.
Mountaintop Mining: Background on Current
Controversies
Claudia Copeland
Specialist in Resources and Environmental Policy
April 20, 2009
Congressional Research Service
7-5700
www.crs.gov
RS21421
CRS Report for Congress
P
repared for Members and Committees of Congress
c11173008
.
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 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 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 and the Surface Mining
Control and Reclamation Act. This report provides background on regulatory requirements,
controversies, and legal challenges to regulation of mountaintop mining. Congressional attention
to these issues, including legislation that would restrict the practice (H.R. 1310, the Clean Water
Protection Act, and S. 696, the Appalachia Restoration Act), also is discussed.
Congressional Research Service
.
Mountaintop Mining: Background on Current Controversies
Contents
What Is Mountaintop Mining?..................................................................................................... 1
Regulatory Setting ................................................................................................................ 2
Criticism and Legal Challenges to Mountaintop Mining .............................................................. 3
OSM’s Buffer Zone Rule ...................................................................................................... 5
Other Litigation .................................................................................................................... 6
Administrative Actions and Congressional Activity ..................................................................... 7
Contacts
Author Contact Information ........................................................................................................ 8
Congressional Research Service
.
Mountaintop Mining: Background on Current Controversies
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, and Tennessee.
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 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 (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/mtm-
vf_fpeis_summary.pdf.
Congressional Research Service
1
.
Mountaintop Mining: Background on Current Controversies
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
well as the quality and quantity of water in surface and ground water systems both during and
after surface coal mining operations.
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 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.
Congressional Research Service
2
.
Mountaintop Mining: Background on Current Controversies
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 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 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
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.
Congressional Research Service
3
.
Mountaintop Mining: Background on Current Controversies
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
4th 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
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.
Congressional Research Service
4
.
Mountaintop Mining: Background on Current Controversies
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 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 revised buffer zone rule in December 2008. As described by OSM, the final rule
requires that surface coal mining operations be designed to minimize the amount of spoil 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 reasonable 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 final 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
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
federal and state authorities. Environmental groups said that the final rule would allow stream
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.
Congressional Research Service
5
.
Mountaintop Mining: Background on Current Controversies
burial and water quality degradation to continue at current rates; a coalition of these groups filed a
lawsuit challenging the rule.13
Other Litigation
In other litigation challenging authorization of a specific mountaintop mining operation in
Kentucky, 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 mitigations 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. The district court’s injunction of activity
under the four permits remains in effect because the environmental groups have asked the full
appeals court to hear the case.
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 NWP21.16
In the most recent such case, a U.S. district court found 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
13 Coal River Mountain Watch v. USA, case no. 1:08-cv-02212, D.D.C., filed December 22, 2008.
14 Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (CA4 2003).
15 Ohio Valley Environmental Coalition v. Aracoma Coal Company, No. 07-1355 (CA4, Feb. 13, 2009).
16 Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493 (CA4 2005).
17 Ohio Valley Environmental Coalition v. Dana R. Hurst, Civil Action No. 3:03-2281 (S.D.W.Va. Mar. 31, 2009).
Congressional Research Service
6
.
Mountaintop Mining: Background on Current Controversies
operating under nationwide permit 21 be halted in that region, but mining companies can seek
individual permits from the Corps or appeal the decision.
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 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 EPA and Corps rules allow for inadequate
regulation of disposal activities, including coal mining waste.
The Obama Administration has joined the debate over mountaintop mining. On March 23, EPA
officials sent letters to the Corps indicating significant concerns about the impacts of two
mountaintop mining fill projects in West Virginia and Kentucky. In both cases, EPA raised
concerns about likely violations of downstream water quality standards and about “persistent and
permanent impacts to the aquatic ecosystem” that cannot be sufficiently or effectively
compensated through proposed mitigation, in EPA’s view. The agency recommended specific
actions to reduce adverse impacts of the projects and to improve mitigation. Similar letters
concerning three other mountaintop mining permits (two in West Virginia and one in Virgina)
were sent by EPA to the Corps in April. EPA Administrator Lisa Jackson announced that EPA will
review other mountaintop mining permit requests to ensure protection of the environment.
Mining industry representatives criticized EPA’s announcement, saying that the agency’s actions
would negatively affect both jobs and the nation’s energy security.
Some congressional interest in these issues 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 has been introduced (H.R. 1310,
the Clean Water Protection Act). This bill would sharply restrict mountaintop mining by
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.
Congressional Research Service
7
.
Mountaintop Mining: Background on Current Controversies
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 non-surface coal mining (thus qualifying for a Section 404 permit), while excluding
discharges from surface coal mining activities from the definition of fill material.
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
Congressional Research Service
8