Mountaintop Mining:
Background on Current Controversies
Claudia Copeland
Specialist in Resources and Environmental Policy
September 21, 2012
Congressional Research Service
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www.crs.gov
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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.
Mountaintop mining is regulated under several laws, including the Clean Water Act (CWA) and
the Surface Mining Control and Reclamation Act (SMCRA).
Critics say that, as a result of valley fills from mountaintop mining, 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 it would not be economically feasible there if operators were
barred from using valleys for the disposal of mining overburden. Critics have used litigation to
challenge the practice. In a number of cases discussed in this report, environmental groups have
been successful at the federal district court level in challenging issuance of permits for
mountaintop mining projects, but each has been later overturned on appeal. Nonetheless, the
criticisms also have prompted some regulatory changes, also discussed here.
In June 2009, 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-term and longer-term actions that emphasize specific steps, improved coordination, and
greater transparency of decisions. The actions are being implemented through regulatory
proposals, guidance documents, and review of applications for permits to authorize surface coal
mining operations in Appalachia. Viewed broadly, the Administration’s combined actions on
mountaintop mining displease both industry and environmental advocates. The additional
scrutiny of permits and more stringent requirements have angered the coal industry and many of
its supporters. Controversy also was generated by EPA’s January 2011 veto of a CWA permit that
had been issued by the Corps for a surface coal mining project in West Virginia. At the same time,
while environmental groups support EPA’s steps to restrict the practice, many favor tougher
requirements or even total rejection of mountaintop mining in Appalachia. Federal courts have
recently rejected several of the Administration’s actions, including overturning EPA’s veto of the
West Virginia mine permit, enhanced permit review procedures, and EPA guidance on factors
used in evaluating water quality impacts of Appalachian surface mining permits.
This report provides background on regulatory requirements, controversies and legal challenges
to mountaintop mining, and recent Administration actions. Congressional interest in these issues
also is discussed, including legislation in the 111th Congress seeking to restrict the practice of
mountaintop mining and other legislation intended to block the Obama Administration’s
regulatory actions. Attention to EPA’s veto of the West Virginia mining permit and other federal
agency actions has increased in the 112th Congress. Several bills have been introduced to clarify
or restrict EPA’s authority to veto CWA permits issued by the Corps (H.R. 457/S. 272; H.R. 517;
H.R. 960/S. 468; and H.R. 2018).
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Mountaintop Mining: Background on Current Controversies
Contents
What Is Mountaintop Mining?......................................................................................................... 1
Regulatory Setting..................................................................................................................... 2
Criticism and Legal Challenges to Mountaintop Mining ................................................................ 3
The “Fill Material” Rule............................................................................................................ 5
OSM’s 2008 Stream Buffer Zone Rule ..................................................................................... 6
Other Litigation ......................................................................................................................... 7
Administrative Actions and Congressional Activity........................................................................ 8
The ECP .................................................................................................................................... 8
The Stream Buffer Zone Rule.................................................................................................... 9
Nationwide Permit 21.............................................................................................................. 10
EPA Guidance on Permitting................................................................................................... 11
EPA Veto of a Mountaintop Mining Permit............................................................................. 13
Congressional Actions ............................................................................................................. 15
Contacts
Author Contact Information........................................................................................................... 17
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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, 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 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. EPA estimates that since 1992 almost 1,200 miles of Appalachian streams were buried
by surface coal mining practices. The cumulative effects of such surface coal mining operations
include deforestation, which has been linked to harm in aquatic communities; accelerated
sediment and nutrient transport; and increased algal production, as well as possible human health
impacts.1
1 Nancy Stoner, Acting 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, Memorandum, July 21, 2011, p. 5, http://water.epa.gov/lawsregs/guidance/wetlands/upload/
Final_Appalachian_Mining_Guidance_072111.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, as well as the quality and
quantity of water in surface and ground water systems both during and after surface coal mining
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, on-site coal preparation facilities, and stormwater discharges
from the mine site. The two permit programs employ different regulatory approaches and criteria.
