Mountaintop Removal Review Moves to Next Stage

by Holly Doremus

October 02, 2009

(Cross-posted by permission from LegalPlanet)

EPA finished September with a flourish. In addition to proposing New Source Review rules for greenhouse gas emissions and pushing for TSCA reform, the agency took the next step toward a crack-down on mountaintop removal. On September 11, EPA announced preliminary plans to review all 79 pending permit applications. This week, after considering public comment, it finalized that list, concluding that indeed all 79 require further review, based on concerns that the projects could more fully avoid or minimize impacts on aquatic resources; that they threaten to violate water quality standards; that their cumulative impacts have not been fully assessed; and that proposed mitigation efforts may not be effective.

Under the coordinated review procedures announced by EPA and the Corps in June, the next step is for the issuing Corps district and the appropriate regional office of EPA to review the permit applications together. That review is supposed to take no more than 60 days for any individual application, but does not have to being right away — the Corps will let EPA know when it is ready to deal with each permit application, based on workload, availability of information, and other factors.

The individual permit review process will give EPA a chance to fully air its concerns, and the Corps a chance to revise the permit conditions or even decline to issue the permit. The acid test will come at its conclusion. The Corps may still decide to issue a permit over EPA objections, but must provide a written explanation of its response to EPA’s concerns. At that point, EPA can either back off or exercise its § 404 veto power.

That EPA has decided to pursue further review of all 79 permit applications suggests that the agency is serious about fulfilling its statutory role of overseeing the Corps’ permitting decisions to make sure the nation’s waters are adequately protected. And it may soon have some added scientific tools for doing that job — Ken Ward’s Coal Tattoo blog reports that EPA’s National Center for Environmental Assessment is preparing a review of existing studies on the ecological impacts of mountaintop removal. A draft of the report is expected to be made public by the middle of November.


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Holly Doremus is James H. House and Hiram H. Hurd Professor of Environmental Regulation; Faculty Co-Director, Center for Law, Energy & the Environment; and Director, Environmental Law Program at the University of California, Berkeley.

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