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Mountaintop Mining:
Background on Current Controversies
Claudia Copeland
Specialist in Resources and Environmental Policy
October 28, 2009April 12, 2010
Congressional Research Service
7-5700
www.crs.gov
RS21421
CRS Report for Congress
Prepared for Members and Committees of Congress
c11173008
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Mountaintop Mining: Background on Current Controversies
Summary
Mountaintop removal mining involves removing the top of a mountain in order to recover the
coal seams contained there. This practice occurs in six Appalachian states (Kentucky, West
Virginia, Virginia, Tennessee, Pennsylvania, and Ohio). It creates an immense quantity of excess
spoil (dirt and rock that previously composed the mountaintop), which is typically placed in
valley fills on the sides of the former mountains, burying streams that flow through the valleys.
Critics say that, as a result of valley fills, stream water quality and the aquatic and wildlife habitat
that streams support are destroyed by tons of rocks and dirt. The mining industry argues that
mountaintop mining is essential to conducting surface coal mining in the Appalachian region and
that surface coal mining would not be economically feasible there if producers were restricted
from using valleys for the disposal of mining overburden.
Mountaintop mining is regulated under several laws, including the Clean Water Act (CWA) and
the Surface Mining Control and Reclamation Act (SMCRA). OnIn June 112009, officials of the
Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (Corps), and the
Department of the Interior signed a Memorandum of Understanding outlining a series of
administrative actions under these laws to reduce the harmful environmental impacts of
mountaintop mining and surface coal mining in Appalachia. The plan includes a series of near-termnearterm and longer-term actions that
emphasize specific steps, improved coordination, and greater
transparency of decisions. This
The actions are being implemented through regulatory proposals,
guidance documents, and review of pending applications for permits to authorize mountaintop
mining-valley fill operations. This report provides background on regulatory requirements, controversies,
controversies and legal challenges to
mountaintop mining, and recent actions and proposals by
the Administration. Congressional attention to these issues, including legislation that seeks to
restrict the practice (H.R. 1310, the Clean Water Protection Act, and S. 696, the Appalachia
Restoration Act), also is discussed.
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Contents
What Is Mountaintop Mining?.....................................................................................................1
Regulatory Setting ................................................................................................................2
Criticism and Legal Challenges to Mountaintop Mining ..............................................................3
OSM’s Stream Buffer Zone Rule...........................................................................................5
Other Litigation ....................................................................................................................6
Administrative Actions and Congressional Activity .....................................................................7
Recent Administration Actions ..............................................................................................7
Congressional ActionsGuidance on Permitting...........................................................................................................99
EPA Proposed Veto of a Mountaintop Mining Permit..................................................... 10
Congressional Actions......................................................................................................... 11
Contacts
Author Contact Information ...................................................................................................... 1012
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What Is Mountaintop Mining?
The environmental, economic, and societal impacts of the surface mining practice termed
mountaintop removal mining have attracted considerable attention. This type of surface mining
occurs in an area of approximately 12 million acres located in portions of Kentucky, West
Virginia, Virginia, Tennessee, Pennsylvania, and Ohio.
As its name suggests, mountaintop removal mining involves removing the top of a mountain in
order to recover the coal seams contained in the mountain. Explosives are used to break the
mountain’s rock, and massive earth-moving equipment, often including equipment called
draglines, removes the spoil (i.e., the dirt and rock that composed the mountaintop over or
between the coal seams). While federal law calls for excess spoil to be placed back in the mined
areas—returning the lands to their approximate original contour (AOC)—that result ordinarily
cannot be accomplished with mountaintop mining because broken rock takes up more volume
than did the rock prior to mining and because there are stability concerns with the spoil pile.
Mountaintop removal creates an immense quantity of excess spoil, which is typically placed in
valley fills on the sides of the former mountains. One consequence is that streams flowing
through the valleys are buried.
All types of surface and underground coal mining in Appalachia generate excess spoil fills due to
the increased volume of broken rock, limitations on the steepness and height to which broken
rock may be placed to achieve a stable slope, and the steep topography of the region. Large mines
may be surrounded by several valley fills. Depending on the local topography and the profile of
those valleys, a single fill may be over 1,000 feet wide and over a mile long.
While mountaintop removal mining has been practiced in some form since the 1960s, it became a
prevalent coal mining technique in parts of central Appalachia during the 1990s for several
reasons. First, as the demand for electricity increased, so has the demand for the relatively cleanburning, low-sulfur coal found in Appalachia. Second, coal supplies near the surface have been
significantly depleted. Third is the development of large surface mining equipment (draglines)
capable of moving over 100 cubic yards of earth in a single scoop.
