Legislation and regulations

Representing impacts of the U.S. EPA's interim permit review guidelines for surface coal mining operations

In April 2010, the EPA issued a set of new guidelines to several of its regional offices for monitoring the compliance of surface coal mining operations in Appalachia with the provisions of the Clean Water Act (CWA), the National Environmental Policy Act, and the environmental justice Executive Order (E.O. 12898) [36]. The stated purpose of the guidance was to explain more fully the approach that the EPA will be following in permit reviews and to provide additional assurance that its regional offices use clear, consistent, and science-based standards in reviewing the permits. Although the new guidelines went into effect immediately, they were subjected to review both by the public and by the EPA's Science Advisory Board, with a set of final guidelines to be issued in the spring of 2011.

Issuance of the new EPA guidelines is related primarily to the ongoing controversy over use of the mountaintop removal method at a number of surface coal mining operations in Central Appalachia—primarily in southern West Virginia and eastern Kentucky. Although the guidelines propose a more rigorous review for all new surface coal mines in Appalachia, the EPA indicates that the practice of valley fills, primarily associated with the mountaintop removal method, is the aspect of Appalachian coal mining that will be most scrutinized. In particular, the EPA points to new scientific evidence that dissolved solids in drainage from existing valley fills in Central Appalachia are adversely affecting downstream aquatic systems.

Although the proposed use of valley fills at mining sites will not necessarily preclude the issuance of permits for surface mines under Sections 402 and 404 of the CWA, the EPA guidelines recommend that all practicable efforts be made to minimize their use. Section 402 of the CWA pertains to the issuance of National Pollution Discharge Elimination System permits. Section 404 relates to the issuance of permits for the discharge of dredge or fill material into the waters of the United States, including wetlands. Issuance of Section 404 permits comes under the authority of the U.S. Army Corps of Engineers but is subject to EPA oversight.

Two recent actions by the EPA related to its review of Section 404 permits for proposed mountaintop mining operations in West Virginia indicate the Agency's heightened concern with regard to valley fills. In January 2010, the EPA announced its approval for the issuance of a Section 404 permit for Patriot Coal's proposed Hobet 45 mountaintop mining operation. The EPA indicated that the company was able to eliminate the need for any valley fills and, as a result, reduce the estimated adverse downstream impact by 50 percent.

In contrast, in January 2011, the EPA issued a final determination effectively denying a Section 404 permit for Arch Coal Company's Spruce No. 1 mountaintop mining operation, which would have resulted in the burial of 6.6 miles of headwater streams under the spoil of four separate valley fills [37]. Although a Section 404 permit for the mine was approved by the U.S. Army Corps of Engineers in January 2007, the EPA indicated that additional information had been obtained since then about its earlier concerns related to the project. The EPA indicated that its action to deny four of the six valley fills proposed for the Spruce No. 1 mine would protect not only wildlife in the parts of streams directly affected by the proposed mining operation but also the aquatic wildlife communities downstream from the project site. As was the case with the Hobet 45 mine, the EPA requested that Arch Coal submit possible corrective actions to the Spruce No. 1 mine plan to mitigate environmental impacts. Primarily on the basis of economic considerations, Arch Coal declined to offer additional changes to the proposed plan for the mine.

In AEO2011, the impact of the EPA's April 2010 guidelines for surface coal mining operations is represented by downward adjustments to the coal mining productivity assumptions for Central Appalachian surface mines (Figure 5), resulting in slightly higher estimated production costs for the region and mine type. The assumed productivity levels for Central Appalachian surface mines are roughly 15 to 20 percent lower than those that would have been used for a case without the EPA's new permit review guidelines. The revised productivity levels are based on the assumption that large surface mining operations will decline gradually toward the productivity levels for smaller surface mines in the region as a result of the more restrictive guidelines for overburden management at large mountaintop mining operations. No adjustments were made to the productivity assumptions for other Appalachian supply regions in response to the new EPA permit review guidelines, because few if any surface mining operations in other regions employ the mountaintop removal method.

figure data