EPA Coal Review Causes Anger And Confusion

VANCOUVER — The laissez-faire days of the U. S. Environmental Protection Agency’s (EPA) role in permitting valley fills related to mountaintop coal mining may be over.

The agency has threatened to use its veto power over a water permit on a West Virginian coal project — a power it has never exercised on a mining project and one that until March of last year, had gone unused for almost two decades.

The EPA caused a hubbub in U. S. mining circles on March 24, after it issued a press release touting its action to reduce harmful effects from coal mining. In the release, the EPA said it had sent two letters to the U. S. Army Engineer Corps, which typically has authority over water permits, each raising concerns over a specific proposed valley fill.

The EPA also said it planned to review hundreds of other valley fill projects that had been held up in an appeals court.

In one letter to the Corps, the EPA went so far as to say that it was willing to exercise a rarely used veto power under the Clean Water Act (CWA), section 404(c).

Addressing Highland Mining’s plans to cover 4.3 km of streams with overburden from the Reylas surface mine in West Virginia, director of the EPA’s environmental assessment and innovation division, John R. Pomponio, wrote that the design as proposed would have effects “not easily mitigated or removed from stream channels.”

Pomponio not only recommended denial of the permit as it was proposed, but said it had a good chance of getting vetoed — or as he put it: “we find that the extensive cumulative and other impacts give this proposed project high potential as a candidate for a 404(c) action.”

The EPA’s sabre-rattling didn’t sit well with the U. S. National Mining Association (NMA).

The NMA announced that the EPA actions amounted to “halting” and placing on “hold” mining permits throughout the multi-state Appalachian region, where mountaintop coal mining and concomitant valley fills are common practice and often approved by the Corps.

In a statement, NMA president and CEO Hal Quinn said: “Jeopardizing coal mining activity throughout Appalachia will put more than 77,000 high-wage mining jobs at risk at a time when our nation is already battered by a deepening recession.”

Following the NMA’s news release and headlines in newspapers echoing the terms “halt” and “hold,” the EPA shot back in a press release.

Adora Andy, EPA press secretary, said the agency “is not halting, holding, or placing a moratorium on any of the mining permit applications. Plain and simple.”

She noted the EPA had only issued comments on two projects and that this “is a well-established procedure under the Clean Water Act to assure that environmental considerations are addressed in the permitting process.” She said most of the other hundreds of permits to be considered will likely meet EPA approval.

Some media sources and nongovernmental organizations have described the threat of veto as the end to the allegedly coal-friendly Bush-era EPA.

For instance, the Associated Press reported that the EPA’s assertion of CWA 404 (c) authority was “a break from Bush-administration policies.”

Likewise, the Sierra Club of America called it a first step in the “complex effort” to stop mountaintop coal mining, “something the Bush EPA never did.”

In fact, however, if the EPA uses its veto power over valley fills it would be a first under any administration in the 30 years since the CWA veto has existed and would mark a historically unprecedented shift in terms of how closely the EPA monitors mountaintop mining valley fills.

According to the EPA, it has used its veto power 12 times since 1979. Of those, 11 occurred between 1980 and 1990, largely during the tenure of Republican president Ronald Reagan.

Then, after an 18-year hiatus, the EPA handed out its twelfth veto in March 2008, while former president George W. Bush was still in power. It concerned construction of a water pumping station in the Yazoo River basin, in Mississippi.

None of the 12 vetoes related to coal mining valley fills.

At presstime, questions submitted to the EPA had not been answered.