For many years, excess spoil from coal mining was generally placed in the extreme headwaters of
streams, affecting primarily ephemeral streams that flow intermittently only in direct response to
precipitation in the immediate watershed. Because smaller upstream disposal sites are exhausted
and because of the increase in mountaintop mining activity, today the volume of a single stream
fill can be as much as 250 million cubic yards. As a result, streams are eliminated, stream
chemistry is harmed by pollutants in the mining overburden, and downstream aquatic life is
impaired. From 1985 to 2001, an estimated 724 stream miles in West Virginia, Kentucky, and
parts of Virginia and Tennessee (1.2% of streams) were covered by valley fills. Approximately
1,200 miles of headwater streams were directly impacted by mountaintop mining activities. 1
1
U.S. Army Corps of Engineers et al., “Mountaintop Mining/Valley Fills in Appalachia Final Programmatic
Environmental Impact Statement,” October 2005, p. 4, http://www.epa.gov/region3/mtntop/pdf/mtmvf_fpeis_summaryEPA estimates that, from 1992 to 2010, almost 2,000 miles of Appalachian streams
were buried by mountaintop coal mining. 1
1
Peter S. Silva, Assistant Administrator for Water, and Cynthia Giles, Assistant Administrator for Enforcement and
Compliance Assurance, Improving EPA Review of Appalachian Surface Coal Mining Operations under the Clean
Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order, U.S. Environmental
Protection Agency, Detailed Guidance, April 1, 2010, p. 2, http://www.epa.gov/owow/wetlands/guidance/pdf/
appalachian_mtntop_mining_detailed.pdf.
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Regulatory Setting
Regulation of valley fills associated with mountaintop removal mining is primarily under the
authority of two federal statutes, the Surface Mining Control and Reclamation Act (SMCRA, 30
U.S.C. §1201) and the Clean Water Act (CWA, 33 U.S.C. §1252), and involves several federal
and state agencies. The two laws provide for separate regulatory programs with different purposes
and different permitting requirements and procedures. For example, the CWA focuses primarily
on regulating discharges into waters of the United States, while SMCRA regulates a broad range
of environmental and other impacts of surface coal mining and reclamation operations.
SMCRA addresses the necessary approvals for surface mining operations, as well as inspection
and enforcement of mine sites until reclamation responsibilities are completed and all
performance bonds are released. SMCRA permits may be issued by the Office of Surface Mining,
Reclamation and Enforcement (OSM), U.S. Department of the Interior, or by qualified states,
only if it has been shown that the proposed mining activities will satisfy general performance
standards applicable to all surface coal mining operations.2 Among those standards, SMCRA
addresses disturbances at the mine- site and in associated offsite areas and AOC requirements, as
, as well as the quality and
quantity of water in surface and ground water systems both during and
after surface coal mining operations
operations. While SMCRA generally requires that surface-mined areas be reclaimed so that they
closely resemble the general surface configuration of the land prior to mining (i.e., AOC), the law
and OSM regulations allow a variance from AOC for mountaintop mining operations under
certain conditions.
The CWA prohibits the discharge of any pollutant from any point source into the waters of the
United States, except in compliance with a permit issued under one of the two permit programs
established by the statute. The two permit programs are the National Pollutant Discharge
Elimination System (NPDES) program, administered by the Environmental Protection Agency
(EPA) under CWA Section 402, and the dredge and fill permit program administered by the U.S.
Army Corps of Engineers (Corps) under CWA Section 404.3 Mountaintop mining and other
surface coal mining operations typically require both types of permits—a Section 404 permit for
the discharge of mining overburden into waters of the United States, and a Section 402 permit for
discharges from sediment ponds and any other stormwater discharges. The two permit programs
employ The two permit programs employ
different regulatory approaches.
The NPDES program focuses primarily (but not exclusively) on discharges such as wastewater
discharges from industrial operations and sewage treatment plants. Section 402 permits must
include limitations on the quantities, rates, and concentrations of pollutants that reflect treatment
with available pollution control technology and any more stringent limitations necessary to meet
state-established water quality standards for the receiving water. The standard for issuance of a
Section 402 permit is compliance with pollutant limitation and control provisions in the act.
The Section 404 permit program, which applies to the discharge of dredged or fill material, calls
for the application of a set of environmental guidelines promulgated by EPA in conjunction with
the Corps. These guidelines are intended to provide a comprehensive means of evaluating
whether any discharge of fill is environmentally acceptable. The standard for issuance of a 404
permit is consideration of the full public interest by balancing the favorable impacts of a proposed
activity against the detrimental impacts to reflect the national concerns for both the protection and
utilization of important resources. A discharge is categorically prohibited if it would significantly
degrade water quality. In addition, no discharge may be allowed if there is a less environmentally
2
In the Appalachian states where mountaintop mining occurs, the SMCRA regulatory program has been delegated by
the federal government to state agencies, except in Tennessee.
3
The CWA authorizes delegation of both of these permit programs to qualified states. The NPDES program has been
delegated to 46 states, including each of the Appalachian states. The Section 404 program has been delegated to two
states, Michigan and New Jersey.
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Corps and EPA have complementary roles in implementing the Section 404 permit program.
Under Section 404, the Corps issues permits for the discharge of dredged or fill material, using a
2
In the Appalachian states where mountaintop mining occurs, the SMCRA regulatory program has been delegated by
the federal government to state agencies, except in Tennessee.
3
The CWA authorizes delegation of both of these permit programs to qualified states. The NPDES program has been
delegated to 46 states, including each of the Appalachian states. The Section 404 program has been delegated to two
states, Michigan and New Jersey.