The NPDES program focuses primarily (but not exclusively) on discharges from industrial
operations and sewage treatment plants. Section 402 permits must include limitations on the
quantities, rates, and concentrations of pollutants, called effluent limitations, 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 CWA.
The 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. This balancing test of probable impacts involves many factors, including
conservation, economics, flood hazards, land use, navigation, energy and mineral needs, and, in
general, the needs and welfare of the people.4 The Corps has considerable discretion, and the
weight of each factor changes with each permit application, depending on the factor’s importance
and relevance to the particular proposal. However, 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.5 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 recently added new environmental restrictions on the use of NWP21 generally,
while permanently prohibiting its use to authorize discharges to construct valleys fills, such as
occurs in the Appalachian region (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 say that, as a result of
valley fills, streams and the aquatic and wildlife habitat that they support are destroyed by tons of
4 33 CFR § 320.4(a)(1).
5 For additional information, see CRS Report 97-223, The Army Corps of Engineers’ Nationwide Permits Program:
Issues and Regulatory Developments, by Claudia Copeland.
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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.6
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 for these activities would effectively prohibit a broad range of mining which has been
allowed by long-standing practice, they say.
Critics have been using litigation to challenge the practice. In a number of cases discussed here,
environmental groups have been successful at the federal district court level in challenging
issuance of permits for mountaintop mining projects, but each has been later overturned on
appeal. Nonetheless, the criticisms also have prompted some regulatory changes, also discussed
below.
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 1983 buffer
zone rule, which protects intermittent and perennial streams from disturbance by coal mining
activities.7 In addition, the lawsuit asserted that the Corps had been granting permits that allowed
disposal of waste in waters of the United States through permits under the nationwide permit
program that have greater than minimal adverse effects, individually and cumulatively, which
plaintiffs argued is contrary to the CWA. Some of the claims were settled when the federal
agencies agreed to complete a Programmatic Environmental Impact Statement (PEIS) on 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.8 Under the
6 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.
7 In order to protect streams from sedimentation and channel disturbance, the 1983 buffer zone rule 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.
8 Bragg v. Robertson, 72 F.Supp.2d 642 (S.D.W.Va. 1999).
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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.9 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,10 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 failed 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.
The “Fill Material” Rule
Controversies also arose following a proposal by EPA and the Corps in 2000 to revise a portion of
the regulations that implement CWA Section 404. The agencies proposed to redefine 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 in May 2002 by the Bush Administration, substantially as proposed in
2000.11
The revision was 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
9 Bragg v. Robertson, 248 F.3d 275 (4th Cir. 2001).
10 http://www.epa.gov/Region3/mtntop/eis2005.htm. The final PEIS was preceded by a draft PEIS issued in 2003.
11 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.
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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 Clinton and Bush Administrations, the previous definitional
differences had led to considerable confusion, as reflected in part in the Bragg and other lawsuits,
but 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.
Following issuance of the revised rule, the Senate Environment and Public Works Committee
held an oversight hearing in the 107th Congress to examine the rule, receiving testimony from
Administration, mining industry, and public witnesses. Legislation intended to reverse the 2002
rule has been introduced in each Congress since then (see “Congressional Actions” below).
OSM’s 2008 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 2007.12
OSM issued a final 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 range of reasonably possible alternatives and select the one that would
have the least overall adverse impact on fish, wildlife, and related environmental values.13
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.”14
The 2008 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
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 said that the final rule did little to change the existing
practice of disposing mountaintop mining spoil into valleys and streams. In fact, OSM stated that
12 72 Federal Register 48890, August 24, 2007.
13 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.
14 Ibid., p. 75833.
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a key purpose of the rule was to reduce confusion about the 1983 rule and to conform the
regulation to historic practice of federal and state authorities. Environmental groups said that the
final rule would actually reduce environmental protection for streams by making it easier for coal
mine operators to obtain exemptions from the stream buffer zone requirement, thus increasing
destructive mining activities in and around streams; a coalition of these groups filed a lawsuit
challenging the rule.15 The Obama Administration requested that the federal court hearing this
case vacate the 2008 stream buffer zone rule and remand it to the department, in order to 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 200916 (see discussion below, “The
Stream Buffer Zone Rule”).
