The Ohio Environmental Review Appeals Commission ruled that the Ohio Environmental Protection Agency (Ohio EPA) overstepped its authority on its ruling regarding streams and wetlands in the path of Oxford Resource Partnership’s planned Otsego-1 coal mine.
The review panel ruled that the Ohio EPA could not could not legally demand protections for small waterways that it classified as “primary headwater streams” — a class of streams that does not exist in state law or regulations.
“I think the decision kind of underscores the argument we’ve been making for many years, that the agency has been acting unlawfully,” Michael Gardner, an Oxford vice president and general counsel told the Columbus Dispatch.
Gardner said the agency’s restrictions would have rendered 1.3 million tons of coal off-limits, a loss of at least $20 million.
The matter goes back to the agency, which must agree on a new stream- and wetland-management plan with the company. In a statement, the agency said it will comply with the decision.
Rob Nichols, a spokesman for Gov. John Kasich, said the decision is an example of how the agency exceeds its authority with coal companies.
Coal companies are fighting a similar battle with the U.S. EPA over stricter water-pollution limits. Kasich’s office and the Ohio EPA are caught in the middle. Coal companies have complained to Kasich, while the U.S. EPA has told the Ohio EPA that the state must include the federal limits in its water-pollution limits.
The state appeals commission’s decision is the latest twist in a years-old fight between state agency officials and the coal industry over how far upstream federal Clean Water Act protections should extend.
Much of the fight involves thousands of small, unnamed tributaries that lead to larger streams, rivers and lakes. Conservationists consider these headwater streams most vulnerable to new construction projects, highways and strip mines.
The state agency has tried since 2006 to adopt a system that grades the ecological value of these streams. The result would keep coal companies from harming high-value headwaters and make them restore others once mining is complete.
Coal companies and developers have opposed the plans. In February 2012, state agency Director Scott Nally withdrew the proposed rules.
According to state records, the state agency sent Oxford its restrictions in January 2012, days before Nally pulled the proposed rules.
Although the standards were not part of state regulations, state agency officials argued to the commission that they had the authority to protect primary headwater streams.