Inside EPA - 09/03/2010
Industry Attacks On EPA Mining Limits Could Inform Data Quality Challenge
The mining industry is sharpening its attacks on draft scientific reports EPA is citing to justify its strict new surface mining limits in Appalachia, planning to detail the concerns in upcoming comments that sources say could form the basis for a Data Quality Act (DQA) challenge to EPA's policy and boost an ongoing lawsuit over the limits.
The National Mining Association (NMA) is expected to by Sept. 3 submit to EPA a lengthy scientific analysis questioning the data underlying the agency's strict first-time benchmark value for conductivity -- a measure of salinity -- that EPA is using to make decisions on mining permits. EPA says the value is necessary to protect water quality, and based the value largely on two draft studies the Science Advisory Board (SAB) is peer reviewing.
Sources say industry also will likely file DQA petitions seeking to revise or withdraw the draft reports at a yet-to-be-determined point in the future. The DQA generally requires agencies to ensure that data such as scientific studies used to establish policy stances are objective, peer-reviewed and reproducible. Agencies are required to accept and respond to petitions to correct allegedly flawed data used in rulemakings and other decisions.
Industry and state regulators have bristled at EPA's aggressive efforts to use the guidance as a way to limit mountaintop mining, by imposing new standards for review of Clean Water Act permits and its related effort to delay the Army Corps of Engineers from issuing wetlands permits that it says do not protect water quality. Industry groups have submitted several comment letters to EPA questioning the findings of those draft reports. The upcoming NMA comments and potential DQA challenge could bolster those criticisms.
DQA petitions challenging EPA's science on the effects of mountaintop mining could provide industry with another option for suing the agency over the guidance, if EPA does not respond quickly enough.
A ruling earlier this year from the U.S. Court of Appeals for the District of Columbia Circuit seemed to open the door for judicial review of agency responses of DQA petitions, and industry organizations from other sectors already are citing the ruling in pushing EPA for responses to their petitions (Inside EPA, July 16).
Among the most contentious moves by EPA in its mining policy has been to establish in the guidance a benchmark value for conductivity that it says should be maintained to comply with the water act.
Conductivity serves as a proxy to detect the presence of toxic ions from mine discharges. Industry and states say EPA should set limits on the particular ions about which it is concerned; EPA and activists say the proxy conductivity measure is appropriate because similar geology in the Central Appalachian region EPA is targeting means that ionic concentrations from discharges will be similar enough to use the easier-to-measure conductivity benchmark.
NMA has filed a lawsuit in U.S. District Court for the District of Columbia challenging EPA's use of the conductivity benchmark in water permit reviews as "arbitrary and capricious." The scientific analysis of EPA's conductivity study that NMA is preparing to submit also likely will bolster similar arguments outlined in its lawsuit, which challenges the full array of EPA efforts to more strictly regulate surface mining in Appalachia.
NMA has spent months going back and forth with EPA over the industry group's public records request for the datasets in the draft report that researchers used to establish the conductivity benchmark.
The draft report, "A Field-based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams," examined field data collected in West Virginia streams to establish a causal relationship between increased conductivity and the elimination of mayflies, which are relied on as food by larger aquatic organisms, in sections of streams below valley fills. Mining companies blast the tops off mountains to access buried coal seams and dump the excess waste into the fills, which environmentalists say bury streams, harm water quality and can damage surrounding property.
The study recommended a conductivity benchmark of 300 microsiemens per centimeter (uS/cm), which EPA included in the guidance as a level below which water quality would be protected. EPA said in the guidance that mining operations that would cause conductivity to go above 500 uS/cm likely would have Clean Water Act permits denied.
The conductivity benchmark report's findings were validated by analyzing a second dataset from Kentucky collected by the Kentucky Division of Water. EPA publicly released the West Virginia datasets in June, in response to a Freedom of Information Act request filed by NMA, but did not provide the Kentucky data until more than a month later, at which point NMA requested additional time to file comments on the draft report, a source says.
EPA did not respond to a request for comment by press time
Mining industry critics say the petitions are little more than a tactic to delay implementation of new regulations. "The industry has fought every effort to slow or curtail mountaintop removal mining, and I see this as just more of the same," one environmentalist says of industry's attacks on EPA's science and likely use of DQA.
The environmentalist predicts the industry's efforts may slow EPA's ability to apply the guidance to Appalachia or expand the use of conductivity more broadly, but are unlikely to result in significant policy changes.
"I don't think EPA would've gone out and initiated this guidance if they felt that they were on shaky [scientific] ground," the environmentalist says. "Now, having said that, I don't doubt that industry is going to be able to go out and find some outlier information to put into the record, but I think EPA is pretty committed to this." -- Nick Juliano