Other Litigation
In other litigation challenging authorization of a specific mountaintop mining operation in
Kentucky (rather than the 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.17
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 mitigation 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.18 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. While this case was pending, uncertainty
over its outcome had effectively blocked the Corps from issuing Section 404 permits in
Appalachia. Thus, the ruling by the court of appeals allowed for resumption of permitting
activities in the region.
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
15 Coal River Mountain Watch v. USA, case no. 1:08-cv-02212-HHK C, D.D.C., filed December 22, 2008.
16 Nat’l Parks Conservation Ass’n v. Salazar, 660 F. Supp. 2d 3 (D.D.C. 2009).
17 Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003).
18 Ohio Valley Environmental Coalition v. Aracoma Coal Company, 556 F.3d 177 (4th Cir. 2009).
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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 21.19
In another recent 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.20 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 2009, 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. At the same time, the
Administration announced a series of administrative actions regarding surface coal mining
operations in Appalachia, including use of Nationwide Permit 21.
Administrative Actions and Congressional Activity
The Obama Administration has joined the debate over mountaintop mining. Early in 2009, EPA
began reviewing CWA Section 404 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, Ohio Valley
Environmental Coalition v. Aracoma Coal (see above, “Other Litigation”). Following that ruling,
EPA Administrator Lisa Jackson announced that, under its CWA authority to comment on 404
permit applications pending at the Corps and its authority to oversee issuance of Section 402
permits by states, EPA would review pending surface coal mining permit requests in Appalachia
to ensure protection of the environment.
On June 11, 2009, 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.21 Many of the Administration’s
actions have been highly controversial, resulting in substantial congressional criticism. Some
have been challenged successfully in court by industry companies and groups, and other legal
challenges continue.
The ECP
Also on June 11, 2009, EPA and the Corps signed a specific agreement detailing criteria to 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). Based on its
authority to evaluate 404 permit applications, EPA identified 79 projects for additional
19 Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493 (4th Cir. 2005).
20 Ohio Valley Environmental Coalition v. Dana R. Hurst, 604 F. Supp. 2d 860, (S.D. W.Va. 2009).
21 For additional information on these Administration actions, see http://water.epa.gov/lawsregs/guidance/wetlands/
mining.cfm.
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environmental review. EPA and the Corps developed a joint Enhanced Coordination Procedure
(ECP) for evaluation of the permits. Of the 79 projects, 49 were located in Kentucky, 23 in West
Virginia, 6 in Ohio, and 1 in Tennessee. EPA stated that each of the 79 projects, as proposed, is
likely to result in significant harm to water quality, either individually or cumulatively. Under the
coordination process, the Corps was responsible for beginning discussions with EPA and the
mining companies to reduce anticipated environmental effects, and generally the individual
reviews were expected to be completed within 60 days of notification by the Corps. As of
September 2011, 50 of the 79 permit applications had been withdrawn without prejudice by the
applicants, and the Corps had issued permits for eight. EPA had sent recommendation letters for
two others, and the 60-day review had begun for one more. The remaining 18 (all located in
Kentucky and West Virginia) were pending, awaiting additional information from the applicant
prior to Corps notification to begin the formal EPA review.
Coal industry groups and coal state officials contended that the ECP process resulted in costly
delay in issuance of permits. They challenged the process in federal court, arguing that EPA and
the Corps had violated the CWA by transferring regulatory authority from the Corps to EPA and
effectively expanding the agency’s veto power over permit decisions and also violated the
Administrative Procedure Act by substantially changing permitting procedures without initiating
a formal rulemaking. Further, they challenged the screening process used to determine whether
pending permits should be subject to the ECP (called the Multi-Criteria Integrated Resource
Assessment, or MCIR Assessment), as well as guidance used by EPA to evaluate the permit
applications (discussed below, “EPA Guidance on Permitting”). EPA has defended the ECP,
saying that the additional coordination between the two agencies has resulted in surface coal
mining projects with reduced environmental, water quality, and human health effects, consistent
with requirements of the CWA.