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set of environmental guidelines promulgated by EPA in conjunction with the Corps. These
guidelines are intended to provide a comprehensive means of evaluating whether any discharge of
fill is environmentally acceptable. The standard for issuance of a 404 permit is consideration of
the full public interest by balancing the favorable impacts of a proposed activity against the
detrimental impacts to reflect the national concerns for both the protection and utilization of
important resources. A discharge is categorically prohibited if it would significantly degrade
water quality. In addition, no discharge may be allowed if there is a less environmentally
damaging practicable alternative. Where there is no other alternative, the discharge may be
allowed if the applicant has taken all practicable steps to minimize the amount of material
discharged and to compensate for unavoidable impacts through mitigation.
Section 404 permits consist of two basic types: Individual permits for a particular site and
nationwide (general) permits for categories of discharges that are similar in nature and have no
more than minimal adverse impacts, individually and cumulatively, on the waters of the United
States. If the discharge may have more than minimal impacts, an individual permit is required.
Nationwide permits cover approximately 74,000 activities annually (about 90% of total Corps
permits) and involve less regulatory burden and time than authorization by individual permits.
Disposal of excess overburden associated with mountaintop removal mining has generally been
permitted under Nationwide Permit 21 (NWP 21), which authorizes discharges from surface coal
mining activities that result in no more than minimal impacts (site-specifically and cumulatively)
to the aquatic environment.4 The use of NWP 21 in conjunction with mountaintop mining in the
Appalachian region has been controversial and has been challenged in litigation. The Obama
Administration has proposed to suspend its use and permanently prohibit its use for such specific
activities (these developments are discussed below).
The U.S. Fish and Wildlife Service (FWS) also has responsibilities relevant to mountaintop
removal mining. FWS implements and enforces the Endangered Species Act (35 U.S.C. §1531)
and the Fish and Wildlife Coordination Act (16 U.S.C. §661), and under both laws, agencies
proposing projects affecting U.S. waters are required to consult with FWS to ensure that fish and
wildlife conservation and impacts on threatened or endangered species are considered.
Coordination with FWS is required for both SMCRA and CWA permits.
Criticism and Legal Challenges to
Mountaintop Mining
Because of the increase in valley fill disposal of mountaintop mining overburden in areas of
Appalachia, the practice has drawn public attention and criticism. Critics sayssay that, as a result of
valley fills, streams and the aquatic and wildlife habitat that they support are destroyed by tons of
rocks and dirt. Flow regimes are altered, increasing the likelihood and severity of floods, and the
water quality downstream from fills also is significantly degraded. In addition, mountaintop
removal can crack the walls and foundations of nearby homes; cause dust, noise and vibration
from blasting; collapse drinking water wells; and destroy nearby streams for fishing, hiking,
swimming or aesthetic pleasure. It also has forced the relocation of whole communities. 5
Environmental groups argue that the practice of authorizing valley fills under Section 404 is
unlawful because mining overburden is waste material which pollutes and destroys waterways,
and impacts are far more than minimal, which is the standard for coverage by a nationwide
permit.
4
4
For additional information, see CRS Report 97-223, The Army Corps of Engineers’ Nationwide Permits Program:
Issues and Regulatory Developments, by Claudia Copeland.
5
Daniel L. Rosenberg, “Mountaintop Mining and Proposed Rule Change Will Waste Clean Water Act,” National
Wetlands Newsletter, vol. 22, no. 4, July-August 2000, p. 12.
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Environmental groups argue that the practice of authorizing valley fills under Section 404 is
unlawful because mining overburden is waste material which pollutes and destroys waterways,
and impacts are far more than minimal, which is the standard for coverage by a nationwide
permit.
The mining industry argues that mountaintop mining is essential to conducting surface coal
mining in Appalachia. The poor stability of the soil surrounding coal deposits in this region
makes it impossible to mine the coal using underground mining techniques. Waste disposal in
valley fills is a necessary part of that activity because of the steep topography of the region, and
they assert that mountaintop mining would not be economic or feasible if producers were
restricted from using valleys for the disposal of mining overburden. Requiring Section 402
permits would effectively prohibit a broad range of mining activities which have been allowed by
longstanding practice, they say.
Critics have been using litigation to challenge the practice. In 1998, a West Virginia citizen group
sued the state of West Virginia and the Corps for failure to prevent or enforce against
environmental violations caused by mountaintop removal practices. The principal claim under
SMCRA was that the state was failing to enforce OSM’s buffer zone rule, which protects
intermittent and perennial streams from disturbance by coal mining activities.6 In addition, the
lawsuit asserted that the Corps had been granting permits that allow disposal of waste in waters of
the United States, contrary to the CWA, through permits under the nationwide permit program
that have greater than minimal adverse effects, individually and cumulatively. Some of the claims
were settled when the federal agencies agreed to complete a Programmatic Environmental Impact
Statement (PEIS) of the effects of mountaintop removal mining. The Corps also agreed that
proposed valley fills in West Virginia in watersheds of at least 250 acres must be permitted by
individual, not nationwide, permits.
The remaining claims were addressed in an October 1999 ruling which held that disposal of
mining spoil in valley streams violates federal and state mining rules and the CWA. 7 Under the
ruling, mining spoil was reclassified from “dredge and fill material,” requiring a CWA Section
404 permit, to “waste material” that is subject to CWA Section 402 permit requirements, thus
raising the regulatory hurdles for disposing of mining waste.
