Coal Tattoo

Obama EPA got early start on mountaintop removal


Questions and controversy continue to swirl around the Obama administration’s plans for dealing with the mountaintop removal issue.

But it now appears that the Obama EPA got a much earlier start than we thought in raising much stronger objections to mountaintop removal permits than the Bush administration’s regulators ever did.

In fact, the effort to more closely examine — and to object to and perhaps block — U.S. Army Corps of Engineers permits for valley fills appears to have started the same day that President Barack Obama took the oath of office.

On Jan. 20, EPA Region 3 officials in Philadelphia sent a letter to Ginger Mullins, chief of the regulatory branch at the Corps District office in Huntington, objecting to issuance of a valley fill permit for CONSOL of Kentucky’s Buffalo Mountain Surface Mine. I’ve posted the letter here and a copy of the Corps’ public notice on that permit here. Take a look — it calls for burying more than 8 miles of streams, including more than 2 miles of perennial streams and more than 4 miles of perennial streams.

Remember that when EPA announced its crackdown on mountaintop removal permits last week, a news release from the agency mentioned two permits EPA was concerned about, one in West Virginia and one in Kentucky.  Coal Tattoo later learned about a third permit objection letter, this one also in West Virginia.


Interestingly, this CONSOL of Kentucky permit is connected to the King Coal Highway, the project to build a new road along the route of U.S. 52 from Huntington to near Bluefield. The project is a favorite of most local and state politicians, and a move to further delay it would be unpopular with some powerful folks.

EPA’s objection letter is also noteworthy, because Pittsburgh-based CONSOL has tried for years to stay above the fray in the mountaintop removal battle, focusing on its huge and efficient underground mines in northern West Virginia and western Pennsylvania. But CONSOL jumped in with both feet two years ago, when it bought AMVEST, and with it Fola Coal Co.’s sprawling mountaintop removal mine along the Clay-Nicholas County border in West Virginia. The company has already been caught up in some of the litigation before U.S. District Judge Robert C. Chambers. And, as my buddy Don Hopey at the Pittsburgh Post-Gazette has reported, EPA is taking a much closer look — but has not yeat formally objected to — a CONSOL permit in Greene County, Pa., to dispose of waste rock from underground mines in valley fills.

In the King Coal Highway project, according to permit documents, the purpose of the CONSOL proposal is to “discharge dredged/fill material to construct attendant and associated features to facilitate efficient extraction of 16,784,000 tons of coal reserves in the SMCRA permitted area and line and rough grade for a portion of the King Coal Highway.” The EPA letter explains:

A compensatory mitigation statement was included in the Public Notice and includes and approach of headwaters re-establishment, establishmen, and preservation, restoration and enhancement of degraded channels downstream from the proposed mine, restoration of temporarily impacted channels and treatment of water quality downstream from the proposed mine.


EPA has signficant concerns regarding the cumulative impacts of this project on the watershed, impairment of downstream water quality and the significant amounts of impacts to perennial stream channels. EPA does not believe that the proposed mitigation will adequately offset the persistent and permanent impacts to the aquatic ecosystem communities and functions.

The CONSOL site is northwest of Delbarton, in the Pigeon Creek area of Mingo County. EPA said the area “is relatively intact with forested areas typically undisturbed and the streams themselves likely attaining water standards.” But, EPA said, Pigeon Creek itself is impaired with high levels of aluminum, iron and manganese, and delivers heavy amounts of these pollutants to the Tug Fork. Added EPA:

The ability for Pigeon Creek to assimilate additional pollutants that will occur from this activity needs to be carefully and strongly considered, especially in light of other extensive mining operations in the sub-watershed.

EPA said in its letter that agency officials are also concerned that the CONSOL permit application “does not represent the least environmentally damaging practicable alternative.”

The proposed post-mining land use for five miles of King Coal Highway requires that the applicant leave portions of the mine site to West Virginia Department of Highways (WVDOH) specifications for line and rough grade for the highway, and areas for utility right of way.

This leads our agency to question if all methods of avoidance and minimization are being incorporated due to the inability to return the areas to the area to approximate original contour.

…If WVDOH were undertaking the venture themselves, would the impacts be minimized through such methods as bridging the perennial channels, or the selection of an alignment with less aquatic impacts? Consideration of alternatives to minimize the impacts to downstream water quality should be evaluated …

The bottom line?

EPA says it does not believe that the Corps can issue this permit unless and until it conducts a detailed Environmental Impact Statement to weight the potential environmental damage.

Mark Taylor, a top permit staffer at the Corps Huntington district, told me today that it isn’t unusual to get letters from EPA commenting on permits. That’s how the process works, he said.

“They’ve had problems with projects in the past, and they haven’t had problems with others,” Taylor said. But what about these four recent letters, I asked? Well, yes, Taylor admitted, the new EPA has expressed “more concern than they’ve expressed in a while.”

Now, I’m not suggesting that new appointees at the EPA cooked this letter up in a couple hours after Obama was sworn in, and then shipped it over to the Corps before the end of the afternoon. But while declining to otherwise comment, EPA officials made no bones about the fact that this letter went sent out by the new administration.

So clearly this is an issue that the Obama administration is interested in, and that EPA staffers are focused on in a big way. We don’t know what that means exactly — not yet, anyway. And it might be nice if the coal industry, coalfield politicians, and even environmentalists gave them time to consider and implement sound policies.