Big news: EPA finalizes water quality guidance to reduce impacts of mountaintop removal mining

July 21, 2011 by Ken Ward Jr.

The Obama administration finalized its highly controversial new water quality guidance, continuing EPA Administrator Lisa Jackson’s efforts — despite major political pressure on the agency — to reduce the serious environmental and public health impacts of mountaintop removal coal mining in Appalachia.

EPA has posted the final guidance here and there’s a summary available here.

EPA acting assistant administrator for water Nancy Stoner said:

Under this guidance, EPA will continue to work with other federal agencies, states, local communities, and companies to design mining operations that adequately protect our nation’s waters and people’s health. We have a responsibility under the law to protect water quality and this guidance allows EPA to work with companies to meet that goal, based on the best science.

EPA said in a statement:

The guidance, which replaces the interim-final guidance issued by EPA on April 1, 2010, is based on the best-available science and incorporates input and feedback from over 60,000 comments received from the public and key stakeholders. By providing EPA’s regional offices with the latest information on existing legal requirements, the guidance enables them to work together with states, the U.S. Army Corps of Engineers, mining companies, and the public towards a balanced approach that protects communities from harmful pollution associated with coal mining. EPA will apply the guidance flexibly, taking into account site-specific information and additional science to arrive at the best decisions on a case-by-case basis.

In the guidance itself, EPA said:

The environmental legacy of mining operations in the Appalachian region is far-reaching. Recent studies, as well as the experiences of Appalachian coalfield communities, point to new environmental and health challenges that were largely unknown even ten years ago.

The guidance continues:

Since 1992, more than 1,200 miles of Appalachian streams have been filled by Appalachian surface coal mining practices, at an estimated ongoing rate of 120 miles per year. Further, while precise estimates are limited, the estimated scale of deforestation from existing Appalachian surface mining operations is greater in size than the State of Delaware, or 5,700 square kilometers predicted to be affected by 2012.

The full cumulative effects of surface coal mining operations at this scope and scale are still largely unknown.

Appalachian deforestation has been linked to significant changes in aquatic communities as well as to modified storm runoff regimes, accelerated sediment and nutrient transport, reduced organic matter inputs, increased algal production, and altered stream thermal regimes.

And, EPA said in the guidance:

Possible human health impacts from coal mining activities have also been documented, including peer-reviewed public health literature that has preliminarily identified associations between increases in surface coal mining activities and increasing rates of cancer, birth defects, and other health problems in Appalachian communities.

The guidance largely follows the draft guidance issued by EPA back in April 2010 as part of the Obama administration’s promised crackdown on mountaintop removal. EPA based the guidance in part on a detailed report on mountaintop removal’s water quality impacts, a report that was backed up by a review of experts put together by the agency’s Science Advisory Board.

EPA’s actions are also supported by the growing body of peer-reviewed science that concludes mountaintop removal is having “pervasive and irreversible” impacts on the Appalachian environment — not to mention the series of studies by WVU’s Michael Hendryx that suggest large-scale surface mining is linked to negative human health effects.


EPA Administrator Lisa Jackson right, and Maryland Gov. Martin O’Malley, center, look over a display of soil conservation techniques during a meeting of the Chesapeake Bay Executive Council in Richmond, Va., Monday, July 11, 2011. (AP Photo/Steve Helber)


Regular readers know that EPA Administrator Lisa Jackson has described the potential impacts of the guidance this way:

Let me be clear. This is not about ending coal mining. This is about ending coal mining pollution.

Minimizing the number of valley fills is a very, very key factor. You’re talking about no or very few valley fills that are going to meet standards like this.

The intent here is to tell people what the science is telling us, which is it would be untrue to say that you can have numbers of valley fills, anything more than say, very minimal valley fills and not expect to see irreversible damage to stream health.

That’s just the truth of it. That’s the science of it.


The final guidance was issued by EPA just a day after it received the OK from the White House Office of Management and Budget, and just before a deadline tomorrow for Obama administration lawyers to file a key legal brief in a lawsuit challenging the mountaintop removal crackdown.

As discussed here before, the EPA’s actions are being fought in court by the coal industry as well as by the state of West Virginia, in a suit filed by then-Gov. Joe Manchin.

EPA critics have already won one limited skirmish in that litigation, in which a federal judge indicated it appears the agency had implemented significant changes in the permit process without following procedures for required public input and comment. It will be interesting to see how the fact that EPA has not finalized its guidance impacts that ongoing litigation. While an EPA brief is due tomorrow, substantive hearings in the part of the case challenging the EPA guidance aren’t scheduled until late October.

