The Charleston Gazette | New EPA water rule continues coal industry exemption
Charleston Gazette
A new Obama administration rule that defines what waterways receive pollution protection is being criticized by a variety of industries and their political supporters, and praised as a remarkable achievement by most of the nation’s environmental groups.
The National Mining Association blasted the rule, and Sen. Joe Manchin, D-W.Va., promised to work to block the administration’s action, which he said would have a “significant impact on West Virginia’s economy, hindering businesses, manufacturing and energy production.”
On the contrary, the Natural Resources Defense Council declared, the joint U.S. Environmental Protection Agency-Army Corps of Engineers rule provides “long-overdue protections” that will “ensure cleaner wetlands, headwaters, brooks and streams that we use for swimming, fishing and other recreational activities.”
Despite all the rhetoric, a closer look at one provision shows that the new EPA rule might turn out to be not nearly as oppressive as its critics say, nor as comprehensive as its supporters seem to want the public to believe.
In fact, buried in the nearly 300-page rule made public last week is language that maintains a long-standing exemption that various industries — from coal mining to large-scale farming — have used to allow them to turn what might otherwise be considered streams into huge waste impoundments. (emphasis added)
Among the dozens and dozens of news releases issued last week to react the EPA’s final rule, only one appeared to focus on the agency’s decision to keep this exemption. In their statement, the Center for Biological Diversity and the Waterkeeper Alliance said the administration had issued a “weak” rule which “rolled back” protection for rivers and streams.
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Under the 1972 Clean Water Act, Congress gave the federal government broad authority to regulate pollution in major water bodies, as well as some streams and wetlands that drain into those larger waters. But Supreme Court decisions in 2001 and 2006 created confusion about which smaller streams or wetlands were covered.
When it announced the final rule last Wednesday, the EPA promoted the move as “an historic step for the protection of clean water” that would “clearly protect from pollution and degradation the streams and wetlands that form the foundation of the nation’s water resources.”
In its news release, though, the EPA also made clear that the final rule “does not create any new permitting requirements and maintains all previous exemptions and exclusions.” In the new rule itself, EPA officials emphasized that, “the scope of jurisdiction in this rule is narrower than under the existing regulation” and that “fewer waters will be subject” to Clean Water Act protections.
When the EPA first proposed the rule in April 2014, the agency suggested no changes to an existing “waste treatment exclusion.” Under this language, impounded or filled waterbodies lose their status as protected water under the law, meaning they do not have to meet basic pollution standards. Mining companies or other industries are free to dump pollutants into them. These waste treatment ponds are often filled with toxic coal ash, acid-leaching mine tailings or overburden from ore deposits.
During the public comment period on the EPA proposal, environmental groups urged the administration to eliminate this exemption.
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“The impounded wastes typically are not isolated from waters of the U.S., and in most cases are designed to discharge directly into protected waters,” Earthjustice said in a November 2014 letter to the EPA.
“The ‘treatment’ that occurs in these impoundments is frequently a farce, and often consists of nothing more than allowing the heaviest sediments in the discharges to settle to the bottom of the pond while the remaining untreated effluent is discharged into downstream waters,” the group said. “This practice causes serious water quality degradation downstream, even when discharges from the waste ponds are covered by permits. Usually water quality constituents such as hardness, conductivity, chlorides, sulfates, temperature and pH are adversely affected. This practice and result is utterly absurd and plainly contrary to law.”
In their own letter, the NRDC, the Sierra Club, the Conservation Law Foundation, the League of Conservation Voters, Clean Water Action, and Environment America agreed.
Coal industry officials urged the EPA to keep the waste treatment exclusion.
Alpha Natural Resources, for example, told the EPA in a letter that when surface mining permits are in place, all ponds that are used to control and treat mine drainage — as well as all “natural and man-made ditches and streams” carrying flow into those ponds — are not covered by the Clean Water Act.
Officials from the West Virginia Department of Environmental Protection echoed Alpha’s comments in their own letter to the EPA. (emphasis added)
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But Brett Hartl, endangered-species policy director at the Center for Biological Diversity, said exemptions like the waste treatment exclusion “undermine the helpfulness of this rule.”
“This was a massive missed opportunity,” Hartl said last week.
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Locally, the West Virginia Rivers Coalition issued a statement saying the group was celebrating the new EPA final rule because it would protect the state’s headwaters streams, which “supply the drinking water sources for millions of people.”
Asked later about the waste treatment exclusion, coalition executive director Angie Rosser acknowledged disappointment with that part of the rule.
“The Clean Water Rule doesn’t go as far as we’d like, but it’s better than no rule at all,” Rosser said. “Despite its shortcomings, it brings necessary regulatory clarity for our headwater streams . . . in today’s political climate, great compromise is required to get anything done.”
http://www.wvgazette.com/article/20150531/GZ01/150539969/1453
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Apparently, Manchin and other coal-industry hacks bitched as part of the anti-EPA chorus instead of reading the new rules before complaining.
Conservs have far too readily had knee-jerk reactions to the Repub-created (Nixon) EPA. It certainly would be nice if they actually thought about the future of concerns beyond industry/corporation profit before getting all red-faced irate about attempts to have a planet worth, and fit, to live in past next month.