State environmental chiefs protest EPA's use of 'guidance'

A coalition of state environmental secretaries has asked U.S. EPA not to set out any new requirements using "interim guidance," saying the practice can short-circuit the rulemaking process and make it impossible for states to follow the law.

Because states have their own laws and state officials have their own policy preferences, they need the certainty of final regulations rather than policy memos, says one of nine resolutions approved yesterday by the Environmental Council of the States (ECOS).

The resolution cites a recent report by Steven Brown, the group's executive director, that criticized the memos put out by EPA to explain how states should review permits for water pollution and mountaintop-removal coal mining to comply with the Clean Water Act.

The state of West Virginia and trade groups such as the National Mining Association have sued the agency over its April 2010 guidance on coal-mining permits, which took effect immediately. They say economic growth is being stifled by the memo, which told states to start estimating the conductivity of nearby streams to figure out whether a coal mining project would do unacceptable harm to water quality.

"Interim guidance, interim rules, draft policy or reinterpretation policy may not be legally binding and states using these as the basis for issuing permits or other actions may result in delays and potential job losses," the resolution says.


During a recent interview, Brown said the agency appears to be trying to speed along the rulemaking process. EPA has sometimes directed its regional offices to reject permits that don't follow the guidance, which creates a problem in states where officials are not allowed to be any stricter than federal rules require, he said.

"There's a desire among some people to right what they believe is an environmental wrong," Brown said. "That's fine. They should do that. But they should use the laws and procedures that are in place, and the court decisions over the years, to do it -- not come up with some cheap shortcut that is impossible for states to implement (Greenwire, March 23).

Speaking at the ECOS conference, EPA Administrator Lisa Jackson defended the agency's use of guidance, saying it has not been used differently under her watch. Jackson, who was New Jersey's environmental secretary before she was chosen to lead EPA, said she understands the importance of the issue and will work closely with states to reach an agreement on the use of policy memos.

"They're valid concerns, but I'd ask you to look at both sides of that picture," Jackson said. "EPA has requirements under the Clean Water Act, the Clean Air Act and other statutes to run a national program -- to address issues as they arise."

Eight other resolutions were passed or updated by ECOS members during their annual spring meeting, which ran from Monday until yesterday.

Two resolutions urged Congress to invest in "clean coal" technology and to preserve funding for the Clean Water State Revolving Fund, which provides money for local infrastructure projects.

And while the state officials were critical of the way EPA has recently used guidance, another resolution said the agency should proceed with new limits on mercury and if necessary, other toxic chemicals, that are released by coal-fired power plants. Earlier this month, EPA released a proposal that would require all coal plants to control their emissions of mercury, acid gases and toxic metals.

Click here to read the nine resolutions.

Reporter John McArdle contributed.

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