EPA Rule Would Close Loopholes in Clean Water Act, Restore Protections for Streams and Wetlands

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Today, in the biggest step forward for clean water in more than a decade, the Environmental Protection Agency (EPA) and the Army Corps of Engineers proposed a rule to close loopholes in the Clean Water Act that leave more than half of America’s streams and millions of acres of wetlands at risk of unchecked pollution and development.

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The EPA’s proposed rule would reinstate Clean Water Act protections to 20 million acres of wetlands and more than half of U.S. streams, restoring protections to the drinking water for 117 million Americans. Photo courtesy of Shutterstock

“Whether we look back to the recent spill in West Virginia that left 300,000 people without drinking water or ahead to the dead zones that will blight Lake Erie and the Chesapeake Bay this summer, it’s obvious that our waterways are not as clean or safe as we need them to be—for our drinking water, for recreation, or for the health of our ecosystems and wildlife,” said Margie Alt, executive director of Environment America. “Today’s action by the EPA will help ensure that all our waterways get the protection they need so we can enjoy them for years to come.”

This rule-making comes after a decade of uncertainty over the jurisdiction of the Clean Water Act, following polluter-led Supreme Court challenges in 2001 and 2006. The rule, which could be finalized by the end of this year, would restore Clean Water Act protections to 20 million acres of wetlands and more than half our nation’s streams, restoring protections to the drinking water for 117 million Americans.

“Today’s action is vital to the health of America’s great waters,” said Alt. “By protecting the streams that feed into mighty rivers like the Mississippi and the wetlands that filter pollution from the Puget Sound and other iconic waters, this rule is a safety net for all the waterways Americans care about.”

With so much at stake, Environment America and its state affiliates have waged an intensive multi-year campaign to restore these Clean Water Act protections—including more than 1 million face-to-face conversations across the country, and rallying more than 400 local elected officials, 300farmers and 300 small business owners to call on the Obama Administration to take action.

“Water is so important for all farmers—big and small. It’s critical to our way of life,” said Lynn Utesch, owner of Guardians of the Field Farm, a cattle farm in Kewanee County, WI. “Here in Wisconsin, we’ve experienced a new dead zone in Green Bay as an effect of the health of our streams and other waterways. To protect the waters we love and need, like Lake Michigan, we need to make sure the Clean Water Act protects all our waterways.”

Unfortunately, many of the nation’s biggest polluters have opposed the EPA’s action. Thousands of miles of pipelines running through wetlands prompted Big Oil to threaten “legal warfare” over the issue. Factory farms that dump millions of gallons of manure annually attacked the rule as a “land grab.” And with mountaintop removal literally burying valley streams in rubble and waste, big coal is also opposing these common sense clean water protections.

In Sept. 2013, the EPA announced plans to move forward with the rule-making and simultaneously released a draft science report on the connection between smaller streams and wetlands and downstream waters, which makes the scientific case for the rule-making. Members of the public submitted more than 150,000 public comments in support of the report’s findings.

“When finalized, this rule will be the biggest step forward for clean water in more than a decade,” said Alt. “Thank you, Administrator McCarthy and all the staff at the EPA, for fighting to protect clean water. We look forward to working with you to get the job done.”

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Supreme Court Rejects Coal Industry Lawsuit, Defends EPA Veto of Mountaintop Removal Mine

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Today the U.S. Supreme Court denied the coal mining industry’s request to hear a case against the Environmental Protection Agency (EPA) for vetoing part of a permit for one of the largest and most harmful mountaintop removal coal mines in West Virginia’s history, the Spruce No. 1 mine. By declining to take the case the Supreme Court refused to reverse the lower court’s ruling that the EPA has full authority to protect clean water whenever necessary to prevent unacceptable environmental harm.

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Photo courtesy of Southwings

In October 1999, the Spruce No. 1 Mine became the subject of the first significant federal court decision on mountaintop removal mining, won by individual community members and the West Virginia Highlands Conservancy (represented by Appalachian Mountain Advocates and Public Justice). That case initiated years of controversy and litigation over this proposed mine. In the meantime, the science accumulated showing how devastating this type of mining is for local waters and communities.

In Jan. 2011, the EPA decided to veto the Spruce No. 1 Mine permit based on robust science showing the irreparable harm that would occur if the mining company were allowed to permanently bury and pollute natural headwater streams with mining waste. The permit would have allowed the Mingo Logan coal company to bury and destroy more than six miles of pristine mountain streams under mining waste dumps created from the destruction of more than 2,000 acres of land, releasing harmful pollutants into downstream waters that sustain local communities and wildlife. Appalachian citizen groups have been fighting to save the streams that would be destroyed by the Spruce Mine for more than a decade—as one of the largest, most harmful mountaintop removal mines ever proposed.

