EPA puts brakes on 3 more mountaintop mining permits

By ERIC BONTRAGER, Greenwire
Published: April 9, 2009

U.S. EPA is objecting to three more federal permits for mountaintop-removal coal mining.

EPA asked the lead federal permitting agency, the Army Corps of Engineers, last week to temporarily hold up two permits for mountaintop-removal operations in West Virginia and another in Virginia.

The permits are for A&G Coal Corp.'s Ison Rock Ridge Surface Mine in Wise County, Va., a Massey Energy mine in Kanawha County, W.Va., and a Frasure Creek Mining operation in Mingo County, W.Va.

EPA expressed concern that the permits would threaten water quality, saying they failed to adequately account for the effects of dumping rock from blasted mountaintops into valley streams and rivers.

Collectively, the three permits would allow the burial of about 8 miles of streams under blasted rock, blocking downstream water supplies and damaging ecosystems.

"Even though ephemeral and intermittent streams may go dry during a portion of the year, they continue to provide habitat for macroinvertebrates and amphibians that utilize the interstitial water flows in the substance below the stream," EPA said in its letter about the Frasure Creek mine, which would fill almost 3 miles of stream.

"Such aquatic resources have been significantly impacted by mining in Southern West Virginia."

The letters come in the wake of EPA's announcement last month that it would review permitting for two coal mining operations in West Virginia and Kentucky (E&ENews PM, March 24).

EPA Administrator Lisa Jackson said then that her agency "will use the best science and follow the letter of the law in ensuring we are protecting our environment."

EPA's announcement followed a 4th U.S. Circuit Court of Appeals decision allowing the corps to issue mountaintop permits without requiring more extensive environmental reviews. The Richmond court's decision overturned a lower court ruling that found the Army Corps failed to require adequate environmental analyses.

The Clean Water Act requires EPA to review Army Corps permits to ensure water-quality protection. The corps slowed its permitting as the litigation was under way, and now must tackle as many as 250 permit proposals.

EPA spokeswoman Enesta Jones said she could not rule out that more permits would soon be reviewed.

The National Mining Association's senior vice president, Carol Raulston, said additional permitting delays could affect the more than 60,000 mining jobs. "This is a continuing concern throughout Appalachia because of the potential job impacts," she said. "You have to have these permits to operate."

Nationwide permit at issue

In its letter on the A&G operation in Virginia, EPA asked the corps to revoke the permit because it was authorized under a streamlined "nationwide permit" and to instead process the application under the Clean Water Act's individual permit process.

Last month, U.S. District Court Judge Joseph Goodwin of the Southern District of West Virginia ruled that the corps had erred in letting coal mining companies dispose of wastes under the streamlined permitting process (Greenwire, April 1).

Goodwin's decision affected nationwide permits for operations in his court district.

Jones said the agency's letter for the A&G operation is unrelated to the ruling. "There is no correlation," she said. "This is part of EPA's normal enforcement of the Clean Water Act."

The Virginia mining operation was of particular concern to environmental groups, which noted that the permit would have filled 3 miles of streams and nine valleys with more than 11 million cubic yards of rock and dirt.

"The days of reckless, unchecked destruction of Appalachian mountains are numbered," said Mary Anne Hitt, deputy director of the Sierra Club's Beyond Coal Campaign, in a statement.

"There is much more work to do, but President Obama's EPA has taken bold action on mountaintop removal coal mining, and we applaud their intervention."

Mark Haviland, chief spokesman for the corps' Norfolk, Va., district, which issued the A&G permit, said the corps was still reviewing EPA's request.

"Obviously our folks in regulatory are going to take a hard look at the permitting and with the regulatory process in general and make a decision then," Haviland said.

Calls to the Army Corps' Huntington, W.Va., district office, which handled the two other permits, were not returned.