Upon appeal, the district court ruling was overturned in a decision that dealt with jurisdiction and
state sovereignty issues. 8 The court held that the stream buffer regulation at issue was, in fact, a
matter of state law, not federal law and, thus, the case should not have been brought in federal
court. The Clinton Administration had sided with the industry by appealing the district court’s
finding that mountaintop mining must be regulated under CWA Section 402, but it concurred with
the related finding, supported by environmental groups, that the activity violates stream buffer
zone requirements under SMCRA. In 2002, the Supreme Court declined to hear a challenge to the
Fourth Circuit decision.
In October 2005, the Corps, EPA, and other federal agencies released a final PEIS on the impacts
of mountaintop mining and valley fills,9 as promised in the 1999 partial settlement of Bragg. It
identified three alternatives for improving coordination of regulatory efforts to limit the negative
6
(...continued)
Wetlands Newsletter, vol. 22, no. 4, July-August 2000, p. 12.
6
The buffer zone rule, last revised in 1983, provided that no land within 100 feet of a perennial or intermittent stream
shall be disturbed by surface mining activities, including the dumping of mining waste, unless the regulatory authority
grants a variance that specifically authorizes surface mining activities closer to or through such a stream. The
regulatory authority must find that the proposed mining activity will not cause or contribute to a violation of applicable
state or federal water quality standards and will not adversely affect water quantity and quality or other environmental
resources of the stream.
7
Bragg v. Robertson, 72 F.Supp.2d 642 (S.D.W.Va. 1999).
8
Bragg v. Robertson, 248 F.3d 275 (CA4 2001).
9
http://www.epa.gov/Region3/mtntop/eis2005.htm.
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zone requirements under SMCRA. In 2002, the Supreme Court declined to hear a challenge to the
Fourth Circuit decision.
In October 2005, the Corps, EPA, and other federal agencies released a final PEIS on the impacts
of mountaintop mining and valley fills,9 as promised in the 1999 partial settlement of Bragg. It
identified three alternatives for improving coordination of regulatory efforts to limit the negative
impacts of mountaintop mining. Under the preferred alternative, OSM, the Corps, EPA, and state
agencies would determine the size, number, and location of valley fills for a proposed operation,
under a joint permit application integrating the CWA and SMCRA programs. The Corps would
make case-by-case determinations whether a project would be covered under NWP 21 or under
an individual Section 404 permit. More than 70,000 public comments were submitted on the draft
PEIS. Industry groups favored continued use of general permit authorizations, while
environmental groups said that the preferred alternative fails to place adequate limits on
mountaintop mining and valley filling. A number of comments were critical that all of the
alternatives were process alternatives, and none would minimize the environmental impacts from
valley fills. The agencies responded that the alternatives were appropriate for a programmatic EIS
and that they would provide increased environmental protection. The agencies also said that a
number of changes to agency rules, policy, and guidelines would follow.
OSM’s Stream Buffer Zone Rule
The 2003 draft PEIS called for OSM to make changes to its stream buffer zone rule to improve
consistency with the Clean Water Act, and OSM proposed changes to that rule in 2004. However,
OSM subsequently decided to prepare a new PEIS and to draft a revised rule, both of which were
released in 2007.10
OSM issued a final revised buffer zone rule in December 2008. As described by OSM, the final rule
rule requires that surface coal mining operations be designed to minimize the amount of spoil placed
placed outside the mined-out area, thus minimizing the amount of land disturbed. It also requires
that, to
the extent possible, surface coal mining and reclamation operations be designed to avoid
disturbance of perennial or intermittent streams and the surface of lands within 100 feet of those
streams. If avoidance is not reasonably possible, the rule requires that the permit applicant
develop and analyze a range of reasonably possible alternatives and select the one that would
have the least overall adverse impact on fish, wildlife, and related environmental values.11
According to OSM, the final rule does not mandate avoiding placement of coal mine waste in or
within 100 feet of perennial or intermittent streams in all cases, because “there is sometimes no
viable alternative to the construction of coal mine waste disposal facilities in perennial or
intermittent streams and their buffer zones, in which case avoidance is not reasonably possible.”12
The final2008 revised rule eliminated the provision in the 1983 stream buffer zone rule that had
required a
finding that the proposed activity would not cause or contribute to a violation of state
or federal
water quality standards. In doing so, OSM said that the previous language more closely
9
http://www.epa.gov/Region3/mtntop/eis2005.htm.
72 Federal Register 48890, August 24, 2007.
10
11
Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Excess Spoil, Coal Mine
Waste, and Buffers for Perennial and Intermittent Streams; Final Rule,” 73 Federal Register 75814-75885, December
12, 2008, p. 75875.
12
Ibid, p. 75833.
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resembled the CWA than the underlying provisions of SMCRA. Because the SMCRA rule does
not substitute for or supersede the CWA, mine operators still must comply with the requirements
of that law.
Both industry and environmental groups reportedly have said that the final rule does little to
change the existing
practice of disposing mountaintop mining spoil into valleys and streams. In
fact, OSM stated that
a key purpose of the rule is to conform the regulation to historic practice of
10
72 Federal Register 48890, August 24, 2007.
11
Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Excess Spoil, Coal Mine
Waste, and Buffers for Perennial and Intermittent Streams; Final Rule,” 73 Federal Register 75814-75885, December
12, 2008, p. 75875.