“The Spruce No. 1 mine is one of the largest and most destructive mountaintop removal mines ever proposed in Appalachia,” said Trip Van Noppen, president of Earthjustice. “EPA’s decision to veto the dumping of waste from this mine was a decision to prevent the most extreme impacts of the most radical type of strip mining—the worst of the worst. The Clean Water Act, enacted with wide bipartisan and public support, gave EPA broad authority to step in and stop this type of wholesale destruction and pollution of U.S. waters. The Supreme Court refusal to hear industry’s baseless case confirms that the EPA has the clear legal authority to prevent the dumping of waste whenever it would cause unacceptable harm to communities and the environment.”

In this instance, the EPA decided to veto the Spruce No. 1 mine permit after substantial new science had come to light. The EPA considered more than 50,000 written comments before issuing the veto. The vast majority—70 percent—supported the EPA’s veto.

“The coal industry has falsely painted the Spruce mine veto as an example of EPA overreach and a ‘war on coal,’ when in fact EPA’s authority to veto this permit is obvious from the face of the statute and EPA’s decision is based on clear scientific evidence of serious environmental harm from mining,” said Jim Hecker, environmental enforcement director at Public Justice and co-counsel in the 1998 case that initially blocked the Spruce mine

In 2012, the D.C. district court ruled that the EPA lacked authority to veto the permit after the Corps had issued it, without addressing the scientific merits of the EPA’s decision. In 2013, the D.C. Circuit (in an opinion by Judges Henderson, Griffith and Kavanaugh) unanimously reversed the district court’s ruling and upheld the EPA’s authority to veto whenever there is unacceptable harm, including after a permit has been issued. The full D.C. Circuit then denied the coal company’s petition for en banc review.

“This is a very gratifying outcome for water drinkers everywhere,” said Vivian Stockman, project coordinator, Ohio Valley Environmental Coalition. “The Court agrees that Congress gave EPA the authority to protect our waters from devastating harm, harm the proposed massive Spruce mountaintop removal mine would wreak if its permit was not vetoed. By protecting clean water, EPA is ultimately protecting human health, and as recent events have underscored, here in central West Virginia we cannot depend on the coal industry, nor state government to protect human health by protecting clean water. We need EPA to be able to keep a check on things.”

Today’s denial of certiorari reaffirms what the D.C. Circuit decided—that the EPA has authority to veto a harmful permit after it is issued. The case now goes back to the district court to review the scientific merits of the EPA’s veto decision in this specific instance.

“It’s absurd that we have to fight this hard to protect one site from mountaintop removal when there are so many threatening the health of mountain communities,” said Vernon Haltom, executive director of Coal River Mountain Watch. “We have to rely on the EPA to do the job clearly entrusted to them, because the West Virginia Dept. of Environmental Protection long ago abdicated their mission. To struggle so long for one site is all the more reason that we need to pass the Appalachian Community Health Emergency Act, HR 526.”

Visit EcoWatch’s WATER and COAL page for more related news on this topic.

Advocates for the Gulf Sue Coal Export Terminal for Polluting Mississippi River

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Environmental advocacy groups this morning filed suit against the United Bulk coal export terminal in Davant, LA, for violating the federal Clean Water Act. Photographs, video footage and satellite imagery document piles of United Bulk coal and petroleum coke that generate highly polluting dust and debris.

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The imagery shows plumes of coal-polluted water spreading into the Mississippi River from the United Bulk terminal. The terminal, owned by United Bulk Terminals Davant LLC, has operated for more than four decades, shipping millions of tons of coal and petcoke every year to overseas markets.

“The coal and petcoke sit in huge, open piles along the river,” said Warren Lawrence, who lives in the neighboring community of Myrtle Grove. “So when there’s rain and wind, it just blows right into the river and the wetlands. The natural environment is the reason people love this area, and the coal is destroying it.”

Gulf Restoration Network, Louisiana Environmental Action Network (LEAN) and Sierra Club filed suit in New Orleans’ U.S. District Court for the Eastern District of Louisiana. The groups, represented by Tulane University’s Environmental Law Clinic, are members of the Clean Gulf Commerce Coalition, which is working to clean-up existing coal terminals in the Gulf Coast region, stop any new coal export terminals, and promote cleaner, safer industries and jobs.