On October 6, 2011, the court struck down the ECP and the MCIR Assessment as an unlawful
transfer of legal authority from the Corps to EPA.22 Following the ruling, the Corps and EPA
issued memoranda to clarify the roles of both agencies moving forward. While the specific ECP
was set aside, the memoranda stated, the Corps will continue to process applications—including
the 21 pending under the vacated ECP process—in accordance with permitting regulations, and
EPA Regions should continue collaborating with the Corps to review proposed 404 permits.23
The Stream Buffer Zone Rule
OSM’s 2008 stream buffer zone rule (discussed above) also was addressed in the June 2009 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 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
22 National Mining Association v. Jackson, 816 F.Supp. 2d 37 (D.D.C. 2011). This ruling only addressed the ECP and
the MCIR Assessment decision tool. A second part of the litigation, addressing the EPA guidance document, is
pending.
23 Nancy Stoner, Acting Assistant Administrator, U.S. EPA Office of Water, “Transmittal of Department of the Army
Memo on ‘Decision in National Mining Association et al. v. Jackson, et al,’” http://water.epa.gov/lawsregs/guidance/
wetlands/upload/EPA_ECP_memo_DCCruling_11-16-11.pdf.
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were never directed to amend their programs to conform with the revisions—thus, states are still
operating under the 1983 rule.
In November 2009, OSM identified a broad set of regulatory options that it is considering for
revisions to 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.24 OSM officials have been working on developing a new rule and an accompanying
draft environmental impact statement (EIS). The revised rule is expected to apply nationwide, not
just in Appalachia. OSM’s efforts to revise the rule have been criticized, based on concerns about
potential economic impacts of the rule and the quality of work on its EIS. However, OSM
officials and environmental advocacy groups contend that a new rule is needed to protect
waterways from surfacing mining operations. OSM expects to release a draft rule and draft EIS
concurrently, but the agency does not have a timetable for doing so. EPA and OSM also have
pledged to strengthen oversight of state CWA and SMCRA permitting, regulation, and
enforcement activities.
Nationwide Permit 21
As noted previously, disposal of excess overburden associated with mountaintop removal mining
has generally been authorized by the Corps under Nationwide Permit 21 (NWP 21), which
authorizes surface coal mining discharges with no more than minimal impacts to the aquatic
environment. As part of the IAP, in July 2009, the Corps published a two-part proposal
concerning the use of NWP 21 to authorize mountaintop mining activities.25 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:
[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.26
Subsequently, in June 2010, the Corps acted to suspend use of NWP 21 in the Appalachian region
immediately (the second part of the July 2009 proposal) as an interim measure while continuing
to evaluate permanent modification or suspension of the permit. According to the Corps’
announcement, NWP 21 activities in the affected region that had been verified by the Corps prior
to June 18, 2010, would continue to be authorized until March 18, 2012, unless modified on a
24 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.
25 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.
26 Id. at 34313.
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case-by-case basis.27 The Corps estimated that the immediate suspension would affect
approximately six operations that at the time were seeking to use NWP 21; they would then have
to submit applications for individual permits to authorize their activities.
In March 2012, the Corps reissued all of the existing nationwide permits, with modification of a
number of them, including NWP 21.28 The previous version of NWP 21, issued in 2007, did not
have any acreage or linear foot limits and relied on permit conditions and pre-construction
notification reviews to reduce adverse impacts on the aquatic environment. The Corps determined
that this approach has not adequately protected against loss of aquatic resources; thus the reissued
permit adds a ½-acre and 300-linear foot limit for the loss of stream beds when NWP 21 is used.
Further, the reissued permit strictly prohibits use of NWP 21 to authorize discharges of dredged
or fill material into U.S. waters to construct valley fills associated with surface coal mining.
Projects no longer eligible under NWP 21 may seek authorization under a Section 404 individual
permit, which can be issued for longer periods of time than a nationwide permit. The effective
date of the reissued NWPs is March 19, 2012; they will expire on March 18, 2017.
