EPA Unveils “MIRA”: New Tool For Reviewing Coal-Related §404 “Fill” Permits

          USEPA has authority to “veto” “fill” permits issued by the Corps of Engineers pursuant to Section 404 of the Clean Water Act. Representatives of USEPA met with representatives of the coal industry on July 13, 2009 to discuss USEPA’s new 404 Permit “screening” tool for the coal industry in Central Appalachia. EPA’s MIRA (Multi-Criteria Integrated Resource Assessment) is a tool that it intends to use for winnowing out those proposed Clean Water Act “fill” permits that it will subject to “enhanced” review. USEPA unveiled a PowerPoint that showed a “hierarchical” tool that will look at: the size of the mine; the number of valley fills; the efficiency of the mine design (the amount of coal generated per length of stream filled); and the condition of the watershed in which the mine is proposed. USEPA did not distribute the PowerPoint, but indicated that it might choose to do so later. 

The uses that will be made of the tool are not clear. USEPA’s representatives opened the meeting by saying that the criteria it uses will be used ONLY to screen permits that it will subject to enhanced review, and that any permit “vetoes” will be based on the 404(b)(1) Guidelines. Later, though, other representatives said that the criteria it will use in the MIRA are “essentially the same” as those set out in the 404(b)(1) Guidelines. Despite characterizations of the MIRA as “robust,” “transparent” and “iterative,” USEPA claimed that it has not developed any “thresholds” that will cause one application to undergo enhanced review and another to avoid it. This tool is being developed by Regions 3, 4 and 5 jointly. 

This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.