Before blocking one of Appalachia's largest-ever mountaintop coal-mining projects this month, U.S. EPA agreed to allow blasting to start on a half-a-dozen other mountaintop mines.

Last July, for example, five months before EPA's landmark veto of Arch Coal Inc.'s permit for the 2,200-acre Spruce No. 1 mine in West Virginia, the agency greenlit plans from an Arch subsidiary, Coal-Mac Inc., to dynamite a third as many acres for the Pine Creek, W.Va., mine.

And last January, EPA signed off on plans from a former Arch subsidiary for another West Virginia mine, Hobet 45. Sited south of Charleston, the mine would have razed 602 acres and clogged 6 miles of streams. The mine owner, Patriot Coal Corp., reworked the plan to work in phases and reduce stream damage by half, which in turn appeased EPA.

EPA's compromises show nuanced exceptions to the Obama administration's tough approach to mountaintop mining: Companies that agree to blast in phases, one at a time, while monitoring and mitigating for environmental damage are more likely to get the green light. Companies unwilling to bargain over such details, as was the case with Spruce No. 1, get blocked (Greenwire, Jan. 13).

Neither miners nor environmentalists are happy. The additional scrutiny and requirements have enraged the industry. Environmental groups, while ecstatic over EPA's rejection of the Spruce mine, now want the administration to take an even tougher stand and put an end to mountaintop mining once and for all.

All eyes are on two applications sitting on top of the pile at EPA: the Little Fork mine proposed by Premier Elkhorn Coal Co., part of TECO Energy Inc., and the Stacy Branch mine that Leeco Inc., a James River Coal Co. subsidiary, has pitched. Both are in eastern Kentucky.

Those two are among 79 mining applications that EPA set aside for "enhanced" review in 2009, a move that sent a shudder through the industry. Dozens of those proposals have since been withdrawn. EPA is waiting on additional materials from 31 others before starting reviews. At least one firm that received a go-ahead, Kentucky-based Booth Energy, ultimately turned down the permit because of the conditions that came with it, according to an industry official.

"Our top line view is that all of this activity is illegal," said Carol Raulston, spokeswoman for the National Mining Association, a Washington-based trade group. "Local communities throughout Appalachia are extremely concerned about their economic futures if the policies that EPA is pursuing are allowed to continue."

Environmentalists, meanwhile, are urging an outright ban. They argue that even approving projects in phases amounts to a science experiment conducted on a massive scale in which bad results -- buried streams, polluted groundwater and decimated forests -- are irreversible.

Margaret Janes, senior policy analyst for the Appalachian Center for the Economy and the Environment, assessed the administration's mountaintop mining record this way: "We're hugely happy that EPA vetoed the Spruce permit, but it's a mixed bag."

Scientific, legal questions

Mountaintop coal mining -- dubbed "mountaintop removal" by opponents -- scrapes away vegetation and topsoil, then blasts exposed rock to uncover coal seams. Leftover dirt, rock and vegetation is dumped into adjacent valleys. The practice is most heavily used in West Virginia and eastern Kentucky.

Surface mining in the Appalachian Mountains accounts for about 11 percent of U.S. coal production annually and directly employs 31,000 in the region, where another 120,000 jobs depend on it, according to industry estimates.

But there are steep environmental and public health costs. EPA says mining kicks dust and smoke into the air and the dumped rubble buries mountain streams. Valley fills, as the dumps are called, can also infuse water with toxins, including metals and dissolved solids.

A peer-reviewed study published last January in the journal Science found higher incidents of heart problems, cancer and death among both men and women in the vicinity of mountaintop mining operations ( E&ENews PM, Jan. 7, 2010).

"The science is so overwhelming that the only conclusion that one can reach is that mountaintop mining needs to be stopped," the study's lead author, Margaret Palmer of the University of Maryland Center for Environmental Sciences, said when the study was released.

Further investigation is under way. EPA and West Virginia's state environmental agency last week awarded $600,000 to West Virginia University to investigate mountaintop mining's effects on local watersheds.

Mining opponents, meanwhile, have urged Congress to pass a law that would negate a 2002 decision by the George W. Bush administration to classify mining leftovers as "fill" that could be legally dumped into a waterway, given the appropriate Clean Water Act permit from the Army Corps of Engineers.

"We think it's really important that the administration get out of the business of permitting waste dumps in our nation's streams in the first place," said Jon Devine, senior attorney at the Natural Resources Defense Council. "The Clean Water Act was passed to stop the use of our waterways as waste receptacles."

Rep. Frank Pallone (D-N.J.) introduced legislation in the last Congress (H.R. 1310 (pdf)) that would have redefined "fill" under the Clean Water Act to exclude mining waste. The bill attracted 172 co-sponsors but failed to emerge from subcommittee.

