EPA Issues Guidance on Mountaintop Mining

EPA has issued guidance on mountaintop mining that will greatly affect permit issuance for surface coal mines. The most important part of the guidance is EPA's announcement of how it will interpret West Virginia's water quality standards when it is reviewing mining NPDES permits. At the risk of oversimplifying, EPA has taken the position that when streams downstream of valley fills show conductivity of less than 300 microsiemens per centimeter there will be presumed to be no environmental impact, and where the conductivity is greater than 500 uS/cm there will be a presumption that the streams are adversely impacted. For streams between 300 uS/cm and 500 uS/cm, mining permits maybe issued with conditions designed to prevent reaching 500 uS/cm. It will be difficult for any mining operation to avoid exceeding 300 uS/cm, a fact that EPA is well aware of.

The guidance is intended to implement the narrative criteria in the state's water quality standards (47 CSR 2, section 3). Some parts of the water quality standards set numeric limits for particular pollutants that are considered safe for environment; the narrative criteria address those conditions that can't be easily addressed by numeric limits. Things like excessive sedimentation, color, odor, or toxicity are prohibited, terms which are necessarily vague. In this case, EPA is interpreting the narrative water quality standard that prohibits toxicity to fish and benthic organisms.

EPA has promised the guidance for some time, because its threats to veto NPDES permits have caused a great deal of uncertainty for the Appalachian coal mining industry. EPA doesn't write the NPDES permits; West Virginia has been delegated authority to write them. However, EPA has retained authority under the Clean Water Act to review those permits and veto them if they believe the CWA is not being implemented properly. This guidance from EPA is intended to provide a standard for state permit writers to follow if they want to avoid EPA oversight and rejection.

The West Virginia Department of Environmental Protection had already requested, and recently has posted, suggestions from the public on how the narrative standard should be implemented. It was planning on developing its own implementation process in its upcoming triennial review of water quality standards. It will be interesting to see how the state's plan to interpret the narrative criteria will change as a result of this action by EPA.

One of the odder parts of the EPA's action is the fact that the guidance is effective immediately, but there will be a public comment period that will not run the usual 30, 60 or 90 days; comments will be accepted until December, 2010, with a final guidance no later than April 1, 2011. One can only suppose that EPA wanted to keep its guidance in effect on an interim basis as long as possible before having to defend the science of its proposal in its response to comments. If so, it's pretty shameful.

There is also a substantial portion of the guidance that talks about reducing the impact of mining, and requiring significant in-stream monitoring upstream and downstream of the valley fills, both before and after construction of the valley fills. There are also provisions for National Environmental Policy Act review and environmental justice considerations.

Ken Ward has a good summary of the EPA's action from the environmentalist side. You should check his blog for a detailed history of how this all came to be. The Washington Independent had this report, which is representative of the type of national attention given the guidance.