EPA: All 79 mining permits need more review

September 30, 2009 by Ken Ward Jr.


Photo by Vivian Stockman

The U.S. Environmental Protection Agency just issued the following statement regarding its ongoing review of mountaintop removal mining permits in Appalachia:

 EPA Assistant Administrator for Water Peter S. Silva today finalized the list of 79 Appalachian surface coal mining permits requiring additional review and coordination under the Clean Water Act. EPA’s letter today confirms that all 79 permits initially identified on September 11 must undergo additional evaluation by EPA and the Army Corps of Engineers. EPA’s final list was transmitted in a letter to the Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy.  The 79 permits represent all of the backlogged surface coal mining projects under review by the Army Corps of Engineers.  After a careful evaluation of these surface coal mining projects, EPA determined that each of them, as currently proposed, is likely to result in significant harm to water quality and the environment and are therefore not consistent with requirements of the CWA.  EPA and the Corps have developed a joint enhanced coordination process that establishes a schedule and procedures for the evaluation of these 79 permits. The Corps of Engineers is now responsible under the coordination process for beginning the next stage of discussions with EPA and the mining companies to reduce anticipated environmental and water quality impacts.  In his letter, Assistant Administrator Silva emphasized that “EPA looks forward to working closely with the Army Corps of Engineers, with the involvement of the mining companies, to achieve a resolution of EPA’s concerns that avoids harmful environmental impacts and meets our energy and economic needs.”

Updated:  Here’s a link to EPA’s letter to the Corps, outlining its concerns about these permits.

What does this mean?

Well, it doesn’t mean that EPA is denying or rejecting all of these permits … despite what Hoppy Kercheval reported earlier this morning for MetroNews, the statewide radio network here in West Virginia.

The process is a little more complicated than that. I tried to break it down previously, and you can read that post here.

But as the EPA statement said, EPA officials have determined that all 79 of these permits as they are currently proposed would not comply with the Clean Water Act. EPA is not denying the permits (though under some circumstances, EPA has the authority to override Corps of Engineers decisions to issue permits). Instead, EPA is saying that all 79 of these permits need to be more closely reviewed and perhaps changed so that they would comply with the law.

Here’s what happens now:

Corps officials in the agency’s district offices will contact EPA to begin reviews on each of the 79 permits. An inter-agency agreement gives the EPA and the Corps 60 days for “enhanced coordination” to reach a “timely resolution” on the permits. This 60 days starts when the Corps notifies EPA that a permit on EPA’s list is “ready for enhanced coordination.”

Whenever “workload dictates or issue resolution warrants,” EPA or the Corps can seek a 15-day time extension.

If disagreements over a permit can’t be resolved and the 60-day clock runs out, the Corps can choose to issue a permit without EPA approval. But, it must first give EPA 10 days notice.

After that days, EPA must either back off or initiate action under Section 404(c) of the Clean Water Act, the part of the law that allows EPA to block Corps permits it finds unacceptable.

You can read more about the Obama administration’s “enhanced coordination procedures” for reviewing these permits on EPA’s Web site here.  The list of 79 permits is here.

Updated — Here are some reactions that are coming in to this EPA announcement:

The National Mining Association —

 “Today’s decision by EPA underscores the grave concerns we have expressed since EPA’s March announcement of a moratorium on coal mining permits,” said NMA President and CEO Hal Quinn.  “Coal mining throughout Appalachia cannot reassure thousands of anxious workers and their families, and we cannot plan for the economic future of our operations absent a workable, transparent process that provides certainty.  Despite EPA’s rhetoric, its actions thus far have failed these important tests.  EPA’s answer of more delay and study is at cross-purposes with our nation’s need for affordable energy, investments and secure jobs.” 

The Sierra Club —

“We praise today’s announcement and hope it is just one of many positive actions the Obama administration will take toward ending mountaintop removal coal mining. An enhanced review of each of these pending permits will surely prove that this most destructive form of coal mining is incompatible with clean water.

“Now the only way to truly protect the people, streams and mountains of Appalachia is to reverse the Bush-era rule changes that allowed coal companies to dump waste into waterways. We call on the Obama administration to reinstate the original intent of the Clean Water Act and to prevent mining waste from being used as fill material.”

