Coal Tattoo

Mountaintop removal: Not the end, just the beginning

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Photo by Vivan Stockman

Environmental groups are falling all over themselves this afternoon to praise the Obama administration for EPA’s decision to more closely examine dozens of mountaintop removal permits proposed across the Appalachian coalfields.

That’s understandable. The last time EPA came out with a list of permits, it was clearing a long list of them, many with serious environmental impacts, for approval by the federal Army Corps of Engineers. Today, EPA withstood what had to be incredible political pressure from the mining industry and its friends in Congress to drop this whole thing.

Responses from the National Mining Association and West Virginia’s GOP Congresswoman, Shelley Moore Capito, were pretty predictable: Blasting EPA for adding more delays to an already lengthy and complicated permit review process.

More interesting, though, was the lack of outraged responses from folks like Sen. Robert C. Byrd and Rep. Nick J. Rahall and even from the United Mine Workers of America. (The no comment from Byrd and Rahall was especially fascinating, since both also declined earlier this week to step up and join Sen. Jay Rockefeller and Gov. Joe Manchin in fighting EPA’s new decision to fight the largest mountaintop removal permit in West Virginia history).

Maybe a few West Virginia political leaders are starting to realize that there’s no immediate danger that President Barack Obama is going to wake up one day soon and shut down all surface mining in Appalachia. Maybe they’re starting to see what’s going on as some sort of process … EPA has said it isn’t outlawing mountaintop removal, but is worried about the rising damage from this sort of mining and wants to take strong steps to reduce that damage.

EPA Administrator Lisa Jackson, for example, said:

We look forward to working closely with the Army Corps of Engineers, with the involvement of the mining companies, to achieve a resolution of EPA’s concerns that avoids harmful environmental impacts and meets our energy and economic needs.

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And Jo-Ellen Darcy, assistant Army secretary in charge of the Corps, said:

I am confident that this collaborative effort will strengthen our environmental reviews while allowing sustainable economic development to proceed.

There’s a lot of road ahead on this issue, and maybe Byrd, Rahall and the UMWA are just keeping their powder dry.

It’s also likely that how strongly Byrd, Rahall and the UMWA respond later in this process depends in large part on what EPA ends up doing with permits that Patriot Coal desperately wants to continue mining with the dragline at its unionized Hobet 21 complex along the Boone-Lincoln County line here in West Virginia.

So next on the agenda is to see which of these 79 permits EPA regional offices put on their final review lists, to be submitted to agency headquarters within two weeks. And then, we’ll have to wait and see how these dual-agency reviews — generally limited to 60 days — by EPA and the Corps turn out … Will they find common ground on reducing the size of a few valley fills here and there and then push permits out the door? Will EPA draw a line somewhere and say a certain size stream or fill is too big and just won’t be allowed?

We don’t know … but we do have a glimpse now of a tool that EPA has started using in reviewing these permits. It’s called the Multi-criteria Integrated Resource Assessment, or MIRA. You can read all sorts of stuff about it on EPA’s Web site,  and if you are willing to go through a long list of definitions, you can then see what sort of information MIRA came up with for an even longer list of permits posted here. If you don’t have the stomach for all of that, you can get a short version of it from this Fact Sheet or this Q and A document.

It’s not clear if EPA is going to use this tool to actually make permit issuance decisions, or if it’s just something the agency came up with to help it decide which permits it wanted to sit down and go over with the Corps and mining companies. EPA emphasized today that MIRA is not a substitute for applying the Clean Water Act’s 404(b)(1) guidelines to mining permits, but said:

The advantage of using MIRA in this particular circumstance is to provide a consistent and timely relative review of all permit applications subject to the enhanced coordination procedures.

But NMA made a point of criticizing EPA for bringing MIRA into the process:

EPA has adopted its own process and criteria for reviewing coal mine permits that is the responsibility of the Army Corp of Engineers.  No one outside of EPA –not even the Corps – knows what criteria EPA has used to now find these 79 permits insufficient.  Permit applicants do not know what conditions outside the bounds of the existing regulations they must meet to obtain a permit.  

In effect, EPA is imposing new regulations that have not been proposed or publicly reviewed as required by law.  This action reinforces our earlier call for a transparent process that gives coal operators confidence in the regulatory process.

The NMA also went a bit over the top in referring to the EPA permit reviews as a “moratorium on Eastern coal mining.”

Mining continues, and the NMA knows that. Figuring out how these permit reviews affect production and jobs at specific mines is more complicated — generally it involves knowing if a company is about out of coal or about out of valley fill space on an existing permit and needs the next permit in its sequence to keep going. I’ve found that information is often difficult to come by, until environmentalists haul a company into court and get the mine’s operational people on the stand to answer questions.

In the long term, we do know that the Obama administration says it wants to eliminate the use of the Corps’ long-standing streamlined permit review process for valley fills.  But we don’t know for sure exactly what the administration is going to do about the buffer zone rule, now that a federal judge blocked the Interior Department’s effort to just abandon Bush administration changes to it without going through public review and comment again.

And above all, we have no idea if the administration is going to do what environmental groups really want: Reverse the Bush administration changes to the Clean Water Act “fill rule,” a move that could end valley fills.

In the wake of Friday’s EPA announcement, environmental groups were quick to call for just that action. Among them was Joan Mulhern, senior legislative counsel for Earthjustice, who said:

For this stage in the permitting process, EPA is going the right thing, and we commend Administrator Jackson for her leadership. These mines, if permitted, would destroy many miles of streams in a region already devastated by mountaintop removal.

We are confident that if EPA and the Corps do the ‘enhancedreview as promised, they will determine that all of the mines with valley fills will cause unacceptable harm and violate the law.

The next step should be not only to conduct the review and deny permits for mines that destroy waters, but the administration must also reinstate the clean water rules that prevented industries from dumping their waste into streams.