The suit contends that United Bulk has illegally discharged coal and petcoke into the river every day that it has operated for at least five years. It points out that coal and petcoke—an oil-refining byproduct with high levels of arsenic, mercury and other toxins hazardous to human health and aquatic life—have been discharged into the river in enough quantities to produce visible spills on a regular basis. The suit also cites the U.S. Environmental Protection Agency’s determination that stormwater runoff from coal piles “can flush heavy metals from the coal, such as arsenic and lead, into nearby bodies of water.”

LEAN Executive Director Marylee Orr said that conservation groups and community residents hope that United Bulk will adopt a more environmentally responsible approach. “We’re hopeful that we’ll be able to work with the company to clean up the facility and make it safer for workers, communities and the environment.”

Today’s legal challenge follows the suit filed last fall by Clean Gulf Commerce Coalition organization against Louisiana’s Department of Natural Resources for its illegal approval of a coastal use permit for the proposed RAM coal export terminal in Myrtle Grove in Plaquemines Parish. The suit argues that the RAM terminal conflicts with the state’s master plan for restoring Louisiana’s disappearing coastal wetlands.

“The expansion of coal exports and the associated pollution to the Mississippi and surrounding communities and wetlands flies in the face of Louisiana’s coastal master plan,” said Scott Eustis, Gulf Restoration Network’s coastal wetland specialist. “The river is a valuable and limited resource for rebuilding our coastal wetlands, without which we cannot continue to live in Louisiana.” 

Louisiana is at particular risk from increased coal exports through the Mississippi River. Three terminals along the Lower Mississippi, including United Bulk, are seeking to dramatically expand exports, which would increase the amount of coal and petcoke stored in open piles, blanket nearby areas in dust and discharge more coal-polluted runoff into vital coastal wetlands.

The international market for U.S. coal has also grown increasingly volatile. Port authorities on the West Coast and in Corpus Christi, TX have concluded that the coal export market is simply too risky to invest significant sums in new or expanded shipping facilities.

“When you look at the big picture, the existing coal terminals in Louisiana are too dirty, and shipping more coal through Louisiana at new terminals is simply too risky,” said Al Armendariz, senior campaign representative with Sierra Club’s Beyond Coal campaign. “The international markets can’t be counted on, the changing climate creates too many variables, and local communities don’t want to be the coal pipeline to India and China. Louisiana leaders should focus on solutions that will help communities prosper—coastal restoration and tapping into the clean energy economy now.”

Both Clean Gulf Commerce Coalition and the Power Past Coal coalition in the Pacific Northwest are focusing attention on health, safety and environmental impacts of existing coal export systems, including shipping coal by rail from mines to the ports.

The Clean Gulf Commerce Coalition includes: Air Alliance Houston, Gulf Restoration Network, Louisiana Environmental Action Network, Lower Mississippi River Keeper, Public Citizen, Sierra Club, Texas Environmental Justice Advocacy Services and Texas Organizing Project.

Visit EcoWatch’s COAL page for more related news on this topic.

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Hidden Camera Reveals Dumping of Toxic Coal Ash Into Ohio River

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Time-lapse photography from a camera strapped to a tree has captured a year’s worth of images proving that dangerous coal ash wastewater from a plant owned by the utility company Louisville Gas & Electric (LG&E) is pouring unabated into the Ohio River.

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This photographic evidence, along with Google Earth satellite images from 1993 to present, support the Sierra Club and Earthjustice’s notice of intent to sue LG&E for violating the federal Clean Water Act and the terms of the utility’s own permit allowing only an “occasional” discharge into the river.

“It’s devastating to think that this could have been going on for more than 20 years,” said Sierra Club organizer Thomas Pearce, who helped install the hidden camera last year. “It’s like the North Carolina or West Virginia spills but in slow motion, with no one to stop it.”

A coal ash pond for LG&E’s Mill Creek Generating Station, which sits on the Ohio River, is the source of the pollution. The U.S. Environmental Protection Agency (EPA) previously classified the pond as being “high hazard,” meaning a failure or misoperation of the ash pond dam will likely result in fatalities and environmental damage.  

While the federal Clean Water Act does protect waterways from pollution, there are no federal safeguards specific to coal ash pollution. The Sierra Club is part of a legal agreement with 11 organizations compelling the EPA to finalize safeguards against coal ash pollution by Dec. 19.

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Coal ash is the toxic byproduct left over when coal is burned to generate electricity. It contains dangerous chemicals including mercury, arsenic (a known carcinogen), lead, selenium, cadmium and many other harmful metals and pollutants. These toxic metals build up in ecosystems and most are dangerous even in very small amounts.