EPA also acted today despite the growing political pressure from the Republican-controlled House of Representatives, from the coal industry and from the industry’s friends among Democratic coal-state lawmakers.

25 Responses to “Big news: EPA finalizes water quality guidance to reduce impacts of mountaintop removal mining”

  1. Ralphieboy says:

    The summary link doesn’t seem to be working and the legal jargon of the long-form guidance document is hard to decifer. Does this guidance mean that the EPA will no longer approve mining operations that include valley fills?

  2. Ken Ward Jr. says:


    The link works fine for me. You might try hitting reload and giving the file time to open. It’s a .pdf file.

    Here’s a link to a previous story where EPA outlined the possible impacts of this guidance:

    In particular:

    During a conference call Thursday afternoon, EPA Administrator Lisa Jackson told reporters, “Let me be clear. This is not about ending coal mining. This is about ending coal mining pollution.”

    Jackson cited the case of the Hobet 45 mountaintop removal permit, in which EPA pressure pushed the company to cut stream impacts in half but still be able to mine almost all of the coal it originally planned. While Hobet 45 technically does not have “valley fills,” roughly 3 miles of streams would still be buried when the company mines through streambeds.

    “Minimizing the number of valley fills is a very, very key factor,” Jackson said. “You’re talking about no or very few valley fills that are going to meet standards like this.

    “The intent here is to tell people what the science is telling us, which is it would be untrue to say that you can have numbers of valley fills, anything more than say, very minimal valley fills and not expect to see irreversible damage to stream health.

    “That’s just the truth of it,” Jackson said. “That’s the science of it.”

  3. Pragmatic Realist says:

    You can mine all the coal you want, but you are just not able to fill in streams with your mining waste or dump it within 50 feet of a stream. What’s the problem with that?

    A person or corporation may own land or the right to mine on land, but they do not own the water and they cannot be allowed to destroy streams or put toxic material in them which will be dissolved and carried downstream in the water. This all seems perfectly obvious and reasonable to me, and it has been the law for 40 years.

  4. Ralphieboy says:

    Here’s an excerpt from the section of the guideline with the heading “Key Provisions of the Guidelines.”

    The fundamental premise of the Guidelines is that no discharge of dredged or fill material may be permitted: if a practicable alternative exists that is less damaging to the aquatic environment, i.e., if it is not the Least Environmentally Damaging Practicable Alternative (LEDPA); if it causes or contributes, after consideration of disposal site dilution and dispersion, to violations of any applicable State water quality standard; or if the nation’s waters would be significantly degraded. 40 C.F.R. § 230.10.32
    In addition, if the proposed discharge is associated with a non-water-dependent activity such as surface coal mining, and the discharge involves a special aquatic site, then upland alternatives are presumed to be available, unless clearly demonstrated otherwise. 40 C.F.R. § 230.10(a)(3). A demonstration must first be made that there is no practicable alternative to the proposed discharge to the waters of the U.S. that would have less adverse impact on the aquatic ecosystem. 40 C.F.R. § 230.10(a). If there is no less damaging practicable alternative, then all appropriate and practicable steps to minimize potential adverse impacts of the discharge must be taken. 40 C.F.R. § 230.10(d). Determination of direct, secondary, and cumulative adverse environmental effects on streams, wetlands, and other aquatic resources is required by the Guidelines. 40 C.F.R. § 230.11. Finally, compensatory mitigation may be required to compensate for any remaining aquatic impacts. 40 C.F.R. § 230.91-98.

  5. Nanette says:

    I am glad that the EPA is not cowering to our elected officials nor the threats and fear mongering of the coal industry. I hope that these new rules are enforced fully. It is a start and only a start of the end of the pollution of the coal industry in our valleys.

  6. PlethoDon Juan says:

    Just to be clear, The Guidance is refering to the CWA Section 404(b)(1) Guidelines (the Guidelines) found at 40 CFR 23O and contained within the Guidance document released today. These are the actual regulatory requirements that the Guidance is drawing upon when Section 404 permits are involved. Be sure you don’t mix up the “Guidance” that was released today with the “The Guidelines”. This is the heart of avoidance and minimization regulatory language that EPA and the Army Corps of Engineers rely on and what applicants are required to follow. This is not new language by any means.

