Today the Environmental Protection Agency issued its final advice to its field staff about how they should consider scientific evidence of the downstream impacts of mountaintop removal coal mining when reviewing proposed permits for those mines. This guidance document, as it is known in the administrative law world, replaces one released last April, and will help protect Appalachian communities from the impacts of mountaintop removal mining. The guidance advises EPA’s Clean Water Act permit reviewers concerning the levels of conductivity—a measure of the amount of certain kinds of contaminants in stream water—to gauge the impacts of proposed mountaintop mining operations on water quality.
The issuance of this final guidance underscores the deliberate and science-based way that EPA is approaching its actions on mountaintop removal. The final guidance was developed over the course of fifteen months, as EPA reviewed the science and solicited public comments on its interim guidance.
Of course, the guidance is just that—guidance. It will help EPA apply an appropriate level of scrutiny to mountaintop removal permit proposals, in light of scientific concerns about mines’ potential to cause significant pollution.
Ultimately, the Obama administration needs to do more to curtail mountaintop removal, as the practice of using the nation’s waters as waste dumps is fundamentally inconsistent with the principles that underlie the Clean Water Act. My colleague Allen Hershkowitz recently argued that the existing science demands a moratorium on new mountaintop removal permits pending further investigation by our nation’s top scientific bodies. The government has significant untapped authority to rein in these mines, especially to curtail their impacts on water quality, and it should do so.
But in the meantime, EPA must be allowed to continue its important work to uphold science and the law, as it reviews individual mine proposals. We must preserve EPA’s legal authority to protect people and the environment from mountaintop removal pollution by fighting back against congressional efforts to weaken the Clean Water Act, such as the new dirty water bill recently passed by the House of Representatives and the numerous anti-clean water “riders” (including some on mountaintop removal specifically) in the spending bill now under consideration in Congress.
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