EPA Expresses Concerns Over Issuance of Authorizations For Dumping Mine Fill Material in Headwater Streams. Posted: March 25, 2009
Many of you have read or heard the AP report that EPA had acted on March 23 to "put on hold hundreds of mountaintop coal-mining permits."
I'm writing to clarify what actually happened. The Regional Administrators of EPA Region III (Philadelphia) and Region IV (Atlanta) sent letters to Col. Dana Hurst of the U.S. Army Corps of Engineers Huntington District, expressing grave concerns with the proposal to issue authorizations to CAM Mining in Kentucky and Highland Mining in West Virginia, allowing the dumping of mined rock (spoil) into valley fills affecting headwater streams.
The letters certainly signal a reengagement by EPA in overseeing the implementation by the Corps of Engineers of the "Section 404(b)(1) guidelines," which are regulations that require any proposal to place fill material in a "water of the united states" to demonstrate that the action had been avoided to the extent practicable, had been minimized if not avoidable, and any losses to the aquatic system had been mitigated. EPA expressed concern that the permitted impacts had not been sufficiently minimized and that issuance of a surface mining permit was not a surrogate for proper Corps review (repudiating what had been long-standing EPA acquiescence to the Corps' practice of issuance of a nationwide 404 permit for all mining operations simply because they had obtained a mining permit.
The EPA action signaled that it would likely exercise veto authority over the West Virginia permit if it was not substantially revised, and while the letter on the Kentucky mining operation did not state so explicitly, the assumption was that it would do likewise absent significant revisions.
EPA did not put on hold any permits, but has signaled that the new administration will more rigorously apply existing regulatory tools under the Clean Water Act to minimize the footprint of mining operations on water resources. It is a step, not an endpoint. What is needed now is for the Obama Administration to move promptly to install a Director at the federal Office of Surface Mining who will work in conjunction with EPA Administrator Jackson to lessen the heavy footprint of mining on the land and water resources of the coalfields.