  7. Matt Wasson says:

    Folks need to be careful about getting too enthusiastic about this guidance – the degree to which it’s been weakened since April of last year is remarkable and frightening. While there’s no question that EPA’s intentions are good, it now relies on agencies like WVDEP that have an execrable enforcement record on the Clean Water Act. Given that, it’s not clear to me that

    We’re still going through the document, but a simple analysis of the words used in the final guidance memo compared with the interim guidance released last year speaks volumes. As we wrote in Appalachian Voices press release:

    The words “recommend,” “consider” and “consistent with” were used twice as frequently in the final guidance, while words “compliance,” “requires” and “prohibit” were used half as often. Similarly, while phrases implying a more limited scope of the guidance, such as “site-specific” and “case-by-case” were used 10 times more frequently in the final guidance, words referencing the environmental impacts of mining such as “impairment” and “adverse” were used half as often.

    A couple of graphics showing this analysis are up on our flickr account here:

    Again, this is not to cast aspersions at EPA, but the weak language (lot of shoulds rather than shalls) leaves it very much in doubt whether, as a practical matter, people living near mountaintop removal mines have any meaningful protection at all.

  8. Darlene Wilson says:

    Matt’s comment above has ’bout burst the bubble in which I was floating. So we’re left with state-by-state erosion of the law. Much ado about… well, not much.

  9. Ralphieboy says:

    Yes, this guidance seems to be “watered-down” (no pun intended) when compared to the language from the interim guidance. Very disappointing. It appears that the EPA has caved somewhat to the pressure from coal interests and their congressional supporters.

  10. Ralphieboy says:

    The folks over at are calling this guidance a “bitter disappointment.”

  11. Matt Wasson says:

    Jeez, I really didn’t mean to bust everyone’s bubble. There’s no question that local residents — not to mention the many denizens of Appalachian headwater streams — are a lot better off with the guidance than without it. And folks at the EPA showed some real gumption to get it finalized in the face of the backlash that Rahall’s been instigating in Congress, not to mention what must have been a lot of pushback from other Administrative agencies like OMB and the Army Corps.

    But we need to be realistic about how the guidance will actually get used, and there are a lot of reasons for concern there – a lot more than I anticipated before seeing the document. It’s not clear exactly what the EPA will do when the WVDEP and the Army Corps of Engineers decide to just blow the agency off. And this guidance reads like one big 40-something page invitation for WVDEP and the Corps to do just that.

    This battle is far, far from over.

  12. Jim Sconyers says:

    I’m hoping someone will explicate the remarks about how the new guidance relies on the WV DEP. Generally federal law gives states enforcement, but only if state programs are strong enough.

  13. Matt Wasson says:


    It’s not that the guidance relies on WVDEP in any specific way, it’s just that the EPA has backed off a lot on asserting their authority over state permitting programs. Given the lawsuit and Congressional attacks they faced, what the EPA did makes some sense, but our concern is that the new guidance all but invites WVDEP and other state agencies to essentially ignore the EPA. Here’s an example of some of the anemic language in the final guidance to give you the flavor:

    “EPA recommends that States give serious consideration to the science contained in its two peer-reviewed reports, which indicates that substantial and increasing aquatic life impacts occur as conductivity increases beyond 300 µS/cm.”


    “[the guidance] does not impose legally or practically binding requirements on EPA, the Corps, or the regulated community, and may not apply to a particular situation depending on the circumstances.”

    Given the million acres of destruction that the coal industry drove through a narrow loophole in SMCRA, with the full complicity of WVDEP and other state agencies, any discussion of the guidance not applying in “particular situations” or only on a “site-specific” or “case-by-case” basis, sounds a lot like the same old loopholes that have led to the obliteration of more than 500 Appalachian mountains. Make sense?

  14. Matt Wasson says:

    Also, is it just me or is there an absolutely deafening silence from the WV Coal Association, Kentucky Coal Association, Friends of Coal, FACES of Coal, and the offices of Rahall, Manchin, Rockefeller, Capito and McKinley?

  15. Ralphieboy says:

    Yeah Matt, I noticed that too. Usually by now there would be multiple postings from coal supporters on this blog alone. I figure they haven’t formulated their talking points yet.

  16. bo webb says:

    While I am appreciative of this guidline moving forward I also realize that it does not provide guidance for a safe environment for those that live beneath and near mtr. There are only two solutions to the health hazards posed by mountaintop removal.
    One: Keep all materials, including blasting dust on the mine site, out of the air people breath and out of the water people drink.
    Two: The most logical, Abolish mountaintop removal.
    If I use deisel fuel and ammonium nitrate to landscape my property and it fouls the air my neighbors breath I will be ordered to stop or face a jail sentence. What is the difference between that and a large scale operation that is poisoning the air?