The United Mine Workers:

“We are extremely concerned that the decision to further delay 79 permits for Appalachian surface mining operations will result in layoffs of our members who work at these operations in southern West Virginia.

“This is especially troubling because these layoffs will not occur as a result of market conditions or some other economic reason, but simply because the Environmental Protection Agency (EPA) and the Army Corps of Engineers (the Corps) have yet again strung out this process without making clear what criteria companies are expected to follow with respect to their permit applications.

“We know that mine operators at mines where we represent the workers have gone to great lengths to work with the EPA and the Corps to get their permits in shape to be approved. Now, once again, they are told that they face yet more delays and uncertainty.

“It is imperative that the process for approving or rejecting permits be clarified so that everyone can know what to expect. Dragging things out only adds unnecessary pressure to coal miners, their families and their communities and makes it much more difficult to meet America’s energy and economic needs.”

31 Responses to “EPA: All 79 mining permits need more review”

  1. bo webb says:

    Thanks for the clarification Ken. Lot’s of speculation going around. It is good news though to see the Fed EPA recognizing the insanity of mountaintop removal an valley fills. It seems to me new permits are going to be very difficult to get. Now, what about the existing permits and the problems they pose?

  2. Nanette says:

    Is it possible for the EPA to review existing permits?

  3. Teresa says:

    It means that instead of working with the mining industry, like they have Dupont and the C-8 issue and The Hampton Roads Sanitation District, which just agreed to pay 1 milion dollar fine for dumping raw sewage in the Chesapeake Bay, they are going to completely stop mountaintop removal mining. Get ready for fabulous electric bills WVa. I would rather have selinium in my water as sewage or C-8. Talk about a double standard!

  4. Teresa says:

    Ken, do you have any updated photos. You just keep showing the same old active mining areas. How about a few of the reclamation. Thats really bias in the media. Like using biased language, these are baised photos, just what you want to show.

  5. Nanette says:

    Teresa, places such as the photos that Ken has up is what we see every day here in the coal fields. You want updated photos? Pictures taken today right around my area would look just like what he has on his site. Raw sores all over the place in southern WV.

    Do you want to see a “reclaimed” mountain? Go to Hernshaw and look up the hollow where the Magnum Coal sign is. That heap of rubble won’t grow anything and the sides are slipping. I have been watching that mess for a long time, and it never gets any better.

  6. Teresa says:

    Nanette, Im sorry I live surrounded by reclaimed mountaintop removal mining and I dont see that. We dont have open sores, like you said. Thats funny I live beside an Magnum coal site. We have crawfish, several different types of fish in the creek, no silt, no slime. And importantly no flooding. the many sediment ponds help control the flow of water from the mine. So I have first hand knowledge of surface mining, Ive been around it since 1979. Where are your DEP officials? They should be checking on the advancement of the reclamation attempts. That is THEIR job.

  7. […] Blogs @ The Charleston Gazette – » EPA: All 79 mining permits need more review blogs.wvgazette.com/coaltattoo/2009/09/30/ – view page – cached The U.S. Environmental Protection Agency just issued the following statement regarding its ongoing review of mountaintop removal mining permits in — From the page […]

  8. […] So did the EPA stop any MTR permits today? No, and Ken Ward gives a good explanation on his blog: […]

  9. hollergirl says:

    Thanks for the clarification Ken. I think there is a glimmer of hope that mountaintop removal/strip mining/valley fill mining will finally be abolished. As I was hiking in one of the few whole mountains we have left here, I realized what the state motto “Mountaineers are always free” means. I have been to so called “reclaimed” sites and a very few trees, savannah grass and autumn olive is not “as good as or better” as the law requires. As the song says- “you can’t put it back”. A few trees does not a “mixed mesophytic forest” make. I have yet to see a reclaimed site with Ginseng, yellow root, blood root or other valuable native medicinal herbs growing on it as it does on our mountains now. For the most part, stream mitigation is a joke and there is little evidence that it will ever work. C8, sewage, heavy sedimentation or selenium should not be in any streams and we should all work to keep our water clean as we are reminded that “wars will be fought over clean water”.

