At issue are two sets of regulatory guidance, which EPA is enforcing without going through the proper rulemaking process, in violation of the Administrative Procedures Act, Randy Huffman, the director of the state's Department of Environmental Protection, said in an interview Wednesday.
Both sets of guidance outline how EPA plans to enforce and review Clean Water Act permits for Appalachian coal mining operations to guard against degradation of water quality in headwater streams.
"EPA is using those tools as though they are the law, the rules, when neither of those tools has been through the rulemaking processes," Huffman said, adding: "We are challenging the illegal rulemaking."
The state Department of Environmental Protection filed the lawsuit on behalf of the state in the US District Court for the Southern District of West Virginia.
The National Mining Association filed a similar lawsuit September 19 in the US District Court for the District of Columbia.
Huffman said the state's suit was specific to West Virginia although he said there may be an overlap.
At a Wednesday briefing, Manchin, who is vying for a US Senate seat that is vacant following the death of Senator Robert Byrd, declared that the state was forced to resort to litigation after efforts to find middle ground with EPA failed.
Manchin accused the Obama administration of attempting to destroy the state's coal industry by engaging in "a series of questionable and unlawful actions" that have caused delays in the permitting process and prevented new permits from being issued.
He said EPA has "usurped" the state's authority to regulate its own waters. EPA has taken these actions without any legal authority, relying on what Manchin said were "questionable scientific studies that have not been adequately peer reviewed or presented to the state and coal mining community for comment."
Manchin and Huffman were referring to EPA April draft regulatory guidance. The guidance seeks to improve EPA's review of Appalachian surface mining operations under the Clean Water Act, National Environmental Policy Act and the Environmental Justice Executive Order.
The guidance targets the practice of mountaintop mining operations in Appalachia. It requires staff in the agency's regional offices to reject an application for a pollutant discharge permit under Section 402 of the Clean Water Act if they find that mining activity will cause conductivity levels, or the concentration of salts in water, in headwater streams to exceed 500 microSiemens/centimeter.
EPA is looking at conductivity as a measure of water quality. Using that same reasoning, EPA directed its regional offices to also recommend denial of Section 404 dredge and fill permits, which are typically issued for discharge of mining burden into water, if they are seen to violate water quality
standards, such as the conductivity levels.
The April guidance followed a June 2009 memo in which the agency first indicated its plans to conduct enhanced reviews of Section 404 permits already issued by the US Army Corps of Engineers.
EPA was not immediately available for comment.
Margaret Janes, of the Appalachian Center for the Economy and the Environment, declined to comment, referring the call to environmental group's Joe Lovett, who could not be reached for comment.
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