12
Ibid, p. 75833.
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was to conform the regulation to historic practice of federal and state
authorities. Environmental groups said that the final rule would allow stream
burial and water
quality degradation to continue at current rates; a coalition of these groups filed a
lawsuit lawsuit
challenging the rule.13 The Obama Administration requested that the federal court hearing
this this
case vacate the 2008 stream buffer zone rule and remand it to the Department, in order to
return return
immediately to the more stringent 1983 rule until a replacement rule can be adopted.
However,
the court rejected the Administration’s request in August, thus leaving the 2008 rule in
place until a new rule is issued 2009 (see discussion below,
“Administrative Actions and Congressional
Activity”).
Other Litigation
In other litigation challenging authorization of a specific mountaintop mining operation in
Kentucky (rather than general practice), a federal district court ruled in 2002 that the disposal of
waste from mountaintop
mining into U.S. waters is not allowed under Section 404, and the court
permanently enjoined the
Corps from issuing Section 404 permits for the disposal of mountaintop
mining overburden
where the purpose is solely to dispose of waste. In January 2003, a federal
court of appeals ruled
that the district court’s action was too broad and lifted the injunction
prohibiting the Corps from
issuing Section 404 permits for disposal of mountaintop mining
waste. 14
In 2007, individual permits for four mountaintop mining operations in West Virginia were
overturned by a federal district court. The court found that the probable impacts of the valley fills
would be significant and adverse, that the mitigationsmitigation plans for each permit were not sufficient to
compensate for those adverse impacts, and that the Corps inadequately evaluated the cumulative
impacts of the projects. The Corps appealed the court’s orders, and in February 2009, the court of
appeals reversed and vacated the district court’s actions.15 The court found that the Corps had not
acted arbitrarily or capriciously in its evaluation of the projects’ impacts, and it found the Corps’
proposed mitigation plans sufficient for purposes of complying with the National Environmental
Policy Act (NEPA). One judge on the panel wrote in dissent that in his view the Corps had failed
to establish that the projects will have no significant adverse environmental impact, and thus the
agency had not satisfied the requirements of NEPA. After the court rejected environmentalists’
request for en banc rehearing, in September these groups petitioned the Supreme Court to review
the Fourth Circuit’s ruling.
Citizen groups also have filed lawsuits seeking generally to halt the Corps’ use of Nationwide
Permit 21 for mountaintop mining operations. In the first such case, a federal district court ruled
that NWP 21 violates the Clean Water Act by authorizing activities that have more than minimal
adverse environmental effects. The court enjoined the Corps from using NWP 21 to authorize
new mountaintop mining in southern West Virginia and ordered the Corps to revoke previous
authorization for 11 operations. On appeal, the judgment of the district court and the injunction
against NWP 21 were vacated when the court of appeals found that the Corps had complied with
the Clean Water Act when it promulgated NWP 21.16
13
Coal River Mountain Watch v. USA, case no. 1:08-cv-02212-HHK C, D.D.C., filed December 22, 2008.
Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (CA4 2003).
15
Ohio Valley Environmental Coalition v. Aracoma Coal Company, 556 F.3d 177, (CA 4 2009).
16
Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493 (CA4 2005).
14
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(CA 4 2009).
14
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new mountaintop mining in southern West Virginia and ordered the Corps to revoke previous
authorization for 11 operations. On appeal, the judgment of the district court and the injunction
against NWP 21 were vacated when the court of appeals found that the Corps had complied with
the Clean Water Act when it promulgated NWP 21.16
In the most recent such case, a U.S. district court ruled in March 2009 that, when the Corps issued
Nationwide Permit 21, its analysis of cumulative impacts was inadequate and its reliance on
compensatory mitigation in determining the environmental impacts of valley fills was arbitrary
and capricious.17 The court again enjoined the Corps from using NWP 21 to authorize
mountaintop mining activities in the Southern District of West Virginia. The decision requires that
mining operations operating under Nationwide Permit 21 be halted in that region, but mining
companies can seek individual permits from the Corps or appeal the decision. In June, the Obama
Administration filed a notice of appeal of the district court’s ruling, which officials said was done
for procedural reasons, as no policy decisions had been made.
Administrative Actions and Congressional Activity
Additional controversies arose because of a proposal by EPA and the Corps in 2000 to revise
regulations that implement CWA Section 404 by redefining the terms “fill material” and
“discharge of fill material.” One result of the proposal would be regulatory definitions more
consistent with the Administration’s position in the then-ongoing Bragg litigation, namely its
view that regulating mountaintop removal mining under CWA Section 404 is not inconsistent
with that act. This proposal was not finalized before the Clinton Administration left office but was
finalized by the Bush Administration, substantially as proposed, in May 2002.18
The revised rules were intended to clarify the regulatory definition of fill material—which
determines whether the activity is subject to Section 404 permit requirements or more stringent
Section 402 requirements—by replacing two separate and inconsistent definitions with a single,
common definition to conform with long-standing Corps and EPA practice in regulating surface
mining activities. According to the AdministrationClinton and Bush Administrations, the previous definitional
differences had led to
considerable confusion, as reflected in part in the Bragg and Kentuckians
for the Commonwealth
lawsuits, but that the changes were not driven solely by concerns over
regulating mountaintop
mining practices. Environmental groups continue to contend that the
disposal practice is unlawful
under the Clean Water Act, and that the revised EPA and Corps rules
allow for inadequate
regulation of disposal activities, including coal mining waste.
