Order Code RS21421
Updated February 1, 2005
CRS Report for Congress
Received through the CRS Web
Mountaintop Mining:
Background on Current Controversies
Claudia Copeland
Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division
Summary
Mountaintop removal mining involves removing the top of a mountain in order to
recover the coal seams contained there. This practice occurs in several Appalachian
states. 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 economic or 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. This report
provides background on current controversies, regulatory requirements, and legal
challenges to Clean Water Act regulation of mountaintop mining. Congressional
attention to these issues also is discussed. It will be updated as warranted by events.
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 several Appalachian states, especially in West Virginia.
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
Congressional Research Service ˜ The Library of Congress

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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 clean-burning, 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, known as draglines, that are capable of moving over
100 cubic yards of earth in a single scoop.
Until recent 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 were
covered by valley fills and 1,200 miles of headwater streams were directly impacted by
mountaintop mining activities.1
Regulatory Setting. Regulation of valley fills associated with mountaintop
removal mining is primarily under the authority of two federal statutory programs, the
Surface Mining Control and Reclamation Act (SMCRA, 25 U.S.C. §1201) and the Clean
Water Act (CWA, 33 U.S.C. §1252), and involves several federal and state agencies.
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. Permits for surface mining may be
issued under SMCRA by the Office of Surface Mining (OSM), U.S. Department of the
Interior, or by 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 well as the quality and quantity of
water in surface and ground water systems both during and after surface coal mining
operations.
1 U.S. Army Corps of Engineers et al. “Mountaintop Mining/Valley Fill Draft Environmental
Impact Statement.” 2003. Pp. ES-3-ES-4.
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.

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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 The two permit programs employ different regulatory approaches.
The NPDES program is focused 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
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 have no more than
minimal adverse impacts 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 delay 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 U.S. Fish and Wildlife Service (FWS) also has responsibilities relevant to
mountaintop removal mining. FWS implements and enforces the Endangered Species
3 The CWA authorizes delegation of both of these permit programs to qualified states. The
NPDES program has been delegated to 45 states, including each of the Appalachian states. The
Section 404 program has been delegated to two states, neither in central Appalachia (Michigan
and New Jersey).
4 For additional information, see CRS Report 97-223, Nationwide Permits for Wetlands Projects:
Regulatory Developments and Current Issues, by Claudia Copeland.

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Act (35 U.S.C. §1531), and under the Fish and Wildlife Coordination Act (16 U.S.C.
§661), agencies proposing projects affecting U.S. waters are required to consult with FWS
to ensure that fish and wildlife conservation is considered along with other features.
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 says
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; 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.
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 recently been using litigation to challenge the practice. In 1998, a West
Virginia citizen group filed a lawsuit in federal court against 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 the Surface Mining Act was
that the state was failing to enforce the Act’s buffer zone rule, which protects intermittent
and perennial streams from disturbance by coal mining activities. 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, and 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 (EIS) 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 by the court in an October 1999 ruling which
held that disposal of mining spoil in valley streams violates federal and state mining rules
and the CWA. (Bragg v. Robertson, 72 F.Supp.2d 642 (S.D.W.Va. 1999)). Under the
5 Rosenberg, Daniel L. “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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ruling, mining spoil was reclassified from its current description as “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 (Bragg v. Robertson, 248 F.3d
275 (CA4 2001)) in a decision that dealt with jurisdiction and state sovereignty issues.
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 environmentalists, that the activity
violates stream buffer zone requirements under the Surface Mining Act. In January 2002,
the Supreme Court declined to hear a challenge to the 4th Circuit decision.
In May 2003, the Corps, EPA, and other federal agencies released a draft EIS on
mountaintop mining, as promised in the 1999 partial settlement of the Bragg litigation.
It identified three alternatives for improving coordination of efforts to limit the negative
impacts of mountaintop mining, as well as a “no action” alternative. Under the draft
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. The Corps would determine whether a project would be covered under NWP
21 or under an individual Section 404 permit. More than 70,000 public comments on the
draft EIS were submitted, with industry groups favoring 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. Among the comments was a
letter from 19 House Members, criticizing the preferred alternative in part for giving OSM
a greater role in CWA permitting decisions. A final EIS could be issued in 2005. The
draft EIS also called for OSM to make changes to the stream buffer zone rule, authorized
under SMCRA, to improve consistency with the Clean Water Act. OSM proposed
changes to the rule in January 2004; a final rule has not yet been issued.
A second lawsuit challenging issuance of a specific permit under the nationwide
permit program for a mountaintop mining operation in Kentucky was decided in May
2002 (Kentuckians for the Commonwealth v. Corps of Engineers, 204 F.Supp. 2d 927
(S.D. W.Va. 2002)). The federal district court ruled that the disposal of waste from
mountaintop mining into U.S. waters is not allowed under Section 404, and 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, the
4th U.S. Circuit Court of Appeals ruled that the district court’s action was too broad, and
the appeals court lifted the injunction prohibiting the Corps from issuing Section 404
permits for disposal of mountaintop mining waste (Kentuckians for the Commonwealth
v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003)).
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 (Ohio Valley Environmental
Coalition v. Bulen, S.D. W.Va., Civ. Action No. 3:03-228, 7/8/2004). The court barred
the Corps from using NWP 21 to authorize new mountaintop mining in southern West

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Virginia and ordered the Corps to revoke previous authorization for 11 operations. In
January 2005, three Kentucky groups filed a lawsuit to extend the West Virginia decision
to Kentucky valley fills.
Administrative Actions and Congressional Activity
Additional controversies arose because of a proposal by EPA and the Corps in April
2000 to revise regulations that implement CWA Section 404 by redefining the terms “fill
material” and “discharge of fill material.” One effect of the agencies’ 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 proposed rule was not
finalized before the Clinton Administration left office but was finalized by the Bush
Administration, substantially as proposed, in May 2002.6
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 Administration,
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 rules allow for inadequate regulation of disposal
activities, including coal mining waste.
Some congressional interest in these issues has been evident. On June 6, 2002,
following issuance by the Corps and EPA of revised regulations defining “discharge of
fill material,” the Senate Environment and Public Works Committee held an oversight
hearing to examine the rules, receiving testimony from Administration, mining industry,
and public witnesses. Legislation to overturn the revised regulations was introduced in
the 107th Congress and again in the 108th Congress (H.R. 738), but no further action
occurred.
In addition, mining industry groups and others initially sought a legislative remedy
for the U.S. district court’s ruling in the Bragg case, which was later vacated. Late in
1999, during debate on omnibus FY2000 appropriations legislation, Senator Robert Byrd
proposed legislative language that would have provided a two-year environmental waiver
to allow mountaintop coal mining in West Virginia to continue. The provision passed as
an amendment to a short-term continuing resolution (H.J.Res. 82), but it was not included
in the final bill, the Consolidated Appropriations Act for FY2000 (P.L. 106-113).
6 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
information, see CRS Report RL31411, Controversies over Redefining “Fill Material” under the
Clean Water Act, by Claudia Copeland.

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