EPA Guidance on Permitting
Throughout the Administration’s review of activities that began in 2009, 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. EPA and the Corps committed to issue guidance to strengthen environmental
review of surface coal mining permits and operations and to clarify applicable criteria.
On April 1, 2010, EPA released a 31-page interim guidance memorandum to clarify the agency’s
tightened requirements for surface coal mining in Appalachia. The guidance would be applied as
a framework for EPA’s approval of all pending and future reviews for permits to dispose of coal
mining waste—through CWA Section 404 permits—and other types of discharges from
Appalachian surface coal mining that are authorized by Section 402/NPDES permits. 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. In addition to applying the guidance to reviewing 404 permits, since late 2010, EPA has
cited the scientific evidence in the guidance in comments and some objections to proposed
NPDES permits for coal mining projects in Kentucky and West Virginia.
Among other items, the document set 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. As conductivity levels
rise, fish, amphibians, mussels, and other aquatic organisms can be adversely affected. In the
guidance (and in its ongoing review of pending Section 404 and 402 permit applications), EPA
refers to increasing scientific recognition of a strong relationship between elevated total dissolved
27 Department of Defense, Department of the Army, Corps of Engineers, “Suspension of Nationwide Permit 21,” 75
Federal Register 117, June 18, 2010.
28 Department of Defense, Department of the Army, Corps of Engineers, “Reissuance of Nationwide Permits,” 77
Federal Register 10184-10290, February 21, 2012. Under the CWA, the previous nationwide permits, which were
issued in March 2007, expire after five years and must be renewed thereafter.
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solids and conductivity levels in Appalachian streams and adverse impacts to aquatic life in
streams and rivers 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 in central Appalachia, 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 2010 interim guidance was effective
immediately, EPA also sought public comment to inform possible future changes to the guidance.
Conductivity, and its use in assessing coal mining impacts on water quality, has become a focus
of debate and public comment.
The EPA interim guidance also referenced two draft reports produced by EPA’s Office of
Research and Development that were used, together with peer-reviewed science, in preparing the
guidance. The first draft report assessed the state of the science on the environmental impacts of
mountaintop mines and valley fills on streams in Central Appalachia. The second developed a
conductivity benchmark value that is intended to protect the biological integrity of aquatic life in
waters in the region.
At EPA’s request, the agency’s Science Advisory Board (SAB) conducted evaluations of the EPA
scientific documents, in view of the reports’ likely importance to regulatory actions. The panel
agreed with EPA’s overall conclusions that there is strong evidence for a causal relationship
between mountaintop mining/valley fills and harm to downstream water quality and to biological
impacts on organisms that live in and on the bottom of streams. The panel also concluded that
there is clear evidence that valley fills are associated with increased levels of dissolved ions
(measured as conductivity) in downstream waters and that these increased levels of conductivity
are associated with changes in the composition of stream biological communities.
For both reports, the SAB panel made a number of recommendations to strengthen both the
supportive and the cautionary aspects of its comments on the EPA draft documents. For example,
the conductivity report derives a benchmark that is intended to avoid the extinction of native
species exposed to mountaintop mining/valley fills in Appalachian streams. The SAB panel stated
that because the complete loss of a genus is an extreme ecological effect, it may be appropriate to
develop a more appropriate endpoint recognizing less severe, but still significant, effects that
occur at lower exposure levels. A consequence of doing so could be EPA’s adoption of a more
protective conductivity benchmark than contained in the April 2010 guidance described above
and application beyond Appalachian mountaintop mines, at least in areas where sufficient data
exist. At the same time, the SAB told EPA that the reports need to be clarified to emphasize that
both conductivity and total dissolved solids (both referring to an increase in salinity in otherwise
dilute freshwater) are “coarse” indicators of water quality, because of confounding factors such as
the presence of other elements, and should not be used exclusively as surrogates for water quality.
