For the third time in the past 10 months, a federal court has declared that the Environmental Protection Agency (EPA) has violated the law through its efforts to impose additional restrictions on coal operations in the Appalachian States. On July 31, 2012, the federal District Court for the District of Columbia struck down EPA's "guidance memorandum" for coal-related water permitting actions. The guidance purports to establish a number of "recommendations" and "suggestions" for the Corps of Engineers, and state agencies like the West Virginia Department of Environmental Protection (WVDEP) to "consider" when processing applications for mining related permits. One of the recommendations is that permits should place limitations on conductivity levels in discharges from mining operations to ensure compliance with "narrative water quality standards," such as the requirement that discharges into state waters do not cause a "significant adverse impact" to aquatic ecosystems. Conductivity is a measurement of how well water conducts electricity and is considered to be a rough surrogate for the concentration of total dissolved solids (TDS) present in water. Neither EPA nor the Appalachian States have adopted a water quality standard for conductivity. Nonetheless, for more than two years the state agencies have been effectively prevented from issuing new water discharge permits for mining-related projects unless they included conditions that implemented the views expressed in EPA's "guidance."
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