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?
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).
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?
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.