards that are based on the overwhelming scientific consensus that pollution from surface coal mining and coal waste disposal threatens Appalachian streams.

Today the West Virginia Environmental Quality Board (WV EQB) ruled that the state’s Clean Water Act permit for a mountaintop removal mine, Patriot Mining Company’s New Hill West mine, is unlawful because it does not limit harmful pollution that degrades water quality. Also today the U.S. District Court for the District of Columbia ruled in the coal industry case challenging a U.S. Environmental Protection Agency (EPA) guidance document meant to ensure compliance with the Clean Water Act and protect Appalachian communities from extreme mountaintop removal mining pollution. This court found that, to protect Appalachian streams from the harm caused by mining pollution, EPA should have issued a formal regulation instead of a guidance document. On these grounds, the court vacated the EPA’s conductivity guidance.

The West Virginia Environmental Quality Board decision demonstrates that the science is clear and stricter permits are necessary for protecting Appalachian waterways from coal mining pollution, including very high levels of conductivity and total dissolved solids that harm aquatic life. The EPA relied on these same studies to support its final guidance, and although the federal court ruled against the guidance, nothing in its decision questioned the scientific consensus behind the guidance. The federal court ruling also does not affect the West Virginia Environmental Quality Board decision.

In July 2011, the EPA issued this final guidance following its own two extensive peer-reviewed scientific reports, as well as multiple independent peer-reviewed scientific reports, that all found that mountaintop removal mines create lasting, irreparable harm to streams and water quality. In light of these scientific reports, EPA issued the guidance to assist its staff in meeting longstanding and well established requirements of the Clean Water Act. This final guidance also came after the EPA’s consideration of 60,000 public comments.

Sierra Club and Appalachian Mountain Advocates won the case in front of the West Virginia Environmental Quality Board.

In the federal case, the Sierra Club, Coal River Mountain Watch (WV), Ohio Valley Environmental Coalition (WV), West Virginia Highlands Conservancy, Kentuckians For The Commonwealth, Southern Appalachian Mountain Stewards (VA), and Statewide Organizing for Community eMpowerment (TN) — represented by Earthjustice and the Appalachian Mountain Advocates — opposed this coal mining industry lawsuit as intervenors in support of EPA’s effort to follow the Clean Water Act, consider the latest science, and protect America’s waters from destruction.

The following are their statements:

Said Ed Hopkins, Sierra Club's Environmental Quality Program Director:
"We are heartened to see the West Virginia Environmental Quality Board affirm basic protections of the Clean Water Act, and overturn the unlawful mountaintop removal mining permit today. In addition to continuing to follow the Clean Water Act consistent with federal court rulings, we urge the EPA to adopt the water quality benchmarks in the guidance addressed by today’s court decision as federal rules to ensure full protection for all local communities from the dangerous industry of mountaintop removal coal mining," “Together, the state environmental quality board and EPA must ensure that all Appalachian communities finally receive the protection from mountaintop removal mining that we deserve.”

Said Dianne Bady, co-director of the Ohio Valley Environmental Coalition, based in West Virginia:
“We're saddened that this federal court ruling will prevent the EPA from using  this scientific guidance to protect Appalachia's waters from  mountaintop removal mining operations that have been linked to increased harm to human health. But with or without this one particular guidance document, the EPA still has a duty to protect our waters and our people directly under the Clean Water Act, and it is a relief to see our state environmental quality board affirm the science and follow the Clean Water Act.  In keeping with today’s decisions, we urge the EPA to continue advancing strong, science-based policies to safeguard our lives.”

Said Vernon Haltom, executive director of Coal River Mountain Watch in West Virginia:
"Our people's health and the survival of our communities depend on strong enforcement of the laws and regulations intended to protect us from pollution. Since the West Virginia Department of Environmental Protection chooses instead to enable unfettered pollution from mountaintop removal, we must rely on the U.S. EPA. It is a victory to see the state environmental quality board affirm fundamental requirements of the Clean Water Act.  Because the science is clear on what we need to do to protect our waters, we hope that today’s court decision does not weaken EPA's resolve to protect us from mountaintop removal, which is increasingly linked to deadly human health problems."

Said Emma Cheuse, Earthjustice attorney:
“EPA and state regulators still have a legal duty to uphold the Clean Water Act, and today’s court decision recognizes EPA’s authority to set rules to protect our waterways. It is essential for both EPA and state agencies charged with protecting communities to follow the science, and they must doing everything possible under the law to prevent the irreversible destruction of mountaintop removal mining, before more mountains and streams are destroyed forever.”

Said Rick Handshoe of the Kentuckians For The Commonwealth:
“The federal court decision is a setback for the people of Appalachia. This conductivity guidance – based on scientific evidence – gives us the first sign that something may be wrong with our water. Whatever may happen in the courts, assuming today’s decision is appealed, the science EPA has highlighted will continue to be a great tool for people in Appalachia. It’s been a great tool for me. I’ve tested a creek where the water was crystal clear but the conductivity meter ran over 4000 micro Siemens. That told me something was wrong, and after further testing was done we saw how bad it was – some of the pollutant levels were 100 times the water standard. We need to do something federally to protect Appalachians from mountaintop removal mining.  And we will continue to look to the Kentucky governor to use this science to protect the water and health of people all over the Commonwealth.”

Said Cindy Rank, mining board chair of the West Virginia Highlands Conservancy:
“For years mining companies have fought science and even minimal clean water protections under the 40-year-old Clean Water Act using every legal trick in the book. In some cases, such as today’s federal court decision, they have won. This continues to put us living in Appalachia in the unconscionable position of having to document our own communities’ sickness, disease and other unexplained health impacts as reasons to finally stop the devastating practice of mountaintop removal coal mining. As we do this, it’s critical that West Virginia keep doing as it did today and use strong science to deny permits.”

Said Cathie Bird, chair of the E3 Committee of Statewide Organizing for Community eMpowerment:
“EPA’s conductivity guidance supports a broader science-based strategy to keep mountain ecosystems resilient and healthy. While the court’s decision is disappointing, we hope the EPA and the states will continue to use the full force of their authority under the Clean Water Act to strengthen the protection of water, upon which human communities and other species depend.”


Final Guidance: Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order:

Information on the EPA’s Clean Water Act oversight of Appalachian surface mining activities:

Information on Appalachian groups’ intervention to support EPA in lawsuit filed by the coal mining industry:

Final EPA Scientific Reports on Water Quality and Mountaintop Removal Mining Pollution Impacts:
•    Field-based Aquatic Life Benchmark (2011):
•    Effects of Mountaintop Mines/Valley Fills (2011):

Final EPA Report: Review of Clean Water Act § 402 Permitting for Surface Coal Mines by Appalachian States (2010):

Liz Judge, Earthjustice, (202) 797-5237 or (970) 710-9002 (cell)
Oliver Bernstein, Sierra Club, (512) 289-8618
Dan Radmacher, Appalachian Mountain Advocates, (540) 798-6683
Cindy Rank, West Virginia Highlands Conservancy, (304) 924-5802
Vernon Haltom, Coal River Mountain Watch, (304) 854-2182
Vivian Stockman, Ohio Valley Environmental Coalition, (304) 360-1979
Rick Handshoe, Kentuckians For The Commonwealth, (606) 358-4912
Jane Branham, Southern Appalachian Mountain Stewards, (276) 679-7505
Casey Self, Statewide Organizing for Community eMpowerment, (865) 249-7488


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