“I will tell you that there’s some pretty country up there that’s been torn up pretty good.”
— President Obama, March 23, 2009
Last week, Bruce Nilles and Mary Anne Hitt of the Sierra Club’s Beyond Coal Campaign wrote a Huffington Post commentary called The Clock Has Started Ticking on Mountaintop Removal Mining permits. The thrust was that a 60-day window for the federal EPA to either block pending mining permits or shut up about it had started ticking.
They got it mostly right, but the post was a little confusing because it added together two different time windows for EPA action under the Obama administration’s plan to take a closer look at valley fill authorizations being considered by the U.S. Army Corps of Engineers. The whole process is a little more complicated than they made it out. But indeed, the clocking is ticking.
Before too long, we’ll see if the Obama EPA is serious about trying to limit the environmental damage from mountaintop removal — or if they’re giving in to political pressure from mining’s friends in Congress or from political leaders like Gov. Joe Manchin here in West Virginia.
Here’s how it works:
1. Back in June, the EPA published a list of 108 applications that were pending from mining companies for stream-filling activities under Section 404 of the Clean Water Act. Remember that under the law, the Corps has primary authority to review and issue these permits. But, EPA is supposed to look over the Corps’ shoulder, and has the ability to overrule the Corps if it chooses. This list of 108 applications was the universe of mining permits for which the Corps had issued public notices or pre-construction notices prior to March 31, 2009.
2. Under multi-agency agreement, EPA asked for additional information on each of these 108 permits, in order to get a better idea of what was proposed, what the impacts would be, and how those impacts were being avoided or minimized. Once it got that information, EPA then had 45 days to “propose an initial list of permit applications about which” the EPA’s regional offices “have concerns.”
3. It is this 45-day clock which is now ticking. EPA says it runs out on Sept. 8, the Tuesday after Labor Day.
4. The initial list, under the multi-agency agreement, “will identify the nature of environmental concerns EPA has identified,” and any steps recommended to remedy those concerns.
5. This initial list is supposed to be given to the Corps and made available to the public on the Web sites of the EPA region involved. Then, within 14 days, each EPA region is supposed to identify to EPA headquarters those permit applications “raising concerns” and those not raising concerns.
6. After that, EPA headquarters will submit a consolidated EPA list of permit applications to the Corps headquarters. According to the multi-agency agreement, “Permit applications not subject to additional review and coordination may be acted on by the Corps without further coordination with EPA.” Basically, that means that any permits not on this EPA-to-the-Corps headquarters list can be issued right away. In their Huffington Post piece, Nilles and Hitt added the initial 45 days and the 14 days after that together, and rounded up to 60 days for simplicity’s sake.
7. But, I found that a little confusing — because after all of this, there is another 60-day-clock that gets triggered. It gives the EPA and the Corps 60 days for “enhanced coordination” to reach a “timely resolution” on the permits EPA puts on its list. This 60 days starts when the Corps notifies EPA that a permit on EPA’s list is “ready for enhanced coordination.”
8. Whenever “workload dictates or issue resolution warrants,” EPA or the Corps can seek a 15-day time extension.
9. If disagreements over a permit can’t be resolved and the 60-day clock runs out, the Corps can choose to issue a permit without EPA approval. But, it must first give EPA 10 days notice.
10. After that days, EPA must either back off or initiate action under Section 404(c) of the Clean Water Act, the part of the law that allows EPA to block Corps permits it finds unacceptable.
Keep in mind, none of these time limits are anywhere in the Clean Water Act or in EPA or Corps regulations. The Obama administration made them up — either to put off decisions on an overall policy on mountaintop removal (how much damage is considered acceptable?) or to avoid political criticism that EPA permit reviews amount to a “regulatory blackhole.” Or maybe both.
These agencies haven’t offered any evidence that the time limits spelled out are actually reasonable for overworked staffers to actually review these complex permit applications and determine if they comply with the law. And while they’ve added time constraints that could limit the depth and detail of permit reviews, the agencies have added little in the way of public involvement or transparency.
The number of permits currently still on the list being reviewed by EPA seems to vary, depending on what day it is. But here’s the most recent official list I’ve been able to get, in an Excel spreadsheet.
Make no mistake, the political pressure is focused on EPA right now. Corps officials support issuing these permits, and continuing business as usual on mountaintop removal.
Coal Tattoo readers well know that the Manchin administration’s Environmental Protection Secretary, Randy Huffman, has made it no secret that he doesn’t think these EPA permit reviews are necessary — and that he doesn’t think EPA has much evidence to show that mountaintop removal is causing any sort of environmental violations.
There is increasing pressure on Randy, the WVDEP and the coal industry over these matters, as evidenced by this week’s tree sitting action down in Raleigh County. The WVDEP responded this week with harsh criticism for my coverage. Read that yourself here — along with the documents I’ve quoted from — and decide for yourself.
It’s also worth noting that, in our neighboring Virginia, the state Department of Mines, Minerals and Energy this week began to hear what citizen groups were saying, at least on one major strip-mine permit that residents are fighting to block.
The Corps had already suspended its approval of A&G Coal Corp.’s Ison Rock Ridge Surface Mine permit, but citizens were hearing that the Virginia DMME was going to allow the mine to go forward without the Corps approval. But this week, agency officials wrote to the company, asking for an explanation of how the mining could possibly move ahead without this Corps permit.
Folks from Southern Appalachian Mountain Stewards, a group opposing the mine, said DMME’s action “is further indication that the mine application is in an excessively dangerous and irresponsible location.” Pete Ramey, president of SAMS, said:
This is a welcome temporary reprieve for the people of Wise County, but the threat of this enormous mine requires permanent protection for the communities, streams and mountains.