Loyal Coal Tattoo readers will, I hope, forgive me for taking a moment to try to inject a little sanity into the discussion of this week’s U.S. EPA announcement that 79 pending coal-mining permits in four Appalachian states need further review — and perhaps some changes — before they can be granted Clean Water Act permits to bury a total of 170 miles of streams.
There’s been a lot of heat, and very little light, focused on this situation by coal industry officials, coal miners and coalfield political leaders. So let’s take a look at what EPA has said, and continues to say, about what’s wrong with these mining company permit applications.
First, some background. Just a little bit, anyway. If you don’t understand exactly what it is that EPA says mountaintop removal is doing to the Appalachian hills, streams and communities, go read this post — Exclusive: Blockbuster studies detail MTR impacts. And to understand what the coal industry has to say about why it wants to keep surface mining, read this post — Special guest blog exclusive: Why Surface Mine? And more importantly, if you don’t think coal companies can make changes in the way they operate so that environmental damage is avoided or minimized, read this — Exclusive: Patriot Coal says, we can mine it underground.
Now what has EPA done? They’ve done nothing more than try to get back to their required role of being a watchdog under the Clean Water Act, to make sure that the federal Army Corps of Engineers isn’t approving coal industry permit proposals that violate the law.
And while EPA hasn’t been especially good and putting a precise bar up to show the coal industry how much damage is too much, my guess is that the coal industry would be complaining even if EPA did do that. I don’t recall the industry complaining when the Bush administration dropped any consideration of specific limits on valley fill size when it was hijacking the government’s Environmental Impact Statement on mountaintop removal.
Now, as for this week’s EPA action. It’s worth taking a closer look at the letter that EPA assistant adminstrator Peter Silva wrote to Jo-Ellen Darcy, assistant secretary of the Army for civil works (chief of the Corps of Engineers). I’ve posted that letter here. EPA has also recently added to its Web site the final list of permits, a Q and A about how it developed the list, and an Excel file with tons of information on each permit.
EPA outlines in the letter its four major areas of concern about these permits. All are based on the Clean Water Act 404(b)(1) Guidelines, which you can read here. Here’s a summary of the EPA concerns:
1. Avoidance and minimization — EPA believes that the majority of the permit applications … have not yet adequately demonstrated that anticipated adverse environmental and water quality impacts have been fully avoided and minimized. The additional permit reviews, EPA said, “will allow the agencies , in coordination with the mining companies, to evaluate practicable opportunities to, for example, reduce the size and number of valley fills, in order to minimize potential adverse environmental and water quality impacts.”
2. Water quality – More than 80 percent of the permit proposals “exhibited the potential to cause or contribute to violations of applicable water quality standards.” EPA said it is “eager to work with the Corps and companies to assess modifications to mining plans, include additional water quality and biological monitoring provisions, and take other appropriate steps to address anticipated water quality concerns associated with these projects.”
3. Cumulative impacts — The Clean Water Act and the National Environmental Policy Act require consideration of all direct, indirect and cumulative environmental impacts associated with proposed coal mining projects. In order to fully assess potential cumulative impacts, permit applications must take into account “environmental and water quality effects associated with past, present and reasonably foreseeable surface coal mining activities within a watershed.” EPA is concerned “that additional information regarding potential cumulative impacts is needed to effectively assess” the permits on EPA’s list.
4. Mitigation — Headwater streams are vital components of watersheds. They provide critical ecological functions necessary for the health and productivity of downstream systems. EPA believes additional evaluation of the 79 permits is needed “to assess the effectiveness of existing mitigation plans to compensate for anticipated loss of functions associated with the proposed mining-related burial and mine through of headwater streams.”
West Virginia Gov. Joe Manchin told MetroNews this week that he has given up hope that EPA is trying to make mining more environmentally friendly. The Obama administration, the governor says, is out to stop all strip mining:
I was hoping they were looking for a better way and a better use that we could all agree upon. But that’s not their actions and that’s not what I see.
That’s not what EPA says … As Silva emphasized in his letter:
I look forward to working closely with the Army Corps of Engineers, with the involvement of the mining companies, to achieve a resolution of EPA’s concerns that avoids harmful environmental impacts and meets our energy and economic needs.
And even Congressman Rahall — certainly no opponent of mountaintop removal — said this week that EPA is just doing its job:
“And I think that is being fair to coalfield residents and to the industry.”
