Mining Permits
Surface Mining Permitting Delays Put Jobs and Energy Production at Risk
All mining – including surface mining – is highly regulated. Thousands of pages of federal and state regulations control how mining operations are conducted in order to protect the environment and the public. Among the laws that specifically regulate coal mining are the Surface Mining Control and Reclamation Act (SMCRA), the Clean Water Act, the Clean Air Act, the Endangered Species Act and the Federal Mine Safety and Health Act.
The U.S. Congress expressly authorized surface mining when it enacted SMCRA in 1977. Under this act, mining companies must meet dozens of detailed performance standards to protect the environment, including maximizing recovery of the coal to avoid future disturbance, stabilizing and protecting the surface areas to control erosion and water pollution, and providing for replacement of vegetation after mining. The federal Office of Surface Mining Reclamation and Enforcement (OSM) recently announced stringent new regulations that provide additional protections to streams and the environment. In short, these new regulations require mining companies to show that the operation has been designed to ensure that as much dirt and rock as possible is returned to the mined area and to minimize the volume of excess material to be placed in valley fills.
No mining activity may take place without a permit. The rigorous permitting process requires mining companies to submit different types of environmental studies, engineering reports, land restoration and reclamation plans and other documents to multiple government agencies.
All mining operations, including surface mines, must secure permits and comply with regulations under the Clean Water Act. The U.S. Army Corps of Engineers issues permits for the discharge of fill material into jurisdictional waters under Section 404 of the Clean Water Act. The Environmental Protection Agency (EPA) provides comment during this process and can veto a permit where it determines the impacts will have an unacceptable effect on municipal water supplies, fish and wildlife or recreational areas. The states must certify that the project will not violate state water quality standards.
The Problem: After an inquiry by Rep. Zack Space (D-Ohio) and other members of the Ohio River Valley congressional delegation, the U.S. Army Corps of Engineers revealed that it is still reviewing 235 permits for coal mining in Appalachia and the Ohio River Valley, but did not provide a timeline to complete the review process. Meanwhile, the administration has announced ambiguous plans to “toughen” the requirements for mountaintop mining.
The EPA has decided to halt 79 lawful permits in the Appalachian states to conduct further arbitrary review. These permits have been reviewed and approved by both state and federal regulatory authorities, after the EPA had commented, or chosen not to comment, on each of the permit applications. Only when the Fourth Circuit Court of Appeals wholly rejected the challenges by outside environmental activists did EPA decide to intervene and reassert the same arguments the courts had already rejected.
EPA claims that the coal mines would impact water quality, pointing to the results of its 2008 study that found that certain mayflies – a type of insect that is sensitive to any change in the environment – are absent from water near mines or valley fill areas. However, the same EPA study cited another report that found that “total abundance of all organisms was not substantially reduced in streams below valley fills.” In short, the EPA contends that the absence of mayflies, an ultra-sensitive insect, is an indicator of impact on water quality, and that any impact from mining, no matter how subtle, is not allowable.
On April 1, 2010 the EPA issued new regulatory guidance that was effective immediately and applied additional subjective standards to – and only to – Appalachian mining. The issued documents were designed to prevent approval of any new mining permits in Appalachia and make it nearly impossible for the permits already under “enhanced review” to move forward. “The Effects of Mountaintop Mines and Valley Fills on Aquatic Ecosystems of the Central Appalachian Coalfields,” discuss the effects of surface coal mining on aquatic insects – mayflies – and fish, while “A Field-based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams,” puts forward the little-used standard conductivity – the rate by which electricity travels through water – to judge if streams are impacted by mining. The standards, which were enacted without any prior comment period or review aside from a pro-forma pubic hearing after-the-fact, are designed to raise the standard of water quality to a level that nearly any activity near a stream – road construction, housing developments – would not pass. These new standards, decided upon by the EPA, without any consultation, clarity or consistency only apply to the permits needed for mining and threaten the thousands of jobs that are tied to the Appalachian coal economy.
Also this past spring, in a direct attack on Appalachian coal, the EPA revoked the permit for the Spruce No. 1 mine site in Logan County, WV. The revocation of the Spruce No. 1 mining permit is the first and only time that the EPA has pulled an existing permit and only the 12th time since 1972 that a permit has been vetoed.
To shut down the mine, the EPA claimed authority under a provision of the Clean Water Act – § 404(c) – that only applies before a permit has been issued, an authority the EPA did not use when the permit was under review in 2007 and goes against U.S. Army Corps of Engineers (USACE) opinion, which contends that the EPA has no grounds for revoking the permit. In addition, the EPA fully acknowledges that they have never used this authority in the 38 years since the Clean Water Act was enacted.