Thus, the SAB supported conductivity along with other field-based tests and cautioned that EPA
should not over-rely on conductivity tests; the agency needs to weigh a variety of environmental
factors in its assessments. Based on the SAB reviews, EPA released final versions of the two
scientific reports in March 2011.29
29 The final EPA reports are entitled The Effects of Mountaintop Mines and Valley Fills on Aquatic Ecosystems of the
Central Appalachian Coalfields (EPA/600/R-09/138F) and A Field-Based Aquatic Life Benchmark for Conductivity in
(continued...)
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The April 2010 interim guidance has been very controversial. Environmental advocates defend
EPA’s implementation of the guidance as a way to protect streams from the harmful effects of
surface coal mining in Appalachia. But industry and some states oppose EPA’s efforts. Lawsuits
were brought by the states of Kentucky and West Virginia, and were consolidated with the
litigation brought by coal companies and trade associations over the ECP process (National
Mining Association v. Jackson, discussed above). They argue that the conductivity benchmark is
set below background levels for some healthy streams in the region, making it too difficult to
achieve. The lawsuits also argue that the guidance is an attempt to write new rules without
following the notice-and-comment requirements of the Administrative Procedure Act. In January
2011, a federal judge denied industry’s request to block implementation of the guidance, but also
denied the government’s request to dismiss the case.30
EPA released final guidance to improve the agency’s review of Appalachian surface coal mining
operations on July 21, 2011.31 The final document retains the same numeric limits on conductivity
as in the interim guidance. However, EPA officials describe the final guidance as including
considerable flexibility, based on considering public comments and experience in implementing
the interim guidance since April 2010. For example, the final guidance reflects the SAB’s
recommendations that the specific conductivity limits not be used outside waters of West Virginia
and Kentucky, until the limits can be scientifically verified as applicable to other waters. Further,
the final guidance acknowledges that at sites where the strict conductivity limits cannot be
attained, EPA may recommend alternative permit conditions such as limits on individual ions,
specifying particular best management practices for mining project design to minimize harmful
impacts, or allowing for offsets in some circumstances. Environmental groups endorsed the final
guidance, saying that it is key to strengthening permitting processes. Industry groups continue to
argue that EPA has unlawfully expanded its statutory authority and infringed on the role of states.
On July 31, 2012, a federal judge issued summary judgment for mining industry and state
plaintiffs who had challenged EPA’s use of the guidance.32 The court rejected the government’s
arguments that the guidance is a nonbinding document to help EPA assess whether a mine’s
actions would violate CWA standards. Instead, the court agreed with plaintiffs’ contentions that
the guidance is being implemented as binding and having a practical effect on the permitting
process for new Appalachian surface coal mining projects. Further, the court concluded that the
guidance impermissibly sets a conductivity criterion for water quality standards, overstepping
authority that the CWA assigns to states. The government is expected to appeal both this ruling
and the same court’s October 2011 invalidation of the ECP process but has not yet done so.
EPA 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(b)), 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
(...continued)
Central Appalachian Streams (EPA/600/R-10/023F). Both are available at http://www.epa.gov/ncea. The SAB’s
reviews are available under “reports” at http://yosemite.epa.gov/sab/sabpeople.nsf/WebCommittees/BOARD.
30 National Mining Association v. Jackson, 768 F.Supp. 2d 34 (D.D.C. 2011).
31 See http://www.epa.gov/owow/wetlands/guidance/mining.html.
32 National Mining Association v. Jackson, D.D.C., No. 1:10-cv-1220, July 31, 2012.
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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. None of the previous vetoes involved a surface coal
mining or mountaintop mining project.
On January 13, 2011, the agency reached a determination to veto a permit for a mountaintop
mining operation in West Virginia. According to EPA, the Spruce No. 1 mine in Logan County,
West Virginia, as proposed, would be one of the largest surface mining operations ever authorized
in Appalachia, and waste disposal from the mine 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 veto determination is based on the agency’s
conclusion that the project could result in unacceptable adverse impacts to wildlife and fishery
resources.33 Some of the water quality problems cited in EPA’s veto of the permit are from
increased loads of pollutants that the project would discharge—particularly selenium and total
dissolved solids—which contribute to increased stream conductivity, the same adverse impact
cited by EPA in the permitting guidance document discussed above.
