Mountaintop removal: Streamlined permits to stop – kinda

July 14, 2009 by Ken Ward Jr.

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Tomorrow’s edition of the Federal Register (available here by the magic of the Internet) will include this notice from the U.S. Army Corps of Engineers, making good on part of the Obama administration’s plans for dealing with mountaintop removal coal mining.

As outlined last month, the Corps is proposing to eliminate the use of its streamlined permit process — in this case Nationwide Permit 21, or NWP 21 — for the approval of surface coal mining in Appalachia.

But the new Federal Register notice includes at least one twist that has critics of the Corps (and of mountaintop removal) a little concerned … I’ll get to that in a minute.

I’ve mentioned before that a federal judge already has told the government to stop using this streamlined permit procedure, at least in Southern West Virginia, where most mountaintop removal mining is taking place.  Oddly, the Obama administration, while saying it wants to do away with NWP 21 for this kind of mining, also filed a notice that it would appeal that court decision.

Technically, the Federal Register notice tomorrow announces two actions:

First, the Corps proposes to modify NWP 21 to prohibit its use to authorize discharges of dredged or fill material into waters of the United States for surface coal mining activities in the Appalachian region of the following states: Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia until it expires on March 18, 2012. The proposed modification would enhance environmental protection of aquatic resources by requiring surface coal mining projects in the affected region to obtain individual permit coverage under the Clean Water Act (CWA), which includes increased public and agency involvement in the permit review process, including an opportunity for public comment on individual projects. The application of NWP 21 to surface coal mining activities in the rest of the United States would not be affected by this proposed modification.

Second, the Corps is proposing to suspend NWP 21 to provide an interim means of requiring individual permit reviews in Appalachia, while proposing to undertake the longer-term measure of modifying NWP 21 to prohibit its use to authorize discharges of dredged or fill material into waters of the United States associated with surface coal mining activities in the Appalachian region of these six states. The Corps is also proposing to suspend NWP 21 to provide immediate environmental protection while it evaluates the comments received in response to the proposal to modify NWP 21.

Tomorrow’s notice kicks off a 30-day comment period on the Corps’ proposals.

The notice includes a very straightforward statement from the federal government about the impacts of mountaintop removal that have environmental regulators concerned:

Since NWP 21 was first issued in 1982, surface coal mining practices have
changed, and surface coal mining activities in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia have become more prevalent and have resulted in greater environmental impacts.

Mountaintop surface coal mining activities increased because many of the remaining coal seams in the Appalachian region were less accessible to non-surface coal mining techniques. Since the late 1990s, there have been increases in concerns regarding the individual and cumulative adverse effects
of those activities on the human environment and the natural resources in this region, including streams and other aquatic resources.

Corps officials say the switch from processing valley fill applications under NWP 21 to individual Clean Water Act permits would improve their ability to reduce the impacts of mountaintop removal:

Using the individual permit process would provide more information for the Corps to consider for making decisions on these permit applications, because of increased public and agency involvement, such as the opportunity to comment on public notices for individual surface coal mining activities in Appalachia. This additional information could help improve the Corps’ analysis of impacts to public interest review factors, including the aquatic environment and other relevant environmental factors within the Corps’ Federal control and responsibility.

The notice added:

… The 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.

Corps officials note that using individual permits instead would be “consistent with” the late March ruling by U.S. District Judge Joseph R. Goodwin.

Under a section titled, “Grandfathering,” tomorrow’s notice says that any NWP 21 authorizations made before the Corps’ proposal is finalized would remain in effect.  If work under the permit had started before any action by the Corps is finalized, mine operators would have 12 months to complete that work.

Oddly, though, the  notice also says that agency officials will continue to process NWP 21 applications until  the Corps makes a decision on the proposals being announced. The notice added this bit of caution for the mining industry:

Pending the Corps’ final decision on the suspension of NWP 21, those entities
proposing surface coal mining activities involving discharges of dredged or fill material into waters of the United States in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia may wish to consider whether it would be more prudent to request individual permits instead of submitting NWP 21 PCNs. The information required for the submittal of a complete application for a standard individual permit is different from the information required for the submittal of a complete NWP 21 PCN. Since NWP 21 could be suspended before a district reaches a decision on an NWP 21 PCN, the prospective permittee may choose to initially request an individual permit to avoid having to later submit a separate application for a standard individual permit, thereby saving his or her time and resources during the permit decision making process.

Still, the Corps’ plan to continue processing NWP 21 applications — while stating so clearly that the streamlined process is inappropriate for large-scale surface mining — has critics of the agency concerned. Jim Hecker, environmental enforcement director with Public Justice, was the one who pointed this language out to me today. Hecker said:

It is internally inconsistent for the Corps to acknowledge that the impacts of NWP 21 “may be more than minimal on a cumulative basis” and “would be more appropriately evaluated through the individual permit process,” and at the same time state that it intends to continue processing NWP 21 applications until it makes a final decision.  The Corps should not process any pending applications in the interim.

Comments on the Corps’ proposal may be made by visiting this Web site, and directing those comments to docket number COE-2009-0032. Or, send them the old-fashioned way to: U.S. Army Corps of Engineers, Attn: CECW-CO (Attn: Ms. Desiree
Hann), 441 G Street NW, Washington, DC 20314-1000.

And hey, the links above to the Federal Register notice will change after midnight tonight. Visit the current day’s Federal Register by clicking here.