Recent Administration Actions
The Obama Administration has joined the debate over mountaintop mining. In particular, EPA has
begun reviewing pending CWA permit applications for surface coal mining operations in the
Appalachian states, many of which had been on hold for months in light of the litigation on which
the U.S. Court of Appeals for the Fourth Circuit ruled in February 2009 in 16
Ohio Valley
Environmental Coalition v. Aracoma Coal (see above, “Other Litigation”). Following that ruling,
EPA Administrator Lisa Jackson announced that EPA would review pending mountaintop mining
permit requests to ensure protection of the environment.
17
Environmental Coalition v. Bulen, 429 F.3d 493 (CA4 2005).
Ohio Valley Environmental Coalition v. Dana R. Hurst, 604 F. Supp. 2d 860, (S.D. W. Va. 2009).
18
Department of the Army, Corps of Engineers, and Environmental Protection Agency, “Final Revisions to the Clean
Water Act Regulatory Definitions of ‘Fill Material’ and ‘Discharge of Fill Material,’” 67 Federal Register, No. 90,
May 9, 2002, pp. 31129-31143. For additional background information on the 2002 rule, see CRS Report RL31411,
Controversies over Redefining “Fill Material” Under the Clean Water Act, by Claudia Copeland.
1817
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Appalachian states, many of which had been on hold for months in light of the litigation on which
the U.S. Court of Appeals for the Fourth Circuit ruled in February 2009, Ohio Valley
Environmental Coalition v. Aracoma Coal (see above, “Other Litigation”). Following that ruling,
EPA Administrator Lisa Jackson announced that EPA would review pending surface coal mining
permit requests in Appalachia to ensure protection of the environment.
On June 11, 2009, On June 11, officials of EPA, the Corps, and the Department of the Interior signed a
Memorandum of Understanding (MOU) and Interagency Action Plan (IAP) outlining a series of
administrative actions to reduce the harmful environmental impacts of mountaintop mining. The
plan includes a series of near-term and longer-term actions that emphasize specific steps,
improved coordination, and greater transparency of decisions.19
Also on June 11, EPA and the Corps signed a specific agreement detailing criteria that will be
used to coordinate and expedite review of pending permit applications for surface coal mining
operations in Appalachia (including but not limited to mountaintop mining projects). EPA
identified 79 projects for additional environmental review and developed a joint Enhanced
Coordination Procedure with the Corps for evaluation of the permits. Based on its review, EPA
initial review,
EPA stated that each of the 79 projects, as proposed, is likely to result in significant harm to water
quality,
either individually or cumulatively. EPA cited its responsibilities under the Clean Water
Act as
authority for evaluating 404 permit applications and site-specific environmental
conditions.20
Under the coordination process, the Corps is responsible for beginning discussions
with EPA and
the mining companies to reduce anticipated environmental effects, and generally
the individual
reviews are expected to be completed within 60 days. Before the end of 2009, EPA and the Corps
will jointly issue guidance to strengthen environmental review of mountaintop mining. Mining
industry representatives have vigorously criticized EPA’s actions, saying that they will needlessly
delay important projects, thus negatively affecting both jobs and the nation’s energy security.
OSM’s stream buffer zone rule (discussed above) also is addressed in the IAP. The Department of
of notification by the Corps.
As of April 1, 2010, EPA reviews of five projects had been completed (supporting issuance of
modified permits), the Corps had issued permits for four of the five, and one other EPA review
was underway. Sixteen permit applications had been withdrawn by the applicants, and the
remaining 57 were pending, awaiting Corps notification to begin the formal EPA review. 21
OSM’s stream buffer zone rule (discussed above) also was addressed in the IAP. The Department
of the Interior asked a federal court to vacate the revised rule that was issued by the Bush
Administration in December 2008, saying that the rule does not adequately protect water quality
and stream habitat. OSM officials had hoped to return to using the more stringent 1983 rule until, in
in the longer term, a replacement rule can be developed. As noted above, the court rejected this
request, thus leaving the 2008 rule in place until a new regulation is issued. However, OSM
officials also have stated that because of litigation over the 2008 revisions, states were never
directed to amend their programs to conform with the revisions—thus, states are still operating
under the 1983 rule. Nevertheless, in November, OSM identified a broad set of regulatory options
that it is considering for revising the 2008 rule, ranging from formally reinstating the 1983 rule
with small conforming changes, to requiring stricter buffer zone requirements for mountaintop
mining operations on steep slopes. 22 OSM officials have said that the agency’s goal is to issue a
19
For additional information on these Administration actions, see http://www.epa.gov/owow/wetlands/guidance/
mining.html.
20
For information on the Enhanced Coordination Procedures, including project-specific information, see
http://www.epa.gov/owow/wetlands/guidance/mining-screening.html.
21
For current status of projects under the Enhanced Coordination Procedures, see http://www.epa.gov/owow/wetlands/
guidance/mining-projects.html.
