EPA to Limit Mountaintop Mining

4/6/2010

The U.S. Environmental Protection Agency (EPA) announced new guidance April 1 that should limit the impacts of mountaintop coal mining in Appalachia. The agency issued the guidance to clarify EPA's expectations regarding legal and scientific interpretations when issuing permits for the destructive surface mining practice.

The practice of mountaintop mining involves blasting off the tops of mountains to access coal seams hidden below. The debris from blasting is pushed down the mountainsides into the valleys below. This "valley fill" not only covers miles of streams but also damages rivers, water sources, and aquatic life downstream when the fill leaches pollutants.

A summary of EPA's guidance describes the damage from this practice: "Since 1992, nearly 2,000 miles of Appalachian streams have been filled at a rate of 120 miles per year by surface mining practices. A recent EPA study found that nine out of every 10 streams downstream of surface mining operations exhibit significant impacts to aquatic life." Health impacts result from highly toxic pollutants such as selenium leaching into downstream water sources.

One of the "midnight regulations" completed by the George W. Bush administration made it legal for mining companies to dump this fill. The rule became effective on Jan. 11, 2009, just days before Barack Obama was inaugurated. The Obama administration has struggled with how to approach overturning or revising the rule. The agency conducted reviews of the permitting process and the scientific impacts of the mining practice before announcing the new policy.

EPA had been under pressure from environmentalists, coal companies, and even Sen. Robert Byrd (D-WV), who had met with EPA Administrator Lisa Jackson several times, to provide clarity on the permitting process. Byrd's office released a press statement April 1 saying, "I am pleased that EPA Administrator Jackson took our concerns about the need to provide clarity very seriously and has responded with these guidelines."

In announcing the new guidance, Jackson noted the extensive scientific study and review the agency had conducted. She said that the agency would also begin focusing on the "emerging evidence of the potential health impacts" of mountaintop mining. "Let me be clear: this is not about ending coal mining. This is about ending coal mining pollution. Coal communities should not have to sacrifice their environment, or their health, or their economic future to mountaintop mining. They deserve the full protection of our Clean Water laws," Jackson said.

The policy change comes on the heels of an announcement March 26 that EPA was proposing to significantly reduce or stop mining at the Spruce No. 1 surface mine in Logan County, WV, one of the largest surface mining operations ever proposed, according to EPA's press release. The mining proposal "would bury over 7 miles of headwater streams, directly impact 2,278 acres of forestland and degrade water quality in streams adjacent to the mine," EPA said. Spruce mine received a permit in 2007, but the permit was challenged in court, thus delaying any mining. EPA and the mine's owners could not reach an agreement that would have significantly mitigated the environmental impacts of the mine.

The new guidance applies to all pending and new mountaintop mining permit requests and to permit renewals. The policy was sent to EPA's regional administrators in regions 3, 4, and 5, covering Appalachian states from Pennsylvania south to Georgia, Alabama, and Mississippi. Under the Clean Water Act (CWA), states have the responsibility for issuing permits to discharge pollutants into waterways. The guidance is intended to provide the regional and state offices with a framework for evaluating individual permit applications consistently and in keeping with the requirements of the CWA, the National Environmental Policy Act, and the Environmental Justice Executive Order (E.O. 12898).

The guidance contains the latest scientific information important to determining compliance with the CWA, clarifies how the law applies to mountaintop mining and its debris to achieve water quality protection, and enhances opportunities for members of coal mining communities affected by potential mining activity to participate in reviewing proposed new actions.

The policy also calls for a greater emphasis on numerical standards to measure the electrical conductivity of streams, the first time EPA has used a conductivity standard. By measuring electrical conductivity, regulators can determine the extent of pollutants in water. Specifically, the conductivity measure is the amount of salt in the water which results from mine debris and runoff, essentially turning fresh water into salt water and damaging aquatic life.

Reaction to the new guidance by environmental groups was laudatory. Earthjustice, one of the environmental groups that sued on behalf of Appalachian conservation groups to overturn the Bush midnight regulation, issued a statement quoting its president Trip Van Noppen, saying, "We commend Administrator Jackson and the EPA for recognizing that the people of coal communities deserve the full protection of our clean water laws, and we're glad to see that EPA is back on the job."

Rob Perks of the Natural Resources Defense Council said, "At long last, the EPA is committing to protecting Appalachian communities from the world's worst coal mining. Today’s action to protect waterways from the impacts of mountaintop removal is restoring science to its rightful place and reinforcing the agency's commitment to the Clean Water Act…. For every ton of coal extracted, another 20-25 tons of mining waste is disposed of in so-called valley fills. Strict enforcement of scientific requirements in the Clean Water Act is a much-needed step in the right direction."

Bruce Watzman of the National Mining Association expressed the displeasure of mining companies, saying, "America’s coal mining communities are deeply concerned by the impact of policy announced today by EPA on coal mining permits, employment and economic activity throughout Appalachia…. The policy was announced without the required transparency and opportunity for public comment that is afforded to policies of this magnitude."

EPA will take public comment on the guidance, which is effective on an interim basis pending completion of the comment process. According to EPA's press release, the agency will consider revising the guidance after the comment process and after the agency's Science Advisory Board completes its review of EPA's scientific studies.

Photo in teaser by flickr user NRDC media, used under a Creative Commons license.