UPDATED: The new direct link to the Federal Register notice is here.

14 Responses to “Mountaintop removal: Streamlined permits to stop – kinda”

  1. rhmooney3 says:

    ‘Side-step’ – Charles Durning as Governor of Texas (1982)
    http://www.youtube.com/watch?v=7mNDHTfdn1A (5 minutes)

  2. Bruce Boyens says:

    Simply put the Obama folks want me to believe that it is raining when they are peeing on my shoes.

  3. Cindy Rank says:

    The Center for Biological Diversity issued a statement yesterday (July 14th) supporting the Corps proposal to eliminate Nationwide 21. HOWEVER, citing problems with the supposed more detailed Individual Permits the Corps continues to authorize, the Center also stated in no uncertain terms its position about the broader issues of filling streams and mountaintop removal:

    “This decision is the administration putting yet another Band-Aid on the gaping wound that is mountaintop removal coal mining, without actually doing anything to prevent the injury,” said Tierra Curry, biologist with the Center for Biological Diversity.

  4. Brandon says:

    Another horendous blow to the states of Kentucky and West Virginia. How do you people expect to have your electric bills payed for through special programs without the tax dollars coming from coal and the coal miners? How do you make federal law but are only going to apply it in following states: Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. Then turn around and say it this rule will not apply to the rest of the country. Actions like this is discrimination in any other field. Where is the AFL-CIO representing the people of these states. This is a civil rights violation. Also, I believe who are the environmentalists to tell what the people can do with their land. All of the land in the states that is being mined is privately owned by people or companies. Why isn’t anyone picking on the western companies that are leasing coal/surface rights from the federal government? Here’s an example:http://sourcewatch.org/index.php?title=Federal_coal_leasing
    So, the real story is going to be if you own land you are mining, the federal government isn’t going to let u surface mine it, but if the federal government leases the property to a coal company then go ahead and mine the land. These valley fills, ponds, spoil piles are all on private property. I wish there would be an injunction on any air traffic over top of a mountaintop site, because there are companies exploiting coal by using the airways as a way of terrorism against the coal miners and their respected companies they work for. I am glad to see all the coal miners starting to bond together for good of the families, communities, and the counrty.

  5. scott 14 says:

    This rule is dead as soon as a person or company challange it under the 4 amendment of the constutiton. Equal protection under the law is granted to all persons even to the “evil” surface miners.

  6. Cindy Rank says:

    Nothing in the proposal says the Corps is going to stop granting permits.

    The Corps is just exercising its legal authority to request additional information from companies and to do more extensive review of certain permits through the more detailed individual permit process.

    Studies have shown that 404 fill permits in the Appalachian region [in the states mentioned] have resulted in impacts that are so extensive that the individual and cumulative impacts no longer qualify for the quicker, less in depth review provided by the nationwide process.

    The overwhelming majority of mine projects in WV are already required to apply for individual permits. The Corps now wants to extend that requirement to surrounding states where the impacts of mining have also grown beyond the acceptable limits established for the Nationwide/general permitting process.

  7. […] Ward’s Coal Tattoo blog dives into the particulars of this regulatory proposal.  Suffice it to say that the […]

  8. Nanette says:

    Brandon, you have really got to be kidding. You want injunctions on air traffic over MTR sites. You claim that it is terrorism against you if someone flies over an MTR site show and shows exactly what is going on there? Terrorism?? Unbelievable. I guess now some of the MTR folks are claiming ownership of the air.

  9. Kenneth King says:

    Of course they don’t want anyone to see what is really going on in southern WV. Thank s to Google Earth MTR can’t be hidden from the rest of the country or world. Even though it is outdated by more than a year you can see the enormous scale of the destruction from 200 miles up before even zooming in to individual counties. Imagine what it would look like if it was updated weekly or daily.Logan county alone is approaching 50,000 acres being completely wiped off the earth. All you have to do is add up all the permit acrage.

  10. eastwood78 says:

    I have read all the comments, and come on people, you all can do better in sending in comments. We all know that airplanes cannot be prohibited from flying over the MTR destructions sites. I read where surface miners are being called EVIL by one of their own. I don’t think that surface miners are evil, and I most certainly don’t believe that the underground coal miner are evil be they a non-union miner or a UMWA miner. Get it together. You all can’t have it both ways. Don’t say bad things about each other and cause Ken to shut down the comments. Tomorrow is another day, and I am sure that much more news will be coming out on these laws and regulations. Let us wait for Ken to bring us the true side of everything. Work safely, drive safely, don’t drink and drive, and give your children a big hug and kiss as you put them to bed. God bless you all.

  11. […] Ward’s Coal Tattoo blog dives into the particulars of this regulatory proposal.  Suffice it to say that the net […]

  12. […] Ward Jr. of the Charleston Gazette reports on his Coal Tattoo blog: Tomorrow’s edition of the Federal Register (available here by the magic of the Internet) […]

  13. […] The official notice is here, and Ken Ward has a handy summary over at Coal Tattoo. […]

  14. Karen says:

    If all these people in favor of MTR lived in a town where, everyday there was an earth shaking blast going off, and you’re house shook like an earthquake, shaking the pictures off the walls, and ruining your home, and poisoning the rivers and streams, would they want it to STOP? I think the answer would be yes. I live in just such a town.

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