22
Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Stream Buffer Zone and
Related Rules,” 74 Federal Register 62664-62668, November 30, 2009.
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proposed rule by early 2011. EPA and OSM also . EPA and OSM also
have pledged to strengthen oversight of state
CWA and SMCRA permitting, regulation, and
enforcement activities.
On July 15, the Corps published a two-part proposal concerning one aspect of the IAP, the use of
Nationwide Permit 21 (discussed above) in connection with mountaintop mining activities.2123
First, the Corps proposed permanent modification of this NWP to prohibit its use in conjunction
with surface coal mining activities in the Appalachian region. Second, because modification of
the NWP is a long-term process, the Corps also proposed to temporarily suspend NWP 21 for
surface coal mining activities in the Appalachian region in order to quickly halt the use of NWP
21 in the region. Surface coal mining activities in other regions would not be affected. The
proposed suspension and modification would mean that surface coal mining activities in
Appalachia would need to be evaluated through the Corps’ detailed individual permit review
process, rather than under a streamlined nationwide permit. The Corps explained its reason in the
proposal:
19
For additional information on these Administration actions, see http://www.epa.gov/owow/wetlands/guidance/
mining.html.
20
For information on the Enhanced Coordination Process, including project-specific information, see
http://www.epa.gov/owow/wetlands/guidance/mining-screening.html.
21
[T]he Corps now believes that impacts of these activities on jurisdictional waters of the
United States, particularly cumulative impacts, would be more appropriately evaluated
through the individual permit process, which entails increased public and agency
involvement, including an opportunity for public comment on individual projects.24
If the proposal is finalized, current activities authorized under NWP 21 could be grandfathered.
The public comment period on the proposal closed on September 14, 2009.
Guidance on Permitting
EPA and the Corps were expected to jointly issue guidance by the end of 2009 to strengthen
future environmental review of mountaintop mining permits and operations. The agencies missed
that self-imposed deadline, as EPA had been focusing on the reviews of pending permit
applications. Mining industry representatives have vigorously criticized EPA’s actions and
questioned what criteria are being used for permit reviews, saying that the agencies are needlessly
delaying important projects, thus negatively affecting both jobs and the nation’s energy security.
The mining industry, environmental advocates, and elected officials in the affected region all had
been asking for greater clarity.
On April 1, EPA released a 31-page guidance memorandum that seeks to clarify the agency’s
tightened requirements for surface coal mining in Appalachia. The guidance will be applied as a
framework for EPA’s approval of all pending and future reviews for permits to dispose of coal
mining waste. According to EPA, the guidance is not intended to bring a complete halt to
mountaintop removal mining, but it should force the industry to adopt a practice of minimal or
zero filling of valleys with mining debris.
Among other items, the guidance sets strict numeric limits on conductivity levels in waters
affected by mining activities and valley fills. Conductivity is a measure of the level of salinity in
water, which is expressed as microSiemens per centimenter, or µS/cm. In the guidance (and in its
ongoing review of pending Section 404 permit applications), EPA refers to increasing scientific
23
Department of Defense, Department of the Army, Corps of Engineers, “Proposed Suspension and Modification of
Nationwide Permit 21,” 74 Federal Register 34311-34316, July 15, 2009.
24
Id. at 34313.
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[T]he Corps now believes that impacts of these activities on jurisdictional waters of the
United States, particularly cumulative impacts, would be more appropriately evaluated
through the individual permit process, which entails increased public and agency
involvement, including an opportunity for public comment on individual projects.22
If the proposal is finalized, current activities authorized under NWP 21 could be grandfathered.
The public comment period on the proposal closed on August 14, 2009recognition of a strong relationship between elevated conductivity levels in Appalachian streams
and impacts to aquatic life in streams below surface coal mining operations. Based on its review
of recent scientific literature, EPA has concluded that, as a general matter, where conductivity
levels will exceed 500 µS/cm, there is a reasonable potential that aquatic biota will be adversely
affected and applicable water quality standards will be violated, thus establishing this as a likely
upper limit to be allowed in permits. Environmental groups support EPA’s use of conductivity to
assess water quality impacts of coal mining, but industry groups have been highly critical,
asserting that the science linking conductivity to water quality impairment is uncertain and that
acceptable numeric levels are arbitrary. While the April 1 guidance is effective immediately, EPA
also is seeking public comment and could make changes in the future. 25 Conductivity, and its use
in assessing coal mining impacts on water quality, are likely to be a focus of debate and public
comment.
The EPA guidance also references two draft reports produced by EPA’s Office of Research and
Development that were used, together with existing peer-reviewed science, in preparing the
guidance. The first draft report, The Effects of Mountaintop Mines and Valley Fills on Aquatic
Ecosystems of the Central Appalachian Coalfields, assesses the state of the science on the
environmental impacts of mountaintop mines and valley fills on streams in Central Appalachia.