EPA’s veto of the permit has been very controversial, in part because it involves cancelling a
permit previously issued by the Corps.34 Coal industry groups and organizations representing
manufacturing and other sectors have been highly critical of EPA’s actions, many saying that to
revoke an existing permit creates huge uncertainty about whether water quality permits would be
rescinded in the future, producing a ripple effect beyond the coal industry.
The owner of the site, the Mingo Logan Coal Company, challenged EPA’s action in federal court,
even before the veto was finalized. EPA argued that the veto, while highly unusual, is justified
because the project involves unacceptable environmental impacts. The agency said that it is not
currently reviewing any other previously authorized Appalachian surface coal mining project
pursuant to Section 404(c). In March, a federal district court agreed with the industry petitioners
and concluded that the CWA does not give EPA the power to render a permit invalid once it has
been issued by the Corps. Although the language of 404(c) is “awkwardly written and extremely
unclear,” the court found EPA’s view that it has such authority an unreasonable interpretation of
the statute.35 Thus, it overturned the veto.
The government has appealed the district court’s ruling, and a streamlined briefing schedule has
been set by the U.S. Court of Appeals for the D.C. Circuit.
Viewed broadly, the Administration’s combined actions on mountaintop mining displease both
industry and environmental advocates. The additional scrutiny of permits, more stringent
33 U.S. Environmental Protection Agency, “Final Determination of the Assistant Administrator for Water Pursuant to
Section 404(c) of the Clean Water Act Concerning the Spruce No. 1 Mine, Logan County, WV; Notice,” 76 Federal
Register 3126-3128, January 19, 2011. The Final Determination and related materials are available at
http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/spruce.cfm.
34 There is some ambiguity about whether it is the first EPA veto of a previously issued permit. Initially, EPA said that
the agency had never done so, but agency officials subsequently have cited the 1981 veto of a project in North Miami
Beach, FL, and a 1992 veto for a municipal water supply reservoir project. The facts of those cases differ from the
Spruce No. 1 mine case and did not involve a surface mining project.
35 Mingo Logan Coal Co. v. EPA, D.D.C., No. 1:10-cv-541, March 23, 2012.
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requirements, and EPA’s veto of a previously authorized project have angered the coal industry
and many of its supporters. At the same time, while environmental groups support the veto and
EPA’s steps to restrict the practice, many favor tougher requirements or even total rejection of
mountaintop mining in Appalachia.
So far, the Administration has not fared well when federal courts have reviewed its stepped-up
actions involving Appalachian surface mining. As described above, courts have ruled that OSM
exceeded its authority in seeking to revise the stream buffer rule without complete administrative
procedures, and that EPA exceeded its authority by using the Enhanced Coordination Process (the
ECP) and the agency’s 2011 permitting guidance, as well as by its veto of the Spruce No. 1 mine
permit.
Congressional Actions
Congressional interest in these issues also has been evident and has increased substantially in the
112th Congress.
In the 112th Congress (as in several prior Congresses), legislation to reverse the 2002 revised
regulations that define “fill material,” discussed previously, has been introduced (H.R. 1375, 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.
Legislation similar to H.R. 1375 was introduced in the 111th Congress (H.R. 1310). A somewhat
narrower legislative approach was contained in another bill in the 111th Congress, the Appalachia
Restoration Act (S. 696). It was similar to H.R. 1310 in that it would have defined 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 have
excluded 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 appeared 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.
In June 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 mountaintop 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.
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The significance of both bills in the 111th Congress was 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 favored making it more difficult to use Section 404 to authorize activities that they consider
to be environmentally harmful. On the other hand, critics said 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.