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Wait a minute! You’re just providing cover for Congressman Rahall, who is either sadly misinformed or just dissembling in order to curry favor with the bi-coastal powers in the House. In fact, EPA is NOT just doing its job–it actively participating in an illegal scheme to re-open permit applications it has already reviewed.
The Corps’ regulations require the Corps to process its applications in 60 days , subject to a few exceptions that don’t apply here. During that period, the Corps provides public notice of an application and provides EPA with its own copy of the notice.
Both EPA and the public must provide their comments during the public comment period and the Corps must issue or deny the permit within the 60 day period.
The 79 permit applications at issue all already underwent the public notice process prior to March 31, 2009 according to the government’s “Enhanced Surface Coal Mining Pending Permit Coordination Procedures” memo of June 11, 2009–thus EPA had an opportunity to comment on all 79 applications long ago and the Corps’ 60 day time frame for making a permit decision has already come and gone.
So, what has really happened is that EPA and the CEQ have leaned on the Corps, and together those agencies entered into a Memorandum of Understanding by which the EPA gets a “do over” because the current folks in power at EPA disagree with the decisions that their predecessors made. For the coal industry, this is a lot like dealing with petty third world dictators–you can trust the decisions of the regime only so long as it’s in power.
You can disagree with the decisions of the past, but EPA’s efforts to revisit decisions it already made in this fashion is illegal and casts doubt on the legitimacy of the executive branch. I expect more from Rahall and EPA–well at least from Rahall.
How, exactly, does NEPA apply to these permit decisions? I’ve worked on US Forest Service projects where biological inventories were conducted as part of the NEPA review process. For MTR, it’s my understanding that this only occurs for plants and animals listed under the ESA.
“Exclusive: Patriot Coal says, we can mine it underground.”
Patriot will never walk away from MTR permits. They may sit on them for a while and increase production underground. At some point, they will be mined.
“COAL TATTOO Mining’s Mark on our World”
How about talking about some of the good things mining has provided?
Jason,
NEPA applies because the Corps is issuing a federal permit.
There is some discussion of this in this 4th Circuit decision, beginning on page 21,
http://wvgazette.com/static/ken/ohvecdecision.pdf
Ken.
Thanks Ken for shedding light on the confusion of this past week.
I have a question. How does the EPA action cast doubt on the legitimacy of the executive branch?
[...] Blogs @ The Charleston Gazette – » EPA and MTR: Here’s what’s wrong with the permits blogs.wvgazette.com – view page – cached Loyal Coal Tattoo readers will, I hope, forgive me for taking a moment to try to inject a little sanity into the discussion of this week’s U.S. EPA announcement that 79 pending coal-mining permits… (Read more)Loyal Coal Tattoo readers will, I hope, forgive me for taking a moment to try to inject a little sanity into the discussion of this week’s U.S. EPA announcement that 79 pending coal-mining permits in four Appalachian states need further review — and perhaps some changes — before they can be granted Clean Water Act permits to bury a total of 170 miles of streams. (Read less) — From the page [...]
“EPA gets a “do over” because the current folks in power at EPA disagree with the decisions that their predecessors made. ”
From my understanding, there has been hardly any change at the EPA aside from a new director? Lisa Jackson and perhaps some other high level positions. Most of the people that I know of from EPA were there during the previous administration. An administration, I might add, that was “hijacking the government’s Environmental Impact Statement on mountaintop removal”. Could it not be that the change in the administration only allowed some of the science to come to light?
Ken,
Thanks for the post. I reviewed the materials you posted from the EPA website on the permits. Do you have any idea on what the Excel sheet data means? Its not readily evident what any of this information means in terms of EPA’s concerns on any of the 79 permits. It’s almost like they built a “permit-trap” that only they understand how it works.
Your earlier post on Patriot Coal that you reference here seems to imply that Patriot said they can mine the reserves they have proposed for surface mining through underground mining. Maybe I am reading your post incorrectly. But when I read the Patriot statements it appears that they are saying is that they have “other” reserves they can underground mine–not that they can change mining methods from surface to underground on the same reserve. Most large companies have some diversity in reserves so they can source coal from another mine to serve their customers, but that flexibility runs out when more of your options (surface mineable coal) is taken off the table.
