The long-running appeal of EPA’s “Final Guidance” for Clean Water Act permitting for Appalachian coal mining operations was recently concluded when the U.S. Court of Appeals for the District of Columbia ruled that the guidance document was not a “final agency action” that could be reviewed in court. The D.C. Circuit’s opinion in the appeal, styled National Mining Association v. McCarthy, was issued on July 11, 2014, and the ruling became final on Sept. 3, 2014.
As reported previously in the Environmental Letter, EPA issued its Final Guidance in 2011. Among its provisions, the Guidance urged EPA Regions to object to NPDES permits for coal mining operations in Appalachian states if those permits did not contain limitations on the conductivity of discharges between 300-500 microSiemens per centimeter. The Final Guidance was widely criticized by industry and state permitting agencies, and while the Guidance was being implemented by EPA, the agency objected to essentially every individual KPDES permit that Kentucky proposed to issue to surface coal mining operations.
The Kentucky Coal Association, National Mining Association, and the states of Kentucky and West Virginia, among others, challenged the guidance in federal court, arguing that the Guidance exceeded EPA’s authority under the Clean Water Act and Surface Mining Control and Reclamation Act. A federal trial court in the District of Columbia agreed that EPA had exceeded its authority under these statutes, and overturned the Guidance. EPA appealed the decision to the D.C. Circuit.
On appeal, EPA argued that the Guidance was not enforceable, and was therefore not final agency action that could be reviewed in federal court. The court agreed with EPA that the Guidance “has no legal impact,” “does not tell regulated parties what they must do,” and that state permitting authorities are “free to ignore” the Guidance. On this basis, the court upheld the Guidance, but only as a non-binding guidance document that imposes no legal requirements.
Although the states and industry were ultimately unable to have the Final Guidance overturned by the D.C. Circuit, the EPA’s position before the appellate court can be viewed as a victory for industry and state permitting authorities because EPA has acknowledged that the Final Guidance, standing alone, has no legal effect. Additionally, in recent months, the state of Kentucky and EPA have been working cooperatively to resolve both individual KPDES permit objections and to work toward approval of the recently issued KPDES Coal General Permit. More information on the Coal General Permit is available in this issue of the Environmental Letter.