The EPA is using a Clean Water Act provision and yet, an environmental impact statement compiled by the USACE and reviewed by the EPA concluded that the Spruce No. 1 mining site would “contribute minimally to cumulative impacts on surface water quality” and would add waterways and wetlands after reclamation of the mined lands.
The permit situation is dire as the EPA continues to change the rules, which make it nearly impossible for mining to continue as permits have to be adjusted or completely reworked. A report from the Republican members of the U.S. Senate Committee on Environment and Publics works has found that more than 190 permits are under scrutiny by the EPA as off March 2010. That’s over a hundred more than the 79 publicly acknowledge by the EPA. The hold of mining permits – acknowledged or not – has potentially devastating consequences for the Appalachian region as more and more jobs are threatened by ongoing permitting delays or the increased activity of an activist EPA that will likely revoke additional existing mining permits.
In June 2010, The United State Army Corps. of Engineers (USACE) suspended the use of Nationwide Permit 21 (NWP 21) for Appalachian mining activities, compounding problems for securing mining permits and adding to an already unclear permitting situation. The NWP 21 is utilized for everything from mining to road building to development construction and is required to authorize discharges of dredged or fill material. Without NWP 21, the permitting situation for Appalachian coal, where dozens of permits still under ongoing “enhanced review” by the EPA becomes even more confusing and hinders the economic vitality of the region.
Right now Appalachia faces a regulatory black hole that threatens the future of coal mining not only in Appalachia but also elsewhere, as the government has begun to re-interpret already tight rules in order to delay permits indefinitely and has even started to revoke applications for surface mining permits that are in compliance with existing laws and regulations.
The Consequences: The delays in issuing surface mining permits are further threatening the well-being of communities that are already battered by a recession:
The permits are necessary to sustain and create thousands of highly-paid jobs – the average mining wage is more than $66,000 per year, approximately 57 percent higher than the average wage for other industrial jobs in the region1. When nationwide unemployment is at its highest level in years, the government should not stop Americans from going to work. For every coal mining job, an additional 3.5 jobs are created elsewhere in the economy.2 In other words, about 500,000 people across the country depend on coal mining to stay on the job and earn a paycheck, so they can support themselves and their families.3 Coal mining powers the local economy.
About 40 percent of coal produced in Central Appalachia is mined using surface mining methods, as is 70 percent of all U.S. coal. Surface mining operations provide enough energy to power more than 25 million American homes4. These permits are needed to provide affordable coal-based electricity throughout the eastern United States.
Coal severance taxes and other taxes generated from coal represent tens of millions of dollars in tax revenue for the Appalachian states. Education and emergency response services are just two of many vital government services that receive significant funding through coal mining. When states are facing major budget shortfalls because of the weak economy, the federal government should not block sources of revenue.
The U.S. Senate Committee on Environment and Public Works found that “actions by the Environmental Protection Agency under the Obama administration are disproportionately affecting small companies in the eastern U.S.” and nearly 41 percent of the region’s coal production is on hold.
The National Mining Association estimates the direct value of surface mining activity at more than $5 billion. Billions more come from the purchase of mining equipment, costs for coal transportation, use of engineers and consultants, and tax payments to government5. The growing backlog of coal mining permit applications is putting thousands of jobs and the economic stability of thousands of families at risk.
* The National Mining Association compiles and analyzes data from a variety of official sources, including the U.S. Bureau of Labor Statistics (BLS), U.S. Department of Energy Energy Information Administration (EIA), and the Mine Safety and Health Administration (MSHA), among other U.S. and international agencies.
1 National Mining Association. Mountaintop Mining Factbook. (pg. 2) http://www.nma.org/pdf/fact_sheets/mtm.pdf
2 National Mining Association. Fast Facts about Coal. http://nma.org/statistics/fast_facts.asp
3 MSHA 2007 employment (using EIA surface & underground ratios) Multiplier (3.5 avg.) from NMA Economic Contributions study (2007) Note – Employment numbers include contractors and all prep plant workers. http://www.nma.org/pdf/pubs/mining_economic_report.pdf
4 National Mining Association. Mountaintop Mining Fact Book (p.2)
5 National Mining Association. Mountaintop Mining Factbook. (pg.2) http://www.nma.org/pdf/fact_sheets/mtm.pdf
