EPA Stutters on Mountaintop Removal Mining (MEE)

The US Environmental Protection Agency has sent a letter to two offices of the Army Corps of Engineers related to “potential harmful impacts on water quality” at two surface coal mine operations, one in West Virginia and one in Kentucky. One of the mines is owned by a subsidiary of Massey Energy Co. (NYSE: MEE) and the other by a subsidiary of Rhino Resources. According to the press release, the EPA will also review other mining permits involving a practice called mountaintop removal.

Under the Clean Water Act, the Corps of Engineers must issue permits for surface mining that could damage water quality.  The EPA also is required to review the proposed permits and to advise the Corps “where necessary to ensure that proposed permits fully protect water quality.”

The EPA has always had authority under the Clean Water Act to review the Corps’ permits, but has rarely used it. A February decision by the Fourth Circuit Court of Appeals has made it easier for the Corps of Engineers to conduct reviews and issue permits for mountaintop mining, but EPA review is still part of the permitting process.

The AP ran a headline, “EPA delays hundreds of mountaintop mining permits”, which caused the EPA to issue a second press release clarifying the meaning of its earlier release. The EPA “is not halting, holding, or placing a moratorium” on any permit applications, and the agency says it “fully anticipate[s] that the bulk of the pending permit applications will not raise environmental concerns.”

This appears to the coal industry to be an attempt by the EPA to circumvent the court ruling. The EPA’s clarification press release tries to belie that interpretation. But the pecking order is clear. The EPA can trump the Corps on water quality issues. And the agency has just fired a warning shot on mountaintop removal mining.

Paul Ausick
March 25, 2009