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  • Dynamite, Disaster, and Disappearing Options: How the EPA is Losing the Battle Against Mountaintop Removal Coal Mining Practices

    Part I of this paper details the process of mountaintop removal mining and the emerging scientific information and community experience which demonstrate the real-life impacts of surface mining practices: the basis for EPA‘s increasing interest in more stringent controls on mountaintop mining practices. Part II of this paper sets out the historical and modern regulatory schemes for surface mining projects, including a discussion of CWA jurisprudence over the question of "fill" versus "waste" materials, as well as a discussion of the permits required for mountaintop removal mining operations. Part III details EPA‘s recent attempts to work within the existing regulatory scheme to adopt cooperative, interagency coordination processes with the Corps and the Department of the Interior to better integrate environmental considerations into each agency‘s handling of mountaintop removal proposals. Part IV of this paper describes the recent invalidation of these interagency coordination measures as ultra vires action on the part of the EPA. Part V includes a discussion of EPA‘s only remaining statutory recourse for regulating mountaintop removal mining: the CWA § 404(c) veto power, as well as the March 2012 Mingo Logan decision, overturning an EPA exercise of this veto power. Finally, the conclusion returns to the impasse faced by EPA in attempting to meet its environmental protection mandates within an extremely restrictive regulatory scheme and proposes potential options for resolving this impasse.