The second, A Field-based Aquatic Life Benchmark for Conductivity in Central Appalachian
Streams, develops a conductivity benchmark value that is intended to protect the biological
integrity of aquatic life in waters in the region. EPA is seeking public comment on the two draft
reports and also has asked a panel of its Science Advisory Board to review the documents. 26
EPA Proposed Veto of a Mountaintop Mining Permit
In addition to directing EPA to issue the environmental guidelines used by the Corps to evaluate
permit applications, CWA Section 404 also authorizes EPA to prohibit or otherwise restrict the
specification by the Corps of a site for the discharge of dredged or fill material, if the agency
determines that the activity will have an unacceptable adverse effect on water supplies, fish,
wildlife, or recreational areas. EPA has used this veto authority, under Section 404(c), only 12
times since 1972, but recently proposed to veto a permit for a mountaintop mining operation in
West Virginia. According to EPA, the Spruce No. 1 mine, as proposed, would be one of the largest
surface mining operations ever authorized in Appalachia and would bury over seven miles of
streams, directly impact 2,278 acres of forestland, and degrade water quality in streams adjacent
to the mine. The Corps issued a permit for the project in 2007, but it was subsequently delayed by
litigation and has been operating on a limited scale since then. EPA acknowledges that the project
has been modified in order to reduce impacts, but the proposed veto is based on the agency’s
conclusion that the project could result in unacceptable adverse impacts to wildlife and fishery
resources.27 If the veto is finalized, it would be the first time that EPA has done so for a permit
25
For the notice and links to the guidance, see U.S. Environmental Protection Agency, “Guidance on Improving EPA
Review of Appalachian Surface Coal Mining Operations under the Clean Water Act, National Environmental Policy
Act, and the Environmental Justice Executive Order,” 75 Federal Register 18500-18501, April 12, 2010.
26
For the notice of public comment period and links to the draft reports, see U.S. Environmental Protection Agency,
“The Effects of Mountaintop Mines and Valley Fills on Aquatic Ecosystems of the Central Appalachian Coalfields and
a Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams,” 75 Federal Register 1849918500, April 12, 2010.
27
U.S. Environmental Protection Agency, “Proposed Determination to Prohibit, Restrict, or Deny the Specification, or
the Use for Specification (including Withdrawal of Specification), of an Area as a Disposal Site; Spruce No. 1 Surface
Mine, Logan County, West Virginia,” 75 Federal Register 16788-16804, April 2, 2010.
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already issued, rather than for a proposed permit issuance. None of the previous vetoes involved a
surface coal mining or mountaintop mining project.
Congressional Actions
Some congressional interest in these issues also has been evident. In June 2002, following
issuance of the revised regulatory definition of “fill material,” the Senate Environment and Public
Works Committee held an oversight hearing to examine the rule, receiving testimony from
Administration, mining industry, and public witnesses.
In the 111th Congress (as in several prior Congresses), legislation to reverse the 2002 revised
regulations that define “fill material” has been introduced (H.R. 1310, the Clean Water Protection
Act). This bill would sharply restrict mountaintop mining by excluding from the definition of “fill
material” any pollutant that is discharged into water primarily for the purpose of disposing of
waste. This provision would allow pollutant discharges that replace portions of the waters of the
United States with dry land or which change the bottom elevation of a water body for any
purpose to be considered fill material. But it would reject the view reflected in the 2002
regulations that some discharges for purposes of waste disposal (including mine overburden)
should be allowable within the definition of fill.
A somewhat narrower legislative approach is contained in another bill in the 111th Congress, the
Appalachia Restoration Act (S. 696). It is similar to H.R. 1310 in that it would define fill material
to include pollutant discharges that replace portions of the waters of the United States with dry
land or which change the bottom elevation of a water body for any purpose. But it would exclude
the disposal of excess spoil material from coal surface mining and reclamation activities, as
described in section 515(b)(22) of SMCRA, in waters of the United States. This provision appears
to allow discharges from some mining practices to be considered fill material, such as hardrock
mining or mining of other minerals such as sand and gravel (thus qualifying for a Section 404
permit), while excluding discharges from surface coal mining activities from the definition of fill
material.
On June 25, 2009, the Senate Environment and Public Works Subcommittee on Water and
Wildlife held
a hearing on the impacts of mountaintop removal coal mining on water quality in
Appalachia.
Public witnesses, including an environmental scientist from the University of
Maryland’s Center
for Environmental Science, described the impacts of mountainmountaintop removal
with valley fills as
immense and irreversible. An EPA witness said that the agency must
reinvigorate its oversight of
state-delegated CWA programs, such as the Section 402 permit
program, to address water quality
issues before Section 404 decisions are made. A witness from
the West Virginia Department of
Environmental Protection said that many in that state are
concerned that ongoing administrative
and possible legislative actions could limit economic
development opportunities for all types of
mining, not just mountaintop mining.
22
Id. at 34313.
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The significance of both bills is that discharges of materials that are not eligible for a Section 404
permit are regulated under CWA Section 402. Because Section 402 discharge requirements are
more restrictive than those for Section 404, some discharges that could be permitted under
Section 404 cannot be authorized under Section 402. Supporters of the bills favor making it more
difficult to use Section 404 to authorize activities that they consider to be environmentally
harmful. On the other hand, critics say that, as a practical matter, economically important
activities such as coal mining could not meet the more stringent limitations of a Section 402
permit and, thus, would be infeasible.
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The Obama Administration’s views on the pending legislation are unknown for now.
Author Contact Information
Claudia Copeland
Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227
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