Elections, we have been told, have consequences. In the area of
coal mine permitting, this apparently includes the dismantling of
settled administrative law as a part of an effort to severely
reduce the size of the Appalachian coal industry. An outright
legislative abolition being unattainable, the Obama Administration
has used one of its most powerful federal bureaucracies, the
Environmental Protection Agency (EPA), to accomplish what it sees
as the next best thing: a chokehold on the agencies that issue
permits allowing for the opening of new mines and expansion of
existing ones.
It began, symbolically enough, on January 20, 2009 -- the very day
that President Obama was sworn into office. In a letter bearing
that date, EPA's Region III first notified the U.S. Army Corps
of Engineers (Corps) that it would begin objecting to issuance of
mining-related "dredge and fill" permits under Section
404 of the federal Clean Water Act (CWA) based on concerns about a
shift in benthics (insect) population below valley fills. That
first letter, and many after it, was based principally upon an
unpublished study by EPA's "Freshwater Biology Team"
that concluded that valley fills created in the course of surface
mining are "strongly related to" such "downstream
biological impairment." It did not matter that the Corps had
already addressed the potential effects of the proposed operations
on the biologic and aquatic communities, requiring the applicant to
minimize those effects and mitigate for those that could not be
avoided. It also did not matter that the 404 permit could not take
effect until the State of West Virginia (through its Department of
Environmental Protection) had certified that the proposed mine
would not violate State water quality standards. EPA's opinion
as to what was the best science among the differing opinions was
declared to be controlling.
More 404 permit objection letters followed, focusing on the same
types of objections and in many cases using the same language to
express them. EPA claimed that the Corps had not adequately
evaluated the effects of proposed stream filling on biological
diversity, and had not properly assessed the various functions
performed by stream headwaters. It also questioned the Corps'
reliance on mitigation measures to offset the loss of particular
stream segments, concluding that the functions served by headwater
streams in nearly every case could never be restored or
replaced.
This all seemed to come to a head when the U.S. Court of Appeals
for the Fourth Circuit issued its February 13, 2009 decision in
OVEC v. Aracoma Coal Company. In Aracoma, the
district court had granted judgment to the plaintiff groups against
the Corps, rescinding several 404 permits based on the same grounds
that EPA had been citing in objecting to such permits. The Fourth
Circuit reversed. Observing that federal courts are not authorized
to simply adopt the opinions of plaintiffs' expert witnesses
over those of the agency's experts, the Court found (among
other things) that the Corps had used its "best professional
judgment for assessing the structure and function of the affected
aquatic ecosystem," and that its decisions "addressed the
required considerations under the Guidelines.
Although one might have expected that the Aracoma decision
would prompt the Corps to act on its large backlog of 404 permit
applications that had been deferred awaiting the outcome of that
appeal, such was not the case. Instead, EPA imposed an unannounced
moratorium on review of those permits. Then, on June 11, 2009, EPA
(joined by five other federal agencies) released its "Enhanced
Coordination Process for Pending Clean Water Act Permits Involving
Appalachian Surface Coal Mining" (ECP) and a Memorandum of
Understanding (MOU) implementing an "Interagency Action Plan
on Appalachian Surface Coal Mining." Emphasizing the need for
"coordinated environmental reviews" of proposed mines,
and a commitment to engage in "robust public
participation," the MOU included a series of regulatory
actions aimed at "better managing" Appalachian coal
mining. These included plans to (1) revise and substantially expand
the "Stream Buffer Zone" regulation issued by the U.S.
Department of Interior's Office of Surface Mining Reclamation
and Enforcement under the federal Surface Mining Control and
Reclamation Act of 1977, to include new provisions specifically
directed towards limiting valley fill activities; and (2) for
mining projects in Appalachian States only, eliminate use of
Nationwide Permit No. 21, which is a general 404 permit (with a
relatively streamlined registration process) specifically designed
for use in connection with coal mining operations.
As for the "enhanced" process set forth in the ECP, it
turned out to be nothing more than a procedurally convoluted method
of delaying the issuance of permits. Indeed, of the 235 permit
applications that had been placed on hold by EPA on May 11, 2009,
in a report issued a year later the Minority Staff of the U.S.
Senate Committee on Environment and Public Works found that only 45
had been issued – all after that Committee's
investigation was started. This occurred despite the fact that the
Corps, not EPA, is supposed to be the lead agency in 404
permitting, and the Corps is generally required to process 404
permit applications within 90 to 105 days.
While 404 permits are required for the vast majority of mining
operations in Appalachia (including most underground mines, and all
types of surface mines), there is another CWA permit that must be
issued for every coal mine and associated facility: a National
Pollutant Discharge Elimination System (NPDES) permit issued under
CWA Section 402 (or an approved State program). EPA's next move
in the permitting war was an effort to firmly establish its
dominance in the realm of NPDES permitting and water quality
standard setting – both areas that the CWA expressly
reserves to the states once their programs have been approved by
EPA (as have all of the Appalachian state programs).
Specifically, on April 1, 2010, EPA issued its 31-page
"Guidance" document on "Improving EPA Review of
Appalachian Surface Coal Mining Operations under the Clean Water
Act, National Environmental Policy Act and the Environmental
Justice Executive Order." In it, EPA imposed fundamentally
new, far more stringent "conductivity" standards for
approving mining-related permit applications under NPDES programs.
Such a policy not only runs roughshod over the states'
exclusive authority to administer the NPDES program within their
borders, but also ignores the mandatory procedures that are
required to be followed in amending existing water quality
standards. Though EPA claimed that the Guidance was not binding on
the states, at the time of its release EPA Administrator Jackson
candidly stated that EPA's intent was to create a regulatory
program in which "no or very few" valley fill permits
will be granted. (EPA Salinity Standard Could Significantly
Reduce Mining, (W. Va.) State Journal, April 9, 2010.) The
issuance of the Guidance has been challenged in at least four
different federal court cases, including one filed by the State of
West Virginia. There has been no formal indication from EPA that it
intends to refrain from applying these new standards unless and
until a higher authority instructs it to do so.
EPA's most recent move occurred on January 13, 2011, when it
took action against Arch Coal, Inc.'s proposed Spruce No. 1
Mine (to be located in Logan County, West Virginia), by issuing a
"Final Determination" under CWA Section 404(c) finding
that the valley fills proposed as a part of that mine would cause
significant adverse environmental effects on streams and wildlife.
While all of EPA's actions since 2009 in effectively re-writing
the coal mine permitting programs have ignored or bypassed
long-established legal requirements and procedures, this action
displays a particularly cavalier disregard for settled
expectations. By this proposed "veto," EPA is effectively
reversing the issuance of a permit that occurred in 2007, after a
thorough, 10-year review that included preparation of a
comprehensive Environmental Impact Statement in which EPA itself
participated.
In short, every permitting program affecting the coal industry in
Appalachia has been effectively amended by the Obama
Administration's EPA, without any effort to legally change the
underlying statutory or regulatory bases for those programs.
Although other federal and state agencies are supposed to have
primary administrative responsibility under these programs, EPA now
asserts controlling authority under each. In the absence of
judicial or other relief, the coal industry in this region will be
suffering under the effects of this usurpation of power for years
to come.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