  10. Clem Guttata says:

    Teresa — I don’t see how stopping new MTR permits leads to an increase in W.Va. electricity prices–can you explain that one for me?

    The price of coal is determined by supply and demand for coal, not the cost of coal mining.

    These MTR mines would contribute a small percentage of the overall coal on the national market. From everything I can tell, there’s still plenty of coal available for the foreseeable future from already approved mines–underground and surface.

    If anything, this EPA action will reduce the aggregate demand for coal if it accelerate plans of utilities around the country to find substitutes for coal. I’d say the immediate real winner from this announcement is natural gas suppliers.

    The more that the coal industry cries “grave concerns” the more ammunition the natural gas industry has to encourage electricity companies to move from coal to natural gas.

  11. scott 14 says:

    The permit blockade continues. This is just what miners need, more worry at night before bed. Ask your self this question.”If your company which makes anything, were looking to build a factory on the east coast. Would you build here knowing how industry has been treated?” Just a little food for thought. If valley fills are outlawed, Let the exodus begin.

  12. Jm2 says:

    Most of these permits have been under review for 4 to 5 years. This enhanced review process is a sham as the EPA will not tell the industry just what is acceptible. This stalling technique by the EPA will only cost more jobs and put more families in the poor house.

    Everyone should also not that there are deepmine operations that are effected by these “held up” but effectively denied permits.

  13. blue canary says:

    scott14, if I were a company looking to build a factory, I would be looking for a site that didn’t have poisoned water and wouldn’t be under threat from cracked foundations from nearby blasting, and where my employees could get to work without being run off the road by overloaded coal trucks. But that’s just me.

  14. bo says:

    MTR got out of hand because George Bush was indebted to the coal industry, simple as that. Ending MTR is not going to end coal mining. Those demolition crews that have been destroying our mountains should be lobbying our representatives for infrastructure stimulus money so they can now turn those bulldozers around and begin to clean up the mess they have created. It will take decades to fix this nightmare. Thank God the EPA has realized just how insane mountaintop removal is. Poisoning future generations for short term profit is insane. Blasting carbon capturing forest to piles of rubble is insane. Allowing yourself to depend on a finite fossil energy source as the mainstay of your economy is insane. To allow yourself to become so dependent on the extraction of that energy source that you are willing to accept selenium in the water supply that your children drink is……………
    It totally amazes me how people are so afraid of change that they are willing to allow themselves to be controlled and abused by a domineering coal industry whose only interest is profit. MTR has been a highly profitable enterprise for companies like Massey Energy, but they will survive just fine without further destruction to WV.

  15. jayb says:


    If the natural gas suppliers are the real winners here then how long will it take for you to be crying that they are destroying the enviroment due to them leveling 5 acres for a marcellus well site or that they are contaminating everybodys water from the fracking process, or nobody wants a natural gas pipeline right of way in their backyard.

  16. Teresa says:

    Clem, no problem on the explanation of the loss of MTR mining in relation to the cost of electricity. It’s an easy explanation based on simple Econ 101. MTR is an efficient way to mine coal, efficiency equals lower cost. The lowest cost producer/supplier wins. Since the cost of coal generated electricity is based on supply and DEMAND, economics shows that when the availability cannot meet demand, prices skyrocket. Remember when you couldn’t find a Cabbage Patch baby, or Nintendo 64 or you waited in line at Walmart for the X-Box. If you couldn’t get one that way you would pay whatever price someone on EBAY had it listed for, it’s the same principle. When products become scarce for whatever reason, the price of that product becomes exorbitant. Add that to the 12.1 percent rate increase awarded to AEP and it’s not too difficult to figure out why electric prices may become out of reach for the average WV resident. If MTR is too destructive to mine coal, it’s too destructive to build interstates, shopping centers or airports. I know those are important to society, but mining coal is also important, providing several layers of jobs in Southern WV, affordable electricity, and severance tax bases to local communities. Don’t think that this will not cause a serious ripple in the coal industry and don’t think that companies won’t shut down and pull out. I know several of the permits on the EPA list are for sites that are literally up against the wall on the permit issue. With no permit forthcoming in a timely manner, you will begin to see layoffs. With the liberal environmentalist movement backed by the media and the Hollywood politicians against the industry, it becomes too tedious and costly to continue mining in WV. We are no longer “Open for business.”
    What environmental issues are involved in MTR mining, need to be addressed, but mining should have the same leeway given to other industries that have environmental issues. Mining is one of the most heavily regulated industries in the country and with clear direction from DEP, Army Corp and EPA those issues can be addressed. Not only will miners lose, DEP, MSHA and WVMHS&T will not need all the employees they have, there go more good paying jobs. We can’t all be hippies and hikers; someone has to provide the economic backbone for the state’s economy. Without manufacturing or producing something, there is no backbone for you economy. Retail and fast food, wont pay the electric bill!

