EPA review of mountaintop removal permits is not a job-killing ‘permitorium’: pushing back at a House Oversight hearing


Mountaintop removal coal mining (Source: Climate Progress)

EPA’s statutorily prescribed, affirmative duty under the Clean Water Act to protect the natural environment and the public health of citizens played second fiddle to the concerns of coal mining representatives at a July 14 House Oversight subcommittee hearing. “Mountaintop removal should be stopped,” said witness Joe Lovett, Executive Director of the Appalachian Center for the Economy & the  Environment. “It can’t comply with the law.” But Lovett was the sole environmental protection witness at the hearing, which was designed mainly as a forum for coal industry executives and Republican congressmen to attack the Environmental Protction Agency – while skirting the real issues raised by the environmentally destructive practice of mountaintop removal mining and its impacts on the health of Appalachian residents.

Post by Jamal Knight and Katherine O’Konski

The one-sided debate allowed industry executives to criticize EPA’s increased scrutiny of surface mining activities, while the apparent illegality of mountaintop removal operations stood buried under a host of industry complaints, which portrayed EPA’s exercise of authority as an over-reaching, job-killing obstruction to economic growth.

The subject of the hearing was the impact on employment and the economy associated with EPA’s regulation of the Appalachian coal industry under the Clean Water Act (CWA).  In 2009, 79 mining projects that required permits were set aside for enhanced review by EPA and the Army Corps of Engineers.  Of these, eight have moved forward, 50 have pulled their applications, and the rest are still pending.  This allegedly slow rate of approval has earned the policy the nickname of ‘permitorium’ by members of the industry and some lawmakers. But the sole environmentalist witness, Joe Lovett, Executive Director of the Appalachian Center for the Economy and Environment, argued that this enhanced review process is absolutely necessary and could be even more stringent.

Rep. Shelley Moore Capito (R-West Virginia), the first to testify, accused EPA of waging an “ideological war on Appalachian jobs.”  EPA’s recently tightened restrictions, she maintained, are removing certainty from the approval process and are thus discouraging new investments in coal mining.  “This administration’s EPA puts ideology first, and hardworking West Virginians who are working to put food on their families’ tables last,” she charged.

Coal industry witneses – Tom Mackall, president of Sterling Mining, John Stilley, president of Amerikohl Mining, and Chris Hamilton of the West Virginia Coal Association – agreed.  While Stilley characterized the delay in approved mining permits as “unilateral and unjustifiable regulatory actions,” Mackell echoed Rep. Capito in accusing the Obama Administration of declaring a “War on Coal” that is largely responsible for the loss of jobs across Appalachia.  “We have been under attack for the last generation by activist environmental groups and government bureaucrats,” he said.

Mountaintop removal coal mining (Photo by J Henry Fair; source: Natural Resources Defense Council)

“EPA’s actions are jeopardizing economic resurgence and the continued use of coal as an energy source” Stilley said.  However, Lovett argued that the big controversy over permits is really only about mountaintop removal (MTR) mining – and that MTR, because of its particularly devastating environmental consquences that have already destroyed more than one million acres of Appalacian mountains, should be stopped entirely.

Companies aren’t entitled to a permit; rather they receive it when they are in compliance with CWA regulations.  “Mountaintop  removal should be stopped,” Lovett said. “It can’t comply with the  law.”  In his testimony, Lovett  accused West Virginia’s  Department of Environmental Protection of “protecting coal operators from having to comply with the law,” and the US Army Corps of Engineers of  “literally overseeing the illegal destruction of our mountains and streams.”

The CWA is by no  means obscure in delineating both EPA’s regulatory authority and affirmative duty to assure compliance with clean water law and regulations in order to protect human health and the environment.  Yet industry representatives argue that they are indeed compliant with CWA laws, and that the EPA is unjustly scrutinizing  mining operations.  Hamilton in particular referred to the permit process associated with Arch Coal Company’s Spruce Mine, which he called “the  most egregious example” of the ‘permitorium,’ as the approval process had taken more than six years.

However, Mr. Lovett pointed out that the Spruce mine will destroy nearly five square miles of Appalachian forests and streams, and fill around 6 miles of streams with mining waste, permanently damaging these ecosystems.  “If that kind of activity doesn’t deserve  environmental scrutiny,” he commented, “I don’t know what does.”

Acid mine drainage (Credit: Appalachian Center for the Economy & the Environment)

Lovett testified that “toxic mine pollution contaminates streams and groundwater.” Citing a programmatic Environmental Impact Statement for mountaintop removal operations in Appalachia, he said “roughly 244 terrestrial species [will be] largely and disproportionately impacted by mountaintop removal projects.”

