Phew. After a big flurry of activity yesterday on mountaintop removal, where do we really stand? What exactly has EPA done and what does it mean?
In my initial story, I described EPA’s action as the start of a “crackdown” on mountaintop removal. I still think that’s correct. But the emphasis probably should be on the word “start” — because judging from some pretty big differences in the two permit comment letters EPA issued Monday, we don’t know how much of a crackdown it’s eventually going to turn out to be.
In one instance, EPA says the federal Army Corps of Engineers can’t issue a valley fill permit without first conducting a detailed Environmental Impact Statement — a position environmentalists have been advocating for years, but which U.S. District Judge Robert C. Chambers rejected. But in the other case, EPA officials offer more watered-down criticism, and suggest much easier ways for mining to move forward.
In the broad sense, EPA Administrator Lisa Jackson has instructed her staff to review the flood of permits waiting to be issued by the Corps of Engineers following the 4th U.S. Circuit Court of Appeals decision last month. Strictly speaking, Jackson is just telling EPA staffers to do their jobs. Under the Clean Water Act, EPA is supposed to review valley fill permits that the Corps proposes to issue, and make sure the Corps — an agency more attuned to moving dirt than saving mountains and streams — is doing a good job.
The EPA announcement produced a predictable “round up the usual suspects” response in the media: Coal industry officials warned of massive job losses in an already scary economy; citizen groups and environmental organizations made out like the Obama administration had made their wildest dreams come true. The follow-up EPA announcement hasn’t yet gotten as much traction from either advocates or the media. But I’m not sure EPA bent over backwards to get it out, either
In that follow-up statement, EPA said it expects that “the bulk” of pending permits will “not raise environmental concerns.” EPA continued:
In cases where a permit does raise environmental concerns, we will work expeditiously with the Army Corps of Engineers to determine how these concerns can be addressed. EPAâ€™s submission of comments to the Corps on draft permits is a well-established procedure under the Clean Water Act to assure that environmental considerations are addressed in the permitting process.
For those of us who have been following mountaintop removal since Bill Clinton was president, this procedure is indeed very familiar. EPA officials used their oversight of the Corps” “dredge-and-fill” permits and of West Virginia DEP water pollution permits to try to limit the size of valley fills and slow down the expansion of mountaintop removal across the state’s southern coalfields. (See background here, here, here and here).
Eventually, the EPA’s push forced other federal and state agencies to go along with a massive study of mountaintop removal. The study was meant to lead to tougher regulations. But before it could be completed, George W. Bush became president, hijacked the study and used it to weaken rules governing mountaintop removal and further streamline the permit process.
Enter President Obama, his EPA Administrator Lisa Jackson and one of Jackson’s top deputies, Robert Sussman. They want to do something about mountaintop removal. Obama has made that clear himself, as recently as Monday, in little-noticed comments reported by the Louisville Courier-Journal. And it appears that these two permit letters, sent to the Corps on Monday — the same day administration lawyers were declining to give details of Obama’s plans on this issue — are the first step. So what do they say?
One letter outlines EPA concerns about a Massey Energy permit application that would allow the company to permanently bury more than 12,000 linear feet of streams in the Ethel area of Logan County, W.Va.Â The other letter summarizes EPA issues with a permit the Corps wants to issue that would allow Central Appalachia Mining to permanently bury nearly 19,000 linear feet of streams in Pike County, Ky.
Under the Clean Water Act, EPA can block the Corps from issuing these permits. It hasn’t done that yet. And EPA almost certainly can’t do that unless Obama or his top aides approve that action, given the high-profile nature of the mountaintop removal issue. Already, the White House Council on Environmental Quality is trying to mediate this Corps-EPA dispute.
Jim Hecker, environmental enforcement director at Public Justice, pointed out to me that in both letters, EPA invoked its authority — under the Corps’ own regulations — to identify violations of state water quality standards downstream from valley fills. “These violations must be remedied before a permit can be issued,” Hecker said.
And boy, on the Massey permit, just look at what EPA had to say:
EPA has expressed its significant concern regarding the impact to the human environment through a lack of avoidance and minimization efforts undertaken for this project, the cumulative impacts on the watershed, forest and habitat destruction and fragmentation within a globally significant and biologically diverse forest system, and the impairment of downstream water quality.
…EPA’s comments reflect a concern that the substantive environmental criteria upon which permit decisionsÂ Â are to be based will not be met. Based on the evidence that avoidance and minimization of the proposal’s impacts have not been fully considered, and that this project is likely to cause excursions from water quality standards, specifically, impairment of the aquatic life use, and will impact remaining unmined streams necessary to provide clean feshwater dilution to the watershed, EPA believes that the proposed project will result in substantial and unacceptable impacts to the aquatic resources of national importance.
Interestingly, EPA notes that Massey proposed to avoid using the approximate original contour/valley fill guidelines set up by WVDEP because it hopes the post-mining land use will “be FEMA relocation for residents in stream valleys following flooding events.” But, EPA notes, the Clean Water Act still requires an examination to assure the company examined a broad range of options to avoid or minimize stream damage.
In the final analysis, EPA concluded that this operation would cause “significant impacts,” and therefore requires the Corps to conduct an EIS before it issues the permit.
Now, take a look at the EPA letter concerning the Central Appalachia Mining permit proposal in Kentucky. While the length of stream to be buried is a mile greater, EPA doesn’t go nearly as much about the possible impacts of this operation:
…EPA continues to have significant concerns … regarding the cumulative impacts of this project on the watershed, impairment of downstream water quality, the degradation of perennial streams channels, and that impacts have not been adequately avoided and minimized. Moreover, EPA does not believe the proposed mitigation will adequately offset the persistent and permanent impacts to the aquatic ecosystem communities and functions.
Hecker pointed out to me that EPA says the state of Kentucky cannot approve this mine through a streamlined permit process, as it has usually done in the past, and must issue an individual permit instead. “This is a strengthening of the permitting process that would likely lead to more stringent limits and monitoring requirements,” Hecker said.
But, the EPA letter on the Kentucky mine also contains this language, which will no doubt not please mountaintop removal critics:
Since the proposed surface mine moves forward in phases, where one area is mined before moving to another, we suggest that the applicant develop an adaptive management plan that includes best management practices (BMPs) or best available technologies (BATs) to address potential impacts to water quality as each valley fill is constructed.
Why was EPA so tough on one mine, and not so much on the other? Maybe it’s a function of the letters being written by two different EPA regional offices. Or maybe it’s an indication that the Obama administration still hasn’t quite figured out where it’s going on this issue. Stay tuned.