The Environmental Protection Agency this week issued a final Guidance document directing Appalachian States and the U.S. Army Corps of Engineers to account for saline effluent when they issue Clean Water Act permits to surface mining projects, including so-called mountaintop removal mines. The EPA set the regulatory threshold for salinity “pollution” so low that EPA Administrator Lisa Jackson has said that “no or very few [surface mines] are going to meet this standard.” Obviously, this will have a severe negative impact on the Appalachian coal industry. EPA’s justification for the Guidance is to protect a short-lived insect that isn’t an endangered species.
Surface coal mining in Appalachia, which is sanctioned by the 1977 Surface Mining Control and Reclamation Act, is loathed by the President’s environmentalist base, but it is essential for the industry’s competitiveness. Since June 2009, the EPA has used precursor documents to the final Guidance to review permitting decisions made by Appalachian States and the U.S. Army Corps of Engineers. These EPA actions effectively created a “permitorium” on new mountaintop mines. On January 13 2011, the EPA went so far as to veto a Clean Water Act permit that had already been issued to Arch Coal for the Spruce No. 1 Mine in Logan County, West Virginia. It was the first time the EPA ever used this authority to veto a Clean Water Act permit that had been issued to a surface coal mine.
One day later, a federal district court in Washington, D.C. issued a ruling in which it indicated that the EPA likely violated the Administrative Procedures Act by failing to follow the proper procedural steps before it substantively altered the Clean Water Act permitting regime for surface coal mining projects in Appalachia. The Court is scheduled to take up this matter in October.