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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Joins In Comments Supporting EPA's Guidance On Improving Review of Appalachian Mining Operations Under Clean Water Act.  Posted: December 1, 2010



December 1, 2010

The Honorable Lisa Jackson
Administrator
United States Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, DC 20460

RE: Docket ID EPA-HQ-OW-2010-0315 – Community Comments on EPA Guidance on Stream Pollution Associated with Mountaintop Removal Mining

Dear Administrator Jackson,

We would like to begin by applauding the EPA for recognizing the need to address the best available science on stream pollution associated with mountaintop removal mining, and we thank the EPA for issuing this valuable guidance to ensure that regional staff will finally follow Clean Water Act requirements and prevent one of the devastating impacts of mountaintop removal coal mining.

We also thank the Agency for carrying out an open comment period on this important guidance document — this underscores the importance of this issue to the people of Appalachia and has enabled them to express their support for the full enforcement one of our nation’s oldest and most important environmental laws, the Clean Water Act.

Although many of us will submit more detailed comments for your review, we are coming together to submit this letter to voice our collective support for EPA’s guidance on stream pollution associated with mountaintop removal mining.

We support EPA’s decision to implement this guidance immediately. We support this guidance for a number of reasons: First, there is unequivocal evidence from numerous studies both within EPA and by independent scientists documenting that conductivity is elevated in the waterways downstream from mountaintop removal mines in central Appalachia. Further, all of the available science shows that a stream’s conductivity level is a reliable indicator of stream function and health, and we know that losses of stream life also indicate much broader dangers to the ecosystems and people who depend on them. The health of other aquatic life and people living near and relying on these streams is of greatest concern.

The April 1, 2010 conductivity benchmark was based on a thorough study quantifying the relationship between high conductivity and biological impairment. In particular, peer-reviewed scientific studies show that there is a strong relationship between conductivity of at least 300-500 µS/cm, and harm to aquatic life in the affected streams. The data collected have validated EPA’s findings and have been subjected to very rigorous analysis. These EPA results are not only based on peer reviewed studies but have also been validated by independent academic studies using different methods that are now in the process of being published.

Additionally, an independent body of scientists that provides advice to EPA — the Scientific Advisory Board — wrote in its draft report that not only was the conductivity study and associated benchmark scientifically rigorous, but that the levels EPA identified for their benchmark are likely not protective enough. We urge EPA to assure that state and federal agencies do not issue permits that are contrary to this clear science and the legal requirements discussed in the guidance.

Another major step the EPA has taken in this guidance is long overdue recognition of the significant cumulative impacts that have already harmed the Appalachian region, where more than 2,000 miles of streams have already been polluted or destroyed and where the watersheds cannot afford to lose more waters, especially unique and vital headwater streams. In light of the widespread destruction already caused by mountaintop removal mining in Appalachia, it is imperative that the EPA finalize this guidance and begin to implement it immediately.

Finally, we strongly urge you, Administrator Jackson, to strengthen this guidance. There is no scientific evidence to support claims of “stream creation,” and it is therefore simply not a viable option to mitigate for stream loss, especially for headwater streams. Any suggestion or statement in the guidance that stream creation is acceptable to compensate for stream losses must be deleted.

Additionally, EPA must also not establish a policy of sequencing its approval of valley fills, because there is no scientific evidence that sequential construction of valley fills avoids the devastating long-term and downstream pollution caused by valley fills. Importantly, both EPA and the Army Corps have the duty up front to prevent significant degradation of waters from happening before any permit is issued. After years of neglect by EPA, Appalachia deserves better than another failed experiment that allows for the damage to start before the impact of the permit is appropriately assessed, in permits that put a local community in limbo while decisions about the future of their waters get made behind closed doors. EPA must veto any valley fills permitted by the Corps unless it is shown prior to permitting that scientifically proven methods to prevent biological impairment exist and will be implemented at a mining site, and that all Clean Water Act requirements will be met. We also strongly encourage EPA to promptly follow the science discussed in this guidance by setting a National Recommended Water Quality Criterion for conductivity for central Appalachia and promulgating the criterion where states fail to do so promptly.

The people of Appalachia have suffered too long from the consequences of harmful regulatory loopholes that allowed the region’s natural waters to be used as waste disposal systems, and from the federal government’s refusal to enforce the Clean Water Act at every step. This guidance represents the bare essential minimum of what the EPA must do to start to address the impacts of mountaintop removal mining.

The EPA must follow the clear science on this issue and finalize and ensure that all permitting agencies fully implement this guidance in the permitting process. We urge the EPA to stand strong against industry pressure that seeks to prevent the EPA from enforcing basic compliance with the Clean Water Act and from exercising its basic oversight authority.

Respectfully,

Liz Garland Deardorff
Associate Director
American Rivers

Rev. Pat Watkins
Executive Director
Caretakers of God's Creation (A United Methodist Ministry of the Virginia Conference)

Kieran Suckling
Executive Director
Center for Biological Diversity

Cathy Edmiston
Chair
Citizens Against Longwall Mining

Aimee Erickson
Executive Director
Citizens Coal Council

Lynn Thorp
National Campaigns Coordinator
Clean Water Action

Debra Jarrell
Assistant Director
Coal River Mountain Watch

Vernon F. Kelley
Chair
Concerned Citizens of Giles County

Mary Beth Beetham
Director of Legislative Affairs
Defenders of Wildlife

Joan Mulhern
Senior Legislative Counsel
Earthjustice

Pamela J. Richart
Co-Director
Eco-Justice Collaborative

Damon Moglen
Director
Climate and Energy Project
Friends of the Earth

Denny Larson
Executive Director
Global Community Monitor

Kyle Ash
Senior Legislative Representative
Greenpeace

Tom FitzGerald
Director
Kentucky Resources Council

Kathleen McNeely
Program Coordinator
Faith Economy Ecology
Maryknoll Office for Global Concerns

Beverly Braverman
Executive Director
Mountain Watershed Association

Jon Devine
Senior Attorney
Water Program
Natural Resources Defense Council

Duff Badgley
Coordinator
No Biomass Burn

Janet Keating
Executive Director
Ohio Valley Environmental Coalition

Tyson Slocum
Director
Energy Program
Public Citizen

Amanda Starbuck
Global Finance Campaign Director
Rainforest Action Network

Ed Hopkins
Director
Environmental Quality Program
Sierra Club

Esmeralda Brown
Executive for UN Affairs
United Methodist Women

Patrick Bond
Professor and Director
Centre for Civil Society Environmental Justice Project
University of KwaZulu-Natal (Durban, South Africa)

Scott Edwards
Director of Advocacy
Waterkeeper Alliance

Hugh Rogers
President
West Virginia Highlands Conservancy

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