The Rahall statements in the story you reference are a bit odd. On the one hand he touts the coal companies’ past performance in reclaiming the lands–”It can be restored and years later you will never notice the difference . . .WV has been a leader.” If that is the case, then how does he explain or condone EPA’s actions to stop the companies from continuing to mine and reclaim the land to all the “post-mining accomplishments” he mentions? Equally odd is his statement that the delay in permits didn’t take the industry by surprise and they knew more than a year ago this was going to happen. Does he mean that coal companies knew before President Obama was elected that this process would take such a nasty turn for them? It would be interesting to hear from folks in the coal industy whether and how they knew this was all coming “more than a year ago.”
“The Corps’ regulations require the Corps to process its applications in 60 days , subject to a few exceptions that don’t apply here. During that period, the Corps provides public notice of an application and provides EPA with its own copy of the notice.”
The Corps in Kentucky has held up and continues to hold up permits until a cumulative impact assessment is completed and finalized in several HUC-8 watersheds of concern. The only one completed and finalized, and where permits are allowed to go forward is in the Middle Fork Kentucky River HUC. Thats the result of litigation and perhaps an exception to the 60-day rule. The EPA is not gettting a “do-over” in this case with Kentucky permits…it is merely taking a closer look at the permits within the backlog of permits in Kentucky until the Corps can issue them. That’s the reason for the Enhanced Cooridation Process.
Does the environment get a “do-over” when a company proceeds without a proper Section 404 permit? Nope. Unfortunately, several of the 79 are just that…self reported violations whereupon the company responsible for destroying the streams in their way are lightly fined if at all. Restoration and reclamation may be a “do-over” for the environment but a pile of rubble with grass and autumn olive are hardly a forested mountain landscape.
Lisa Jackson was on Bill Mahr’s show this weekend. She was quite clear that they were trying to fix all the nonsense that has happened in the last 8 years.
Thanks Ken: The links and posts that you include help people to understand what is going on. If we bother to research instead of just reacting we all can be more reasonable in a situation that is very difficult for all of us. This EPA has, from the beginning has said its decisions will be based on science. If the science proves that this practice is causing permanent damage to our waterways. how can any parent or grandparent continue to participate. We all have a responsibility to leave this place better than we found it for those that come after us. Try to think of someone you love drinking contaminated water without knowing until it is too late. Try to relate to the people in Prenter and Rawl and don’t think this cannot impact your life. The destruction of water quality will eventually find us all.
Anyone see 60 Minutes last night? Excellent coverage on ash ponds. Hopefully it will get the ball rolling on fixing these problems. Naturally the tragedy had to be in a more recognized state, but non the less it’s out in the open more.
Coal Ash: 130 Million Tons of Waste (60 Minutes, 10/4/09)
http://www.cbsnews.com/video/watch/?id=5362297n
(13:26 minutes)
If coal ash is safe to spread under a golf course or be used in carpets, why are the residents a Tennessee town being told to stay out of a river where the material was spilled? Lesley Stahl reports.
—
Plundering Appalachia
The Tragedy of Mountaintop-Removal Coal Mining
http://www.youtube.com/watch?v=VoOIB3_7bzU
(10:07 minutes)
Plundering Appalachia:
The Tragedy of Mountaintop-Removal Mining
Paperback: 228 pages
Earth Aware Editions (September 29, 2009)
http://www.plunderingappalachia.org/
http://www.amazon.com/dp/1601090501
…page after page of scarred mountains, sludge ponds, dust-caked buildings and water so dirty that it is red, orange or even black.
http://www.kentucky.com/news/local/story/964380.html
…the first coffee table book for Appalachian environmentists. The photography is stunning, filling the giant pages with some of the best Appalachian photography I have ever seen, some positive, some horrible.
http://thegazz.com/gblogs/wvfilm/2009/09/02/
Thanks Ken for continuing to keep an eye on this repugnant form of coal ming. BTW, when are you coming out to Grant County to do some trout fishing?
Ain’t it a shame that the U.S. EPA has to step in and protect West Virginians from theirselves. Our great Governor could care less about the good people of WV that live in the valleys and up these hollows where MTR mining is being permitted to destroy not only these folks homes and land, but also to destroy their drinking water to.
Governor manchin should try and drive up some of these roads where MTR mining has destroyed, and caused flooding. Talk to these people, and explain to them why mountaintop removal mining is more important than these folks homes and water.
Someday the coal operators will leave WV when they have ruined all the mountains, and leave behind all their destruction of the mountains which will not even be fit for snakes to inhabit.
Go mr. manchin to Washington, DC and tell obama to put a chain on EPA’s review of these permits. President Obama’s door is open to our great governor, and he will surely listen to his whining about what EPA is doing to this great State of WV.