EPA Issues Final Guidance on Conductivity As Tool in Assessing Coal Mining Permits

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The Environmental Protection Agency issued a final version July 21 of its guidance on EPA reviews of Clean Water Act permit requests for surface coal mining in Appalachia, with a conductivity benchmark retained as a central element of the guidance.

Conductivity, which is used as a proxy for measuring total dissolved solids in water, is being cited by EPA as a basis to reject Clean Water Act Section 402 pollution discharge permit applications and Section 404 dredge-and-fill permit applications. EPA began using the conductivity benchmark as soon as it was spelled out in an interim guidance April 1, 2010.

In the final guidance, EPA does not back away from the conductivity benchmark. The agency said its final guidance reflected the recommendations of its Science Advisory Board and its review of public comments.

The guidance, however, does not reflect the views of state regulators, the mining industry, or the House of Representatives. Frustrated by what they see as a rulemaking that evades the notice-and-comment requirements for federal rules, state officials and industry have taken EPA to court, while the House has approved a bill including a provision to block EPA's use of the guidance (42 ER 1589, 7/15/11).

In a summary description of its action, EPA said the final guidance directs its regional offices to clarify the agency's roles and expectations to assure more consistent, effective, and timely review of surface coal mining operations. The point of greatest contention in such mining is mountaintop removal, a practice that many environmental advocates and many members of Congress would like to abolish.

Guidance Called ‘Job Destroyer.'

Reaction from industry to the final guidance was swift.

Hal Quinn, president of the National Mining Association, issued a statement saying, “Despite the administration's pledges to focus on jobs creation, today's final guidance is a jobs destroyer and does nothing to cure EPA's unlawful permit moratorium on coal mining in Appalachia.”

Quinn said EPA “has modified the Section 404 permitting scheme, authority not granted to it under the Clean Water Act, and has similarly and unlawfully expanded its authority to determine state water quality standards.”

The NMA and state officials have made those charges in a case pending before the U.S. District Court for the District of Columbia. EPA, in a motion for summary judgment, insisted that the guidance is not binding and therefore not a violation of rulemaking requirements (National Mining Ass'n v. Jackson, D.D.C., No. 1:10-cv-1220, motion for summary judgment 6/15/11).

But the plaintiffs, in their court filings, cited specific examples of EPA objecting to permits because the permits lacked analyses and effluent limits based on conductivity.

EPA's objections have sharply reduced permitting for surface coal mines in Appalachia. Of 79 permit requests singled out for enhanced review in September 2009, only eight had been issued as of July 14, according to an administration official.

Environmental groups have argued that mountaintop removal, commonly involving the dynamiting of ridge tops and the piling of debris in “valley fills,” is too destructive of the environment. Appalachian regional groups have argued that the practice also is too destructive of the quality of life for communities near the sites.

By Alan Kovski

The EPA final guidance on EPA reviews of permits for Appalachian surface coal mining is available at http://water.epa.gov/lawsregs/guidance/wetlands/upload/Final_Appalachian_Mining_Guidance_072111.pdf .

Additional EPA information on the agency's reviews of Appalachian surface coal mining permits is available at http://water.epa.gov/lawsregs/guidance/wetlands/mining.cfm#memo20100401 .