Thursday, July 21, 2011

EPA finalizes 'guidance' for Appalachian strip mines; coal industry says it's a regulation

The Environmental Protection Agency has issued its final "guidance" to states and the Army Corps of Engineers for issuing permits for Appalachian coal mines, with few changes from the initial version that prompted lawsuits and protests from the industry and state officials. The heart of the guidance is a conductivity standard for water downsteam from valley fills made of material excavated for mountaintop-removal mines. Conductivity is a measure of ions or salts in water, and as conductivity increases, the less the water is able to sustain animal life. Our earlier story on conductivity is here. (Photo by Paul Corbit Brown)

"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," Ken Ward Jr. reports on the Coal Tattoo blog of The Charleston Gazette. "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." (Read more)

Hal Quinn, president of the National Mining Association, cited Judge Reggie Walton in the NMA reaction to the final guidance: "As recently stated by the U.S. District Court for the District of Columbia, the guidance and related actions by EPA are, in reality, ‘legislative rules and alter the permitting procedures under the Clean Water Act.’ The court further noted EPA’s guidance has ‘encroached upon the role carved out for the states under the Clean Water Act by setting region-wide conductivity standards.’" EPA can block issuance of mine permits.

With the lawsuit in mind, EPA repeatedly says the guidance it is not legally binding "and will not be implemented as binding in practice." But Rep. Nick Joe Rahall, D-W.Va., said "We are all too aware that it will use it as a club to subdue all parties involved in the permitting process to its will."

EPA said it took the advice of its Scientific Advisory Board that "use of the benchmark for assessing effects on aquatic ecosystems should be limited to ecoregions 68, 69, and 70" in West Virginia and Kentucky pending validation in the field. Those regions on the map are the Southwestern Appalachians (68), the Central Appalachians (69), where almost all mountaintop mining is done; and the Western Allegheny Plateau (70). It also said the guidance should not be applied to ephemeral streams, those that flow only in response to rainfall or runoff.

Environmental lawyer Tom FitzGerald of the Kentucky Resources Council said the guidance "provides important clarification of the agency's expectation that states issuing discharge permits will no longer ignore the impacts of dissolved sulfates, carbonates and chlorides on the health of headwater streams," and that the laws on fill material in streams "apply to coal wastes and spoil just as they do to every other industry." FitzGerald said the industry in the region has "fallen far short of what Congress intended some 34 years ago," and the guidance serves notice that "the narrative water quality protections that have been in state regulations for decades, yet have been honored in the breach, can no longer be ignored." To download an 872KB PDF of the guidance, which includes much background information, click here.

UPDATE, July 28: Appalachian Voices, an anti-moutaintop-removal group, said the guidance had a softer tone than the draft version:
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.

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