EPA Requires Additional Review of Mountaintop Mining Permits

EPA Regions 3 and 4, two of the Regions where most mountaintop mining takes place, have sent letters (here for Region 3, here for Region 4) to the Huntington Corps of Engineers raising concerns about stream impacts caused by two mountaintop mines in Kentucky and West Virginia , and asking to confer with the Corps about the Section 404 permits for those mines. This has garnered lots of media attention, because it signals a stricter scrutiny that will be given to mountaintop mining under the Obama Administration.



In order to reach and remove coal, miners remove overburden (the rock and dirt covering the coal) and place it out of the way, often in the headwaters of streams that flow from the mining area. Clean Water Act Section 404 permits are required for this sort of discharge of fill material into waters of the United States. The Corps of Engineers is responsible for issuing 404 permits, and in the case of mountaintop mining 404 permit applications, does so after evaluating the effects of the fill on the streams farther downstream, and requiring mitigation (repair or replacement) of the streams that are filled. While the Corps has authority to issue the 404 permits, EPA has the right to review the permits and deny authorization for the permit if it believes it will have an unacceptable adverse effect on the environment. First, though, it has to ask the Corps for a conference, and that is what these letters do.

The letters are not permit denials, but that is clearly where EPA is headed. EPA has cited a number of reasons for believing the Corps did not do an adequate job in evaluating the environmental effects of the valley fills that are allowed by the 404 permits it has proposed issuing for the 2 mines in question, and EPA will likely deny the permits unless the Corps agrees to reevaluate the projects.



It's going to be much tougher to mountaintop mine if EPA requires the same analysis for all 404 permits that it is requiring for these 2. For those of you concerned about mountaintop mining, your patience has been rewarded and the Obama Administration is fulfilling its expectations. For those of you whose county and state governments rely heavily on severance taxes in order to pay wages and fund programs, this could be a big blow.



You will find plenty written about this in the blogosphere today, including this summary from EPA, this from enewsUSA, this from the New York Times, and this from MSNBC, which notes the decision of the Fourth Circuit last month that allowed issuance of 404 permits without the sort of review that EPA is demanding. The 4th Circuit said that a more detailed review was not required under Corps regulations, but EPA has the authority to require a further review independent of Corps guidelines.