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September 11, 2009

EPA: Pending Mountaintop Removal Permits Would Violate Clean Water Act

This post co-written by Mary Anne Hitt, Deputy Director of the Sierra Club’s Beyond Coal Campaign

Very big news out of the Environmental Protection Agency (EPA) this morning – the agency has determined that all 79 mountaintop removal mining permits submitted to them for review by the Army Corps of Engineers would violate the Clean Water Act. After eight long years of rubber-stamp permits being issued during the Bush Administration, this is one of the most dramatic and encouraging actions yet by the Obama Administration, and marks a welcome return of the rule of law to the coalfields of Appalachia.

Mountaintop removal – a devastating form of coal mining that involves blowing up mountains and dumping the former mountaintops into neighboring valleys, burying streams – is governed by a patchwork of laws and federal agencies. Permits to bury streams with mining waste are initially issued by the Army Corps of Engineers, but EPA has ultimate oversight and may veto Corps-issued permits if they fail to comply with the Clean Water Act. 

During the Bush Administration, EPA never opposed or challenged a permit, despite the fact that they clearly violated laws on the books to protect clean water and public health. Apparently, those days are over. This dramatic announcement by EPA that every single one of the 79 pending permits violates the Clean Water Act is a condemnation of the quality of permits being churned out during the Bush Administration and is a testament to the Obama Administration’s sincere commitment to science, transparency, and enforcing environmental safeguards.

All of these permits had piled up behind a court decision that was issued in February, and so most of them were written during the Bush Administration. For those eight years, permits were being issued that violated the Clean Water Act, but EPA was prevented from objecting to the permits. Clearly there is a new sheriff in town.

It is important to note that this is only the first step in this process. These mountains have not been saved. The Army Corps now has 60 days to revise the permits and address EPA’s concerns. In our view, a sound reading of the science would determine that these permits cannot be issued. Some of the problems that are pervasive in all of these permits – heavy metal pollution downstream, the inability to restore healthy functioning streams to replace what has been lost – are problems that we just cannot engineer our way out of once a stream has been buried under millions of tons of rubble.

And ultimately, the Obama Administration needs to take the step of reversing Bush-era rule changes that remain in place. Until President Obama fixes both the fill rule, under the Clean Water Act, and the buffer zone rule, under the Surface Mining Act, Appalachia will continue to suffer destruction under Bush’s regulatory regime. You can encourage the Obama Administration to take those actions here.

Today’s announcement is just the latest stark reminder of the fact that, for too long, the coal industry has benefited from loopholes that no other industry enjoys. They bury streams with mining waste in violation of the Clean Water Act. They still lack any federal regulations for mercury pollution, a potent neurotoxin. They are allowed to dispose of toxic waste from their power plants – coal ash – again, with no federal regulations. It is time to close these loopholes, protect public health, and return the rule of law not just to Appalachia, but to all of America.

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