Additionally, legislation focused on the Obama Administration’s regulatory actions on
Appalachian coal mining also was introduced in the 111th Congress (H.R. 6113, and S. 3933 , the
Electricity Reliability Protection Act of 2010). This bill would have prohibited EPA, the Army
Corps, and OSM from administering or enforcing any policy or procedure that was announced in
the June 2009 MOU or the April 2010 EPA permitting guidance unless they are contained in
promulgated regulations. Critics of the Administration’s actions have argued that the policies
constitute rules, and thus should be subject to complete administrative requirements of
rulemaking, including public notice and comment and subsequent judicial review.
In the 112th Congress, similar legislation has not been introduced, but was included as an
amendment to a House-passed bill providing FY2011 appropriations for EPA and other agencies
(H.R. 1). The amendment would have prohibited funding for a number of EPA regulatory
activities discussed previously in this report, including implementation of the regulatory
initiatives on mountaintop mining in Appalachia.36 However, the full-year FY2011 appropriations
bill enacted in April 2011 did not include that provision (P.L. 112-10). Several similar provisions
were included in FY2012 appropriations bills considered by the House (H.R. 2354, providing
funding for the Corps, and H.R. 2584 to fund EPA), but none of the language was included in an
omnibus appropriations bill providing full-year FY2012 funding for EPA, the Corps, and other
agencies that Congress enacted in December 2011 (P.L. 112-74).
As noted above, EPA’s January 2011 veto of a Section 404 permit for the Spruce No. 1 mine in
West Virginia—overturned by a federal court in March 2012—has been very controversial,
including in Congress. In the 111th Congress, legislation was introduced to delete Section 404(c)
from the CWA (H.R. 5992), thus removing EPA’s authority to veto permits for projects, but no
further action occurred. Similar legislation has been introduced in the 112th Congress (H.R. 517).
In addition, other bills have been introduced that are intended to address the veto of the Spruce
No. 1 mine project. One proposal would bar EPA from using the 404(c) authority “after the fact,”
that is, after the Corps has issued a 404 permit (H.R. 457/S. 272). A second proposal would
similarly prohibit retroactive vetoes and also would set deadlines for EPA’s 404(c) authority and
clarify procedures for elevating 404 permitting decisions to higher level agency and department
officials, based on consultation with and consent of affected states (S. 468/H.R. 960). A third
proposal (H.R. 2018) would modify a number of CWA provisions; one would prohibit EPA from
vetoing a 404 permit without concurrence of the state in which the discharge originates and
would require EPA to submit any comments on a Corps-proposed 404 permit within 60 days
(currently there is no statutory time limit); the House passed this bill on July 13, 2011.
36 For information, see CRS Report R41698, H.R. 1 Full-Year FY2011 Continuing Resolution: Overview of
Environmental Protection Agency (EPA) Provisions, by Robert Esworthy.
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The House Transportation Subcommittee on Water Resources and Environment held oversight
hearings on these issues in May 2011, and the House Oversight and Government Reform
Subcommittee on Regulatory Affairs held similar hearings in July 2011 and July 2012.
OSM’s efforts to revise the 2008 stream buffer zone rule also have been controversial. The House
Natural Resources Committee has held several hearings to air concerns that the expected rewrite
of the rule would have harmful job impacts on surface coal mining. In September 2012, the
House passed legislation (H.R. 3409) to limit the authority of the Secretary of the Interior to issue
a revised rule. As passed by the House, this bill also included the text of H.R. 2018, previously
passed by the House, and a provision similar to H.R. 457. (Both of these bills are described
above.) Similar legislation has been introduced in the Senate (S. 3450) and also is included as a
provision of another Senate bill (S. 3445).
The Obama Administration did not present formal views on any of the legislation in the 111th
Congress, but the Administration did express strong opposition to H.R. 2018 and H.R. 3409 in the
112th Congress.37
Author Contact Information
Claudia Copeland
Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227
37 Executive Office of The President, Office of Management and Budget, “Statement of Administration Policy, H.R.
2018” July 12, 2011, http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr2018r_20110712.pdf.
Executive Office of The President, Office of Management and Budget, “Statement of Administration Policy, H.R.
3409,” September 19, 2012,
http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr3409r_20120919.pdf.
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