Senator Joe Manchin Wants to Tie the Hands of the EPA by Reintroducing the EPA Fair Play Act

Earlier this week the U.S. District Court of Appeals handed West Virginia and the environment a victory when they ruled that the EPA could withdraw a previously approved Clean Water Act permit for the Spruce Mine No. 1, a permit for the largest such mine operation to be performed in West Virginia.

            In an unsurprising political move, West Virginia’s Democratic Senator Joe Manchin reintroduced the EPA Fair Play Act, Senate Bill 272. The summary of the bill reads thus:

EPA Fair Play Act - Amends the Federal Water Pollution Control Act (commonly known as the Clean Water Act) to remove the authority of the Administrator of the Environmental Protection Agency (EPA) to prohibit the specification of any defined area as a disposal site for discharges of materials into waters of the United States, or to restrict the use of any defined area for specification as a disposal site, once the Secretary of the Army has issued a permit for dredged or fill material.

To understand what is going on here, a little background on mountaintop removal is needed. Under the Clean Water Act, the Army Corps of Engineers is granted the authority to issue permits allowing for the discharge of pollutants or the placement of dredge and fill material into our nation’s waterways. Permits under section 404 of the Clean Water Act—intended to be used to allow the use of fill or dredge for the construction of levees, bridges, or other structures in or around water—are generally easier to get than 402 permits, which control the discharge of pollutants into lakes and streams. A court ruling that goes back over a decade established that the Corps can allow mountaintop removal operations to fill in valleys and streams with their waste material under 404 permits, as though these valleys and streams were somehow construction sites instead of dumping grounds.

            The ruling this week stated that the Administrator of the EPA has the authority “to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site “whenever he determines” the discharge will have an “unacceptable adverse effect” on identified environmental resources.” That is, the EPA, even though the Army Corps of Engineers has granted a 404 permit, can still determine that a valley fill would pollute or otherwise harm the environment and revoke the permit.

            So the EPA Fair Play Act would tie the hands of the EPA. No matter how bad a valley fill or other disposal of overburden might be, once the Corps issued a 404 permit, the EPA could do nothing to protect our rivers and streams.

            It is unsurprising that Joe Manchin, a strong supporter of the mining industry, would reintroduce this measure. West Virginia’s other Senator, Jay Rockefeller, supports the bill. He has at times stood his ground against King Coal, but in more recent years has grown friendlier to the industry. I imagine that this bill could get a lot of support in Congress, passing the Senate and House. We can hope that it receives a veto from president Obama.

New Research Shows Irreversible Ecological Damage From Mountaintop Removal

“In many ways, this has been a disappointing effort.” With those words President Jimmy Carter summed up his feelings when he signed the Surface Mining Control and Reclamation Act (SMCRA) in 1977. Congress had passed two previous bills with better protections for the environment, but both had been vetoed by Gerald Ford while he occupied the White House. Carter felt that, owing to the influence of the coal companies that the law was designed to regulate, the legislation he signed that day had weaker provisions than the bills that received Ford’s veto. Carter’s greatest objection to the new law was that it allowed mining companies to blow up and remove entire mountains. We now call this mining process mountaintop removal.[i]

            In the 35 years since the passing of SMCRA, we have seen that Carter was correct to have his misgivings. This past week a group of scientists at a conference of the Ecological Society of American provided some of the first ecological scientific findings on mountaintop removal. The research sadly shows that the harm done to the ecosystems of Appalachia is irreversible. The damage that these scientists have found goes beyond the blown up mountains, from altered stream flows and flooding to reductions in bird populations.

            With mines so large that you can see them from space, it makes sense that there would be extensive ecological damage. Some of the scientists at the conference called for a moratorium on mountaintop mining to stem the damage. So far, the Obama administration has shown some inclination to give greater regulatory review of this destructive mining practice, but a moratorium seems quite unlikely.

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[i] “Carter Signs Strip-Mining Bill,” New York Times, 4 August 1977

Is It Time For West Virginia's DEP To Start Doing Its Job?

In a 13-page letter, a group of environmental organizations—the West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition, and the West Virginia chapter of the Sierra Club—has given the EPA 60 days’ notice demanding that the agency reject as inadequate a list of polluted streams that West Virginia’s Department of Environmental Protection (DEP) recently submitted to the EPA or face a lawsuit. Something like this should have happened long ago. As far as West Virginia and mountaintop removal go, things have been out of whack for a long time.

The law that governs mountaintop removal, the Surface Mining Control and Reclamation Act (SMCRA), gives to the states the responsibility of issuing permits for mountaintop removal mining. In West Virginia, the DEP issues these permits. Way back in 1997, in the pages of US News and World Report, Penny Loeb first shined the national spotlight on Appalachian mountaintop removal. Even back then she said that the, “DEP's regulations are outdated, its enforcement muscle is puny, and it is constantly reacting to problems rather than heading them off.”

            Whenever the DEP has stepped in to “enforce” the law, most of the time the fines are very low, even for the most serious of violations. The average fine is about $800 per incident. Nearly 80 percent of the fines were reduced after mining companies protested their fines.

            Over 20 years ago, in an investigative report, Charleston Gazette reporter Ken Ward found that the West Virginia DEP did not know the amount of land of the Mountain State the had been permitted for mountaintop removal. The DEP did not even track the number of permits that it granted for mountaintop removal. Ward also found that one third of the acres to be mined by MTR in West Virginia were designated to be reclaimed for “fish and wildlife habitat,” a use that is not allowed under SMCRA.

In this latest development, the West Virginia Legislature, in a bow to the coal companies, passed weaker water quality standards last year. Instead of following protocol and submitting the new standards to the EPA for consideration, the group’s letter says that the DEP “has defiantly taken the indefensible position that [the new standards are] not a revision.” In the Kafkaesque world of West Virginia and coal, West Virginia’s DEP is saying that a revision to the rules is not a revision to the rules, even when the rules change.

The environmental groups contend in their letter that the EPA has the duty to ensure that state agencies properly perform their functions and do not abuse their powers. The group also contends that for the EPA to allow West Virginia to operate as it has gives a clear message to regulators and coal companies that they can continue to disregard our nation’s laws “without consequence.” They urge the agency to intervene in the case of West Virginia or otherwise be subjected to their lawsuit.

I cheer the West Virginia Sierra Club, the West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition, and their latest efforts. It is high time that the rule of law apply to the state of West Virginia and its mining companies.

Good News For Appalachia

I have voiced my reservations about the Obama administration’s record on the environment. So it’s heartening to have some good news coming out of Washington. The EPA is appealing a ruling by a District Court judge over the permitting of a huge mountaintop removal mine in West Virginia. This is great news for Appalachia and the rest of our country.

            The mine, which had been permitted by the Army Corps of Engineers, would bury about seven miles of streams near the historic town of Blair, West Virginia. The Corps has been the department issuing mountaintop removal permits since the establishment of the Surface Mine Control and Reclamation Act, the legislation that controls mountaintop removal and other surface mining operations, in the late seventies. The EPA is stepping up to the plate here and, in my opinion, doing the job that it should have been doing all along in the case of this horrendous mining practice: protecting the streams and fresh waters of this country.

            In their move to revoke the permit, the EPA said the proposed mine would use “destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and the clean water on which they depend.” I think every mountaintop mine fits that description, so in many ways this move by the EPA is a day late and a dollar short for around 500 mine sites in Appalachia.

            But good news for the environment is so rare, so I am thankful for this recent development. Kudos to the EPA and the Obama administration.