Coal Age

OCT 2015

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D uring early October, the Sixth Circuit Court of Appeals granted a nationwide stay on the Waters of the United States (WOTUS) rule recently proposed by the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps). The proposed rule was an effort to clarify the scope of federal regulatory jurisdiction to satisfy U.S. Supreme Court decisions in 2001 and 2006, which concluded that the agencies adopted an interpretation that unduly widened the scope of their authority. Many cases against the WOTUS rule are pend- ing in courts around the country. The proposed rule changes were mostly an effort to more clearly define the WOTUS for all Clean Water Act (CWA) programs. Most of the changes were related to tributaries, adjacent wetlands and "other waters." As pro- posed, it would have expanded federal jurisdiction considerably over waters that have little or no connection to flowing streams and rivers, exposing new mines or mine expansions to additional permitting delays, which would further threaten the economy in the coalfields by putting more jobs at risk. Despite the fact that the EPA said the rule would more clearly define tributaries, it was the definitions that worried the court the most. In its ruling, the court said, "In one sense, the clarification that the new rule strives to achieve is long overdue. We also accept that respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court's guidance. Yet, the sheer breadth of the ripple effects caused by the rule's def- initional changes counsels strongly in favor of maintaining the status quo for the time being." A nationwide stay was granted by a 2:1 vote, with the majority believing that opponents currently challenging the rule would likely prevail. The court also took issue with the content of the rule, and the lack of notice and comment for significant changes that were added in the final version. The court also noted that the rule had already been stayed in 13 states. "Recognizing the legal infirmities that could ultimately topple the rule, the court wisely decided to suspend the nationwide implementation of the waters of the U.S. rule," said Hal Quinn, CEO, National Mining Association. "As it stands, the federal overreach embodied in the WOTUS rule will only add more uncertainty and delays to state, local and private land use decisions." Many in the mining business believe the rule does not comply with Supreme Court decisions and that they were not given significant notice to review and com- ment as required by law. The dissenting judge said the court should not issue a stay against the rule until it determines that it has jurisdiction under the CWA to review the rule. The majority believed they had the discretionary power to issue a stay until the questions related to jurisdiction are answered, and that briefing is under way. The court's nationwide stay was the right decision as they consider the merits of a regula- tion that will surely impact the coal mining business and many other industries. Coal Age, Volume 120, Issue 10, (ISSN 1040-7820) is published monthly by Mining Media Inc., 10 Sedgwick Drive, Englewood, Colorado 80113 ( Periodicals postage paid at Englewood, CO, and additional mailing offices. Canada Post Publications Mail Agreement No. 40845540. Canada return address: Station A, PO Box 54, Windsor ON N9A 6J5, Email: Current and back issues and additional resources, including subscription request forms and an editorial calendar, are available online at SUBSCRIPTION RATES: Free and controlled circulation to qualified subscribers. Non-qualified persons may subscribe at the following rates: USA and Canada, 1 year, $56.00, 2 year, $96.00, 3 year, $162.00, Student, $16.00, Outside the USA and Canada, 1 year, $77.00, 2 year, $137.00, 3 year, $225.00 surface mail (1 year, $145.00, 2 year, $257.00 airmail delivery). For subscriber services or to order single copies, write to Coal Age, 8751 East Hampden, Suite B1, Denver, CO 80231 USA; call +1.303.283.0640 (USA) or visit ARCHIVES AND MICROFORM: This magazine is available for research and retrieval of select- ed archived articles from leading electronic databases and online search services, including Factiva, LexisNexis, and Proquest. For microform availability, contact ProQuest at 800-521- 0600 or +1.734.761.4700, or search the Serials in Microform listings at POSTMASTER: Send address changes to Coal Age, P.O. Box 1337, Skokie, IL 60076 USA. REPRINTS: Mining Media Inc, 8751 East Hampden, Suite B1, Denver, CO 80231 USA phone: +1.303.283.0640, fax: +1.303.283.0641, PHOTOCOPIES: Authorization to photocopy articles for internal corporate, personal, or instructional use may be obtained from the Copyright Clearance Center (CCC) at +1.978.750.8400. Obtain further information at COPYRIGHT 2015: Coal Age, incorporating Coal and Coal Mining & Processing. ALL RIGHTS RESERVED. Mining Media International Editorial Office 1 1655 Central Parkway, Suite 306 J acksonville, Florida 32224 U.S.A. P hone: +1.904.721.2925 F ax: +1.904.721.2930 Mining Media International Corporate Office 8 751 East Hampden, Suite B1 D enver, Colorado 80231 U.S.A. P hone: +1.303.283.0640 F ax: +1.303.283.0641 P resident/Publisher—Peter Johnson, Vice President of Sales & Marketing—John Bold, Midwest/Eastern U.S. & Canada, Sales—Victor Matteucci, Western U.S. & Canada, Sales—Mary Lu Buse, Scandinavia, UK and European Sales—Colm Barry, G ermany, Austria & Switzerland Sales—Gerd Strasmann, Australia/Asia Sales—Lanita Idrus, Japan Sales—Masao Ishiguro, Indonesia Sales—Dimas Abdillah, Latin America Sales—Paulina Downey, / Sylvia Palma, Classified Advertising—Kirk Carbo, Show Manager—Tim Fearney, Production Manager—Dan Fitts, BY STEVE FISCOR / EDITOR-IN-CHIEF Court Wisely Grants a Stay on WOTUS e d i t o r ' s n o t e 2 Steve Fiscor, Coal Age Editor-in-Chief E d i t o r - i n - C h i e f — S t e v e F i s c o r , s f i s c o r @ m i n i n g - m e d i a . c o m W e s t e r n F i e l d E d i t o r — R u s s C a r t e r , r c a r t e r @ m i n i n g - m e d i a . c o m F i e l d E d i t o r — D o n n a S c h m i d t , d s c h m i d t @ m i n i n g - m e d i a . c o m E u r o p e a n E d i t o r — S i m o n W a l k e r , s i m o n . i e t s @ b t i n t e r n e t . c o m L a t i n A m e r i c a n E d i t o r — O s c a r M a r t i n e z , o m a r t i n e z @ m i n i n g - m e d i a . c o m A s s i s t a n t E d i t o r — J e n n i f e r J e n s e n , j j e n s e n @ m i n i n g - m e d i a . c o m G r a p h i c D e s i g n e r — A u s t i n S t . C l a i r , a s t c l a i r @ m i n i n g - m e d i a . c o m

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