  17. Silveybelle says:

    I live next to a surface mine, my water is not poisoned, by foundations are not cracked. And you know what? If I believed the mine caused damage to my property I called them and guess what? They came and fixed it. Bitching about it to the media didn’t get the cracks in the dry wall fixed. Calmly calling the company and informing them that I had a problem did!!! I would do the same with any company. You don’t bring out the big guns at the first incident. Hate to burst your bubble Nanette, but Magnum Coal doesn’t have any properties in Hernshaw. No coal companies have current, active mines anywhere near Hernshaw. So you are mistaken about what the open sores on the earth are near you. ALL mines are required to reclaim. And contrary to what Hollergirl thinks the reclamation process begins with few trees and savannah grass, it doesn’t end there. I used to know the biologist for the surface mine near my house very well and he explained to me that to be able to replant hardwoods and native species he had to start by planting savannah grass, locust trees, and russian olive to replenish the soil. Also the mines do not own all the property they mine and it is up to the individual property owner how they want THEIR PROPERTY reclaimed. If I own land and Magnum leases the coal rights they ask me how I want the land replanted. If I want savannah grass and russian olive that is what I will get. Bo I am not afraid of change, but no one is offering a suggestion of what we can change to. All I hear is end MTR, but no one is saying what we should switch to. Yes, MTR coal may only contribute a small amount of all US electric, but you had better believe it contributes a large amount of WV, KY, TN, AL power. Teresa, you’re right that retail and fast food certainly won’t pay the power bill because nobody will be able to afford retail or fast food. What I DO NOT and CANNOT understand, is why it is socially, politically and environmentally acceptable to do valley fill and mountaintop removal to build the newest Walmart shopping plaza or airport, but not to mine coal that is unmineable any other way. We can remove mountains to create places to shop, but we can’t remove them to supply electricity and keep ourselves above the poverty line. The people who want to go “back to the land” are welcome to do so. Don’t force me back into the dark ages with you. I like having electricity, tv and internet. I do not want to return to the dirt poor, grinding, unending, spirit breaking poverty endured by grandparents and great-grandparents. Nor do I want to return to the mass exodus experienced by my parents’ and my generations.

  18. […] coal companies fume, the EPA has announced that all 79 mountaintop removal permits do not satisfy the Clean Water Act and require further […]

  19. Jason Robinson says:

    wow the industry PR flacks are out in full force.

  20. […] Blogs @ The Charleston Gazette – » EPA: All 79 mining permits need …30 Sep 2009 by Ken Ward Jr.  Blogs @ The Charleston Gazette – » EPA: All 79 mining permits need more review blogs.wvgazette.com/coaltattoo/2009/09/30/ â?? view page â?? cached The U.S. Environmental Protection Agency just issued the following statement regarding its … […]

  21. Nanette says:

    Silveybelle then you tell me what that sign is at Six Mile that says Maxam Coal, not Magnum ( correction on the name) and that huge barren mound is that you can see from Rt94? Also the mountain that is being leveled that you can see going south on Rt94?

    I did make a mistake on the name of the company, but there is mining going on in the Hernshaw area. I was looking at it yesterday, that is when I discovered that I had posted the wrong name of the company on the sign.