Lovett also referenced recent scientific data that confirmed the potential human health effects of  mountaintop removal mining. According to reports, even after reclamation efforts, drinking water wells downstream of these operations contain elevated levels of hard water and mine-related minerals including sulfates, BTEX compounds, manganese, magnesium, aluminum, and many others, each of which is potentially hazardous to human health. Mountaintop removal mining operations cause elevated levels of airborne hazardous dust; increased adult hospitalizations for lung  cancer, heart, lung and kidney disease and chronic pulmonary disorders; and elevated mortality rates.

This dismissal of environmental consequences quickly turned to outright denial. Referring to damage done to mountain ecosystems with MTR mining, Darrell Issa (R-California) posited that “you can blow off the top of the mountain and it’s not necessarily forever because it grows back.”   Similarly, Stilley deflected attention away from the notion of permanent ecosystem damage as a result of coal mining.  “In each and every case, within no more than 60 days or by the next planting season we have our sites totally reclaimed where I doubt any person in this room could or would know that any mining had taken place on that site.”  He told Issa, “we take great pride in the concurrent reclamation….those timberlands are returned to a use that is as good as what had existed before our involvement.”

EPA’s increased scrutiny of mountaintop removal operations, while commendable, nonetheless represents action that is legally mandated by the CWA. According to Mr. Lovett, “EPA should do much more than it has done so far.” Under the CWA, authority to  establish and monitor water quality standards remains with the states. The Army Corps of Engineers has the principal responsibility for granting permit applications for activities proposing to discharge dredged or fill materials into the waters of the United States. EPA, however, retains oversight authority over Army Corps permit decisions. EPA’s authority to review applications for consistency with the law comes from Section 404(c) which  authorizes and compels EPA to determine whether permitted activities would result in “significant and unacceptable adverse impacts on municipal water supplies, and prohibit, restrict, or deny, including withdrawal, the use of any defined area as a disposal site.”

Indeed, given the chance to respond to Lovett’s accusations of environmental damage, industry representatives invited the subcommittee members to see for themselves reclaimed and restored mining sites in Appalachia. Rep. Dennis Kucinich (D-Ohio), referring to the recently released documentary The Last Mountain, pointed out that those who actually do visit mining sites come to conclusions that are “at variance to what the industry is saying.”

Kucinich was not alone in taking a stand against the claims of the industry.  Rep. Jackie  Speier (D-California) maintained a strong presence in the hearing.  “I’m a little mystified” she commented.  “These sections [of the CWA] that people are all tied up in a knot about…are not new. They’ve been on the books…the new administration comes in and is enforcing an existing law, and you’re all going crazy.”  She also addressed a recent study by  professors from West Virginia University that linked increased risk of birth defects in babies living around MTR mining areas.  She voiced her disgust with the industry’s  response to the study – that it was flawed because inbreeding was not considered as a factor that could cause higher rates of birth defects. “The coal industry’s response to the study was outrageous” she said.  “It doesn’t have anything to do with inbreeding.”

Mr. Lovett explained that EPA needs to do more because West Virginia public officials have a long history of assuring that “coal operators rather than environmental and local  citizens are protected” when issuing permits for mountaintop removal operations.

“Appalachian families should not have to choose between healthy watersheds and a healthy economy – they deserve both,” said Nancy Stoner, Acting Assistant Administrator  of the Office of Water at EPA. Responding to accusations that there exists a ‘permitorium’ on coal mining applications and permits in Appalachia, Ms. Stoner noted that  “so far this year, we understand that the Army Corps has authorized 18 Appalachian surface coal  mining projects under Section 404, and EPA looks forward to working with the Corps to ensure that pending and future projects receive effective, timely, transparent, adequate, and science-based review.”

“This climate of lawlessness” has existed for far too long, said Mr. Lovett. It is truly a shame that a practice so overtly destructive of the natural environment and the health of West Virginia citizens continues despite current laws that prohibit it. The CWA was passed by Congress more than 40 years ago. The “EPA overreach” described by the industry execs consists of nothing more than the proper and necessary enforcement of a federal statute that has long aimed to protect the health and environment of the residents of Appalachia.

See the hearing  web page for archived webcast and written testimony: “EPA’s Appalachian Energy Permitorium: Job Killer or Job Creator?”

Appalachian Center for the Economy & the Environment

The Appalachian Center is a non-profit public interest law and policy organization dedicated to protecting the communities and natural resources of central Appalachia and advocating for a just and sustainable economy for the region.

Earlier posts:

Study showing higher birth defect rates adds another note of urgency to banning mountaintop removal coal mining in Appalachia

“The LastMountain” – great documentary on mountaintop removal coal mining screening in theaters this summer

Mountaintop removal rally outside EPA headquarters excoriates ‘King Coal’ Congress members


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