Energy and Environment MonitorFor months, many in the industry have wondered how a new administration in the White House would impact coal—especially given the reports of negative statements by both candidates towards mountain top removal while on the campaign trail. After the new administration’s first 100 days, one thing appears likely: EPA will begin taking a more active role in the issuance of Clean Water Act (“CWA”) §404 dredge and fill permits, which are a necessary component of surface mining operations. But what is the basis for EPA’s recent involvement in the 404 permitting process?
Section 404 permits are an integral component of surface mining operations. Surface mining of coal consists generally of a sequence of operations. First, the land is cleared and topsoil is removed and either redistributed or segregated for later re-use. The rock overlying the coal, known as “overburden,” is then typically drilled and fractured by blasting to allow its removal. At this point, the overburden, known also as “spoil,” is removed by earth-moving equipment such as loaders, draglines and shovels. Then, the exposed coal seam is excavated and, except where variances are granted, the spoil is returned by “backfilling” and “grading” to cover the area from which the coal was removed to restore it to its approximate original contour.
The placement of excess “spoil” in the uppermost reaches of valleys in “valley fills” inevitably requires a Clean Water Act ("CWA") §404 permit because the fills intrude on small drainages that technically qualify as "navigable waters" under the CWA.. Although EPA is generally charged with securing the goals of the CWA, the Army Corps of Engineers is given the responsibility of permitting the “discharge of dredged or fill material” into the “navigable waters” of the U.S. The EPA’s current involvement in numerous surface mine permits arises from section 404(c) of the CWA (33 U.S.C. 1344(c)), which charges the EPA with oversight of the Corps’ execution of the program and grants it the authority to veto Corps permits that the EPA finds inconsistent with the stated goals of the CWA.
Specifically, §404(c) provides that, where EPA determines, after notice and opportunity for public hearing, that “unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas will result from the discharge of dredged or fill material into waters of the United States,” the Agency may exercise its authority to prohibit the specification of any defined area as a disposal site, or restrict or deny the use of any defined area for specification as a disposal site for the discharge of dredged or fill material. EPA’s authority extends to the withdrawal of authority to fill granted by existing §404 permits. EPA has only exercised its veto authority twelve times through 2008. See http://www.epa.gov/owow/wetlands/pdf/404c.pdf. Since January 20, 2009, EPA has, however, issued multiple letters threatening the initiation of veto proceedings against pending applications for valley fill permits in West Virginia and Kentucky, and in the case of one permit has actually initiated those proceedings. The outstanding objection letters focus generally on three issues: 1) claims that loss of mayflies due to elevated conductivity violates State water quality standards; 2) fill minimization; and 3) whether the mitigation measures proposed by the mine operators are sufficient.
It remains to be seen whether EPA will actually veto these permits or is simply posturing to require changes to them. Once thing remains certain, though, permits will be harder to obtain.
This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.
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