EPA Clarifies on Coal Mining Permit Review

The U.S. Environmental Protection Agency (www.epa.gov) released a clarification of the actions outlined in two letters it recently sent to the U.S. Army Corps of Engineers (www.usace.army.mil) expressing serious concerns about the need to reduce the potential harmful impacts on water quality caused by certain types of coal mining practices, such as mountaintop mining.

In its clarification, the EPA said it is not halting, holding or placing a moratorium on any of the mining permit applications referred to in its initial letters for the Corps of Engineers, but rather is expressing serious concerns about the need to reduce the potential harmful impacts on water quality. The EPA said it will take a close look at other permits that have been held back because of the 4th Circuit litigation, and it fully anticipates that the bulk of these pending permit applications will not raise environmental concerns. In cases where a permit does raise environmental concerns, the EPA said it will work with the Corps of Engineers to determine how such concerns can be addressed.

According to the EPA, its submission of comments to the Corps of Engineers on draft permits is a well-established procedure under the Clean Water Act to assure that environmental considerations are addressed in the permitting process.

The EPA’s letters to the Corps of Engineers specifically addressed two new surface coal-mining operations in West Virginia and Kentucky, which it believed could have a negative environmental impact on fragile habitats and streams.

The EPA also requested the opportunity to meet with the Corps of Engineers and the mining companies seeking the new permits to discuss alternatives that would better protect streams, wetlands and rivers.

Because of active litigation in the 4th Circuit challenging the issuance of Corps of Engineers permits for coal mining, the Corps has been issuing far fewer permits in West Virginia since the litigation began in 2007. As a result, there is a significant backlog of permits under review by the Corps, and the EPA said it expects to be actively involved in the review of these permits following issuance of the 4th Circuit decision last month.

The EPA issued its clarification statement in response to what it described as mischaracterizations of the actions it detailed in its letters to the Corps of Engineers.