EPA chief offers to control water permits for surface mines

By Steve Korris | Jul 28, 2011


WASHINGTON – Environmental secretary Lisa Jackson has volunteered to multiply and control water quality permits for surface coal mines in six Appalachian states.

Her assistants released "final guidance" on the Environmental Protection Agency's role on July 21, declaring that "it is not a rule, and hence it is not binding and lacks the force of law."

Water administrator Nancy Stoner and compliance administrator Cynthia Giles wrote, "It does not impose any obligations on private parties."

They wrote, "This guidance does not establish new, mandatory requirements that must be incorporated into a particular permit."

They wrote, "Rather, it provides information about practices and approaches that can help ensure that a permit is consistent with existing legal requirements."

They wrote, "EPA is not establishing a water quality standard."

They expressed hope that final guidance would reduce the likelihood of judicial challenges.

Jackson's previous "interim guidance" had drawn lawsuits from West Virginia environmental secretary Randy Huffman, the National Mining Association, and others.

The suits remain pending before U.S. District Judge Reggie Walton in Washington.

Under the Clean Water Act, an operator must obtain a permit from state regulators, the Army Corps of Engineers, or both.

The Act employs EPA in a backstop role, to prevent errors by the Corps and the states.

Jackson's interim guidance introduced "enhanced coordination," a policy that injected EPA into decisions of operators, states, and the Corps.

Although her assistants loaded her final guidance with disclaimers and softened the title to "effective coordination," control remains her goal.

Stoner and Giles recommended a ban on permits that cover two or more valley fills.

"Valley fills associated with a project should generally be constructed one at a time," they wrote.

"The permittee should demonstrate to the satisfaction of the permitting authority that water quality has been protected and that significant degradation has not occurred as a result of each valley fill before the permittee may begin construction of subsequent valley fills," they wrote.

For each valley fill, they recommended setting a threshold quality value and requiring a remedial action plan if an operator crosses it.

They recommended that if an operator crossed a second threshold, an operator couldn't construct another valley fill until it carried out a remedy.

They recommended serious consideration of environmental impact statements for projects involving more than a mile of stream loss or more than one valley fill.

They recommended circulation of draft environmental assessments for public comment.

They recommended that operators estimate characteristics of discharges they propose.

"Even though valley fills, impoundments, and sediment ponds would be constructed before data from actual discharges would be available, other data, such as data from similar activities at nearby mines, are most likely available to characterize these discharges," they wrote.

Writing that the Act allows degradation of high quality water if necessary for "important economic or social development," they proposed to change the meaning of the words.

"Before a lowering of water quality is allowed, an alternatives analysis should be undertaken to evaluate whether the proposed discharge is necessary," they wrote.

They recommended that regional offices "encourage states to take into account environmental justice considerations."

They wrote, "For example, when considering the social and economic benefits compared to environmental costs, the potential effects that should be considered include, in addition to job creation and other economic benefits; potential loss of assimilative capacity; negative impacts to fishing, recreation, and tourism; health impacts; and impacts to the societal value of environmental quality."

They recommended requiring operators to mitigate damage from past mining activities that federal or state regulations might not specifically address.

They recommended that operators identify species down to the tiniest, and capture a photographic record of their habitat.

Jackson's coordination policy covers West Virginia, Virginia, Pennsylvania, Ohio, North Carolina and Tennessee.

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