  22. Silveybelle says:

    Nanette I was also mistaken. But it was my understanding that 6 mile was not near Hernshaw. However, with the way we name things it is entirely possible that he 6 Mile I am thinking of is not the same one you are referring to.

  23. Silveybelle says:

    Jason, I’m not an industry PR flak. Don’t work for the “big coal” companies. I work for the State. And at the rate things are going, I’ll be the only one in my family that’s still employed.

  24. Jason Robinson says:

    Well then Silveybelle I didn’t mean to insult you. Usually when I hear someone equating MTR with construction of a Wal-Mart I figure that they are being intentionally dishonest. As much as wrong with that sort of development, it doesn’t poison groundwater and dislodge boulders that kill children in their beds. And Wal-Mart has some minimum corporate responsibility, unlike the hired thugs that interrupt 4th of July picnics and threaten children.

    Did your reclamation “biologist” friend have any success with regenerating native forests? How many ginseng bushes did he have up there? Lots of salamanders? Orchids? Wood rats? Boletes? If you visit those sites you’ll see that no matter WHAT the landowner desires, exotic species of grass and russian olives are about the best you can hope for. So long chestnut oaks. So long timber grade black cherry. So long maidenhair fern. So long morel mushrooms. So long springs you can drink from. So long rock house native american shelters.

    If you consider that people have lived in north america for 30,000 years without “jobs” then all of this so called debate becomes trivial.

  25. […] the momentum, the EPA announced this morning that all 79 mountaintop removal permits currently being reviewed by the Army Corps of […]

  26. […] 5.) The E.P.A. demands a review of 79 sites mining sites. […]

  27. […] EPA: All 79 mining permits need more review (West Virginia Gazette) […]

  28. rhmooney3 says:

    For those of you planning to stay up late to see the EPA review results, here’s an example of their review results:


    EDITORIAL: EPA Needs to Do Job and Protect Creek

    By Tampa Tribune, Fla.

    Oct. 2–U.S. Rep. Kathy Castor is correct to appeal directly to Washington for a review of the poor decision-making that resulted in federal permits being issued for a massive mall that threatens Cypress Creek and Tampa’s drinking water supply


    Such a move is clearly warranted. It would provide stronger protections to the creek, an Outstanding Florida Water, while still allowing reasonable development.

    The biggest disappointment has been the U.S. Army Corps of Engineers, whose permit allowing the destruction of more than 50 acres of wetlands cleared the way for construction to begin. That agency forgives and forgets too easily.

    The Corps correctly suspended its permit for the mall in early 2008 after a series of unauthorized discharges into the creek, which is a tributary of the Hillsborough River, Tampa’s main drinking water source.

    Yet a few weeks ago, the Corps decided to reinstate the permit, requiring only minor adjustments in the plans instead of mandating such meaningful changes as smaller asphalt parking areas or a parking garage that would reduce runoff.

    It’s difficult to believe, as the Corps does, that the revised project “represents the least environmentally damaging practicable alternative.”

    The Corps did fine the developers $297,000 for the discharges and unauthorized destruction of nearly an acre of wetland.

    And that’s what Castor, a Tampa Democrat, wants Environmental Protection Agency officials to do. She appealed directly to EPA Administrator Lisa Jackson in Washington.

    Given the history of the project, Castor is smart to go over the Corps’ head and seek an EPA reevaluation, which the agency has agreed to do.

    EPA already had signed off on the permit, but its review was far from impressive. For starters, not a single EPA employee even visited the site — a failure that must be corrected. Officials blamed “time and resource constraints.”

    With an environmentally sensitive area and a community’s drinking water source at stake, you would think regulators would do more than read paperwork and make a few phone calls.

  29. […] EPA: All 79 mining permits need more review (West Virginia Gazette) […]

  30. […] in the footsteps of the hands-off Bush White House on the issue. More recently, however, the EPA announced that it was withholding 79 pending applications for new mountaintop removal projects in order to […]

  31. […] their politician friends — talk, you’d think that the Obama administration’s move to more closely review mountaintop removal permits has brought coal production across Appalachia to a halt — or at least driven mine operators […]

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