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The 90 Day Plan

Friday, April 30, 2010

Victory for Appalachian Communities and Watersheds

On April 1st, the U.S. Environmental Protection Agency (EPA) issued a landmark decision to curtail pollution from Appalachian mountaintop removal (MTR) coal mining operations. The EPA's planned actions are all geared toward providing improved guidance for the environmental review process and the Clean Water Act (CWA) permits issued to MTR operations. To achieve these aims, the agency plans to clarify the requirements of CWA Section 402 and 404 permits for pollutant discharges to its cooperating permitting authorities. As part of this decision the agency issued a memorandum acknowledging the detrimental ecological effects mountaintop removal operations have had in Appalachia, including the filling in of 2,000 stream miles since 1992 and the deforestation of a total land area as large as Delaware.

Mountaintop removal entails blasting off the tops of mountains with explosives to mine thin layers of coal. Current mining practices devastate the environment by altering the topography of entire mountain ranges, deforesting massive areas, causing erosion, displacing plants and wildlife, altering hydrological regimes, and polluting waterways. After a mountaintop is removed, mining operations fill in nearby valleys and their network of streams with excess rock and sediment. These "valley fills" require both Section 402 and 404 permits as they leach heavy metals into waterways, raising levels of Total Dissolved Solids (TDS), conductivity, phosphates and selenium. Pollution from valley fills also pose risks to human health when heavy metal pollution contaminates drinking water and recreational waterways.

Perhaps the most notable aspect of the new policy is the establishment of numeric criteria for conductivity. Conductivity is a measure of the amount of electricity conducted by water, and is measured by determining levels of ionic salts. Low conductivity levels indicate a stream is more hospitable to the microorganisms and macro-invertebrates that form the basis of the stream food web; high levels of conductivity render waterways uninhabitable to all but the most pollution tolerant aquatic organisms. After review of internal agency studies and a growing body of scientific work, the EPA concluded that streams with conductivity levels exceeding 500 microsiemens per centimeter (μS/cm) are "impaired," and that streams with conductivity between 300-500 μS/cm experience negative ecological impacts. Under the new guidance the EPA will block new permits for mining operations projected to raise downstream conductivity above 500 μS/cm. In a statement to reporters on April 1st, EPA administrator Lisa Jackson highlighted the extent of conductivity pollution in Appalachian streams, saying, "Some existing mountaintop mining operations are generating pollution levels as much as ten times the new standard."

Aside from scientific consensus underscoring the causal relationship between pollutants originating in MTR valley fills and a loss in both benthic species richness and diversity downstream, the memorandum lists another motivating factor behind the EPA decision. A 2009 focused Permit Quality Review of state-issued NPDES permits revealed a series of pervasive problems with permits that "warrant immediate attention" including: "serious issues with underlying data quality, such as erroneous field meter readings, biological samples collected outside of state index periods or during extreme low flows, and inclusion of non-endemic taxa in taxonomic lists." To remedy this situation the EPA is encouraging its regional offices to more closely review state-issued NPDES permits, work with states to write CWA and Section 401 compliant permits, and to raise objections when states are unable to produce acceptable permits.

"We are thrilled that EPA has taken steps to protect our streams and our communities. In issuing this guidance, EPA is doing what they are legally required to do: propose specific limits on pollutants discharged from mining operations into our water that protect human and ecological health under the Clean Water Act," said Judy Petersen, Executive Director of Kentucky Waterways Alliance.

River Network applauds the efforts of many Central Appalachian environmental groups and environmental law firms that have been hard at work advocating for such a policy shift for years, including Alliance for Appalachia,Appalachian Center for the Economy and the EnvironmentAppalachian Citizen's Law Center,
Coal River Mountain WatchEarthjusticeKentuckians for the CommonwealthKentucky Resources Council,Kentucky Waterways AllianceOhio Valley Environmental CoalitionPublic JusticeSierra ClubWest Virginia Highlands Conservancy, and many others. These groups have spent years tirelessly pursuing legal action against MTR operations and permitting agencies, as well as promoting awareness of the devastating social and environmental impacts of Appalachian coal mining.

While it marks a definitive shift from the Bush administration's policies toward mining permits, this new policy does not ensure adequate protection for Appalachian communities and watersheds. The new conductivity criteria will apply only to the 79 new project permits currently up for EPA approval, future mining permits, and permit renewals. NPDES permits for MTR operations last for 5 years, after which time they must be renewed. While the guidance is immediately effective, the EPA will solicit public comments throughout 2010 and then reexamine the new guidance with public comments and additional scientific and technical reviews taken into account.

To learn more and read the EPA memorandum visit:

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