  17. Enviro says:

    Apparently Dr. Wasson, et al, has missed some of the press releases in Kentucky from the Kentucky Coal Association and the National Mining Association, both ripping EPA’s new guidance.

  18. Ken Ward Jr. says:

    Ralphieboy and Matt,

    I was on a tight deadline for something yesterday, and didn’t have time to really post reactions to EPA’s announcement.

    We did include some reactions in our print story, which is posted online here,

    I received reactions from the National Mining Association and from Sen. Manchin. Their releases are:



  19. Enviro says:

    Regarding the enforceability of guidance, if and until EPA passes these requirements as regulations, then USEPA cannot (even they have and will continue to do) use guidance to force others to adhere to it. It’s against the law (APA).

  20. Ralphieboy says:

    Thanks Ken for posting those links. I notice that neither of Sen. Manchin’s releases in regards to the EPA guidelines or Mayor Bloomberg’s support of the Sierra Club make any mention whatsoever of the recent studies linking MTR to the poor health of the people living in those areas of his state. I would like to see someone call him out on that as you did with Rep. Rahall.

  21. John says:

    You people should be ashamed of yourselfs being happy when so many people are going to be out of work it is so sad to see just think of the miners children this Xmas when they don’t get nothing o yea you don’t care you done showed that

  22. Edd442 says:

    I think Matt Wasson has raised some very valid concerns here. There’s little doubt in my mind that the lawsuits have gotten to EPA, and this is their way of protecting themselves, legally and politically, by backing off. The industry’s and the coalfield politicians’ outcry has been so loud on this issue as to be deafening, and I fear that the environmental groups’ praise for EPA’s actions has made them complacent with finding the “middle ground”.
    Guidance is never legally enforceable: this action was never crafted to stop the practice of MTR. Meanwhile, the EPA is under attack from all sorts of political angles, with bills to cut their funding once again, and bills to strip them of their oversight authority. I sure hope Sierra Club uses their new $50 million wisely, because there is a lot of work to do.

  23. David Fields says:

    I noted Matt Wasson’s comment:
    “It’s not that the guidance relies on WVDEP in any specific way, it’s just that the EPA has backed off a lot on asserting their authority over state permitting programs.”
    There is another article on this issue, “EPA finalizes mountaintop removal guidance”, in Legal Planet (
    which notes that the authority for EPA’s actions is from the Clean Water Act, and then adds:
    “The only differences between the interim guidance and this final one are cosmetic. Not surprisingly, the final guidance emphasizes its explanatory, non-binding nature. That’s because the coal industry and West Virginia are suing to invalidate the guidance on the grounds, among others, that it is really a new regulation that should have gone through the notice and comment process. A district court opinion issued in January tentatively agreed with that argument. The final guidance, by repeatedly emphasizing its non-binding nature and pointing more clearly to the statutory provisions it implements, seeks to blunt that argument and to reinforce EPA’s claim that only permit decisions, not the guidance itself, are subject to judicial review.”

  24. Matt Wasson says:

    David Fields and Edd442 are both rightly noting that it was the allegations that EPA violated the Administrative Procedures Act, which appeared likely to be found to have merit, that has driven the changes in the document. That is why we haven’t been critical of EPA itself for how the guidance changed.

    But it would be a mistake to write the changes off as purely cosmetic either. There are a lot of signs that EPA is backing off it’s commitment to ensure states implement the Clean Water Act in any meaningful way whatsoever. And anyone who has been following the saga in Kentucky over ICG and Frasure Creek’s violations of the Clean Water Act knows that EPA Region 4 is already doing an execrable job of ensuring that states are running credible permitting programs – they simply aren’t.

    But getting into the technicalities doesn’t help much to make the point we’re trying to make — not that the EPA is throwing in the towel, but that it has a lot more work to do to ensure that streams and communities have protection from the devastating consequences of living near a mountaintop removal mine. The language of the guidance, regardless of why the language changed, underscores the fact that there is very little meaningful protection for people living near these mines, or for the streams and mountains of Appalachia.

  25. Nanette says:

    Look, we do care about jobs, good clean jobs. We also care about our health and the health of our neighbors. We care about the air we breathe and the water we drink. Believe it or not we care a lot about your children and their future and their longterm health. Some lean Christmases seems like a small price to pay to improve our state and the longterm health of our residents. If we could get some of the monies in here for new high tech energies would make all of our lives better over the long term. We can no longer just think about today or tomorrow, we must start thinking in terms of decades. Is is going to be rough? Sure it is, for all of us, but it is absolutely necessary.

Leave a Reply