According to a 2010 report to Congress on the condition of Kentucky waters submitted by the Kentucky Energy & Environmental Cabinet, the Ohio River is impaired by mercury pollution and is subject to a fish consumption advisory.

“LG&E is breaking the law, contaminating our water and deliberately putting us at risk for their own profit,” said Louisville resident Mark Romines, whose home sits less than a quarter of a mile from the Mill Creek coal plant.

The Mill Creek coal plant and its associated coal ash pond are 500 feet from a large residential development and 1,000 feet from a middle school. Despite this close proximity, Kentucky law does not require LG&E to test its coal ash wastewater for toxic levels of pollution.

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“Coal ash contamination is rampant across the country, and the evidence gathered at Mill Creek is unequivocal,” said Earthjustice attorney Thom Cmar. “Coal ash has already polluted more than 200 lakes, rivers, streams and drinking waters. The problem continues to worsen, but no federal protections exist. Our household garbage is better regulated than this toxic waste.”

Coal-fired power plants are some of America’s biggest water polluters, dumping more toxic pollution into rivers and streams than any other industry in the U.S. Every year, the nation’s coal plants produce 140 million tons of coal ash pollution—and those tons of toxic material are stored in unlined and unmonitored dumps, leaking into groundwater and streams that nearby communities often rely on for drinking water. At Mill Creek, the coal ash pond is also unlined and dumping directly into the Ohio River.

Visit EcoWatch’s COAL page for more related news on this topic.

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Long-Awaited EPA Study on Pebble Mine Finds Potentially Catastrophic Impacts to Bristol Bay Salmon Fisheries

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Completing a three -year scientific peer-reviewed process, the U.S. Environmental Protection Agency (EPA) issued its final Bristol Bay Watershed Assessment today, concluding that Pebble Mine would have “significant” and even “catastrophic” impacts—including the certain dewatering, destruction and pollution of the Bristol Bay watershed.

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The proposed Pebble Mine would destroy up to 94 miles of streams, devastate up to 5.350 acres of wetlands, ponds and lakes, harm a native lifestyle dependent on subsistence fishing, and threaten a salmon industry that generates $480 million in direct economic expenditures in 2009 and supports 14,000 jobs. The mine faces more than 80 percent local opposition and lost its key funder, Anglo American, last year.

“This is a scientific indictment of the Pebble Mine—or any other large-scale mining in the Bristol Bay watershed,” said Joel Reynolds, western director of the Natural Resources Defense Council. “The assessment documents what we’ve feared for years—Pebble Mine would destroy the world-class wild salmon fishery, cost jobs and endanger the communities and wildlife that depend on it.” 

Proposed at the headwaters of the world’s greatest wild salmon fishery, Pebble Mine would threaten the region’s internationally renowned salmon runs. Every year, an average of 37.5 million wild sockeye salmon return to Bristol Bay, making up nearly half of the world’s supply of sockeye salmon. Salmon are the economic, cultural and ecological linchpin of the region, supporting a wild salmon fishery that generates nearly $480 million in direct economic expenditures and employs 14,000 workers, a traditional native subsistence lifestyle, and vibrant wildlife.

The proposed mine would risk this economic, cultural and ecological powerhouse by gouging one of the world’s largest gold and copper mines out of the headwaters of Bristol Bay. It would generate up to 10 billion tons of contaminated waste that would have to be stored in perpetuity at the headwaters of the region’s famed salmon runs.

“The watershed assessment is objective, clear and grounded in sound science,” said Reynolds. “It was conducted over several years and confirms what the residents of the region have long understood: that large scale mining in this place would pose an unacceptable risk.”

The EPA’s assessment is another hurdle facing the already beleaguered mine. The EPA has taken precaution to ensure that its assessment represents the most comprehensive science regarding large-scale mining in the Bristol Bay watershed. The agency’s process has taken more than three years and has involved two rounds of review by independent scientists, numerous public hearings, and two public comment periods that generated more than 1.1 million comments. During the second comment period alone, more than 650,000 people supported the EPA’s findings, including 84 percent of Alaskans and 98 percent of Bristol Bay residents who submitted written comments. 

“The time for study is over. It’s now up to EPA to take regulatory action to stop the Pebble Mine,” Reynolds concluded. “It’s time for the EPA to protect American jobs and a vibrant salmon industry by taking action under Section 404(c) of the Clean Water Act to permanently protect the fishery and water resources of Bristol Bay—and the economic engine and environmental, social and cultural resources that they sustain.”

Visit EcoWatch’s BIODIVERSITY and WATER pages for more related news on this topic.

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