The Obama Administration released a series of new policy documents on June 11, 2009 describing how surface coal mining will be regulated and permitted in Appalachia. These documents were also described in a conference call that the Administration conducted for the press (a transcript of the call is attached). Represented on the call were Nancy Sutley, Chair of the Council on Environmental Quality (CEQ); Bob Sussman, Senior Policy Counsel for the Environmental Protection Agency (EPA); David Hayes, Deputy Secretary of the Department of the Interior (DOI); and Terrence “Rock” Salt, Acting Assistant Secretary (Civil Works) for the Corps of Engineers (Corps). They characterized the Administration’s actions as designed to significantly reduce the “harmful environmental consequences of Appalachian surface coal mining operations, while ensuring that future mining remains consistent with federal law.”
Among the documents released is a Memorandum of Understanding (MOU) signed by EPA, DOI and the Corps that outlines both short- and long-term policy changes affecting “Appalachian surface coal mining,” defined as mining techniques requiring permits under the Surface Mining Control and Reclamation Act (SMCRA) and § 404 of the Clean Water Act (CWA) in the states of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia. A copy of the MOU is at http://www.jacksonkelly.com/jk/pdf/Final%20MTM%20MOU.PDF.
The Administration also released other documents describing a procedure for enhanced review of procedures for 108 Clean Water Act § 404 permits that are currently under review by EPA and the Corps. One document lists the new procedures, and the other is a letter from EPA Administrator Lisa Jackson to the Corps listing the criteria that EPA will rely on for objecting to new permits. A copy of the EPA letter can be found here:
http://www.jacksonkelly.com/jk/pdf/Final%20EPA%20MTM%20letter%20to%20Army.pdf
and the procedures document here:
http://www.jacksonkelly.com/jk/pdf/EPA-Corps%20MTM%20Permit%20Coordination%20Procedures.pdf
EPA’s Sussman emphasized that the 42 permits already approved by the agency will not be revisited and will not be subject to the new review procedures.
The following is a brief summary of some of the major items contained in the MOU:
Short Term Actions under the Clean Water Act
(1) Corps will issue a public notice within 30 days proposing to modify Nationwide Permit 21 to preclude its use in the Appalachian Region and seek public comment on the proposed action;
(2) EPA, Corps, and the Fish & Wildlife Service (FWS) will develop guidance to “strengthen” the CWA § 401(b)(1) Guidelines;
(3) EPA will improve and strengthen oversight of CWA 402 permits and water quality certifications under CWA § 401 ;
(4) Corps and EPA, in consultation with FWS, will jointly issue guidance on how impacts to streams should be evaluated and how mitigation projects should be evaluated to compensate for losses of waters of the United States; and
(5) EPA, in coordination with the Corps, will clarify the applicability of the CWA waste treatment exemption for treatment facilities constructed in waters of the United States to minimize temporary impacts of mining operations on streams.
Short Term Actions under SMCRA
(1) The 1983 current stream buffer zone (SBZ) rule was never intended to prohibit valley fills, but in 1999 a federal district court relied on it to prohibit new fills. In 2008, OSM revised the rule to make clear that it does not prohibit fills. Anti-mining activists challenged the new rule in federal district court in Washington, D.C. and have claimed it suffers from a procedural defect. The Interior Department has AGREED with plaintiffs and have asked the court to vacate the new rule. OSM now claims that it wants to return to the 1983 SBZ rule and issue “guidance” clarifying the application of the 1983 SBZ rule provisions to further reduce stream impacts;
(2) OSM will reevaluate its oversight of state permitting, state enforcement and regulatory activities under SMCRA; and
(3) OSM will remove impediments to its ability to require correction of permit defects in SMCRA primacy states.
The MOU also includes the following long terms actions under both SMCRA and the CWA:
Long Term Actions
(1) New rulemakings under SMCRA, including the SBZ rule, and Approximate Original Contour (AOC) requirements;
(2) Elimination of NWP 21 in connection with surface coal mining in the Appalachian Region in 2012; and
(3) Revisions to how surface coal mining activities are evaluated, authorized and regulated under the CWA.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.
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