New EPA guidelines for review of surface coal mining operations in Appalachia
On April 1, 2010, the EPA issued a set of new guidelines to several of its Regional offices regarding the complianswce 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). 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 go into effect immediately, they will be subjected to review both by the public and by the EPA’s Science Advisory Board, with a set of final guidelines to be issued no later than April 1, 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 CWA Sections 402 and 404, 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 March 2010, the EPA was not able to extend approval of a Section 404 permit for Arch Coal Company’s proposed Spruce No. 1 mountaintop mining operation, because the mine plan proposed the burial of 7.5 miles of healthy headwater streams under the spoil of six separate valley fills. 

The EPA’s new guidelines for surface coal mining operations are not represented in the AEO2010 projections, because they were issued after the cutoff date for model simulations. The likely impact of representing the more intensive reviews of new mining operations would be higher projected prices and lower production for surface-mined coal from Central Appalachia. In the AEO2010 Reference case, coal production at surface mines in Central Appalachia is projected to decline from 115 million tons in 2008 to 71 million tons in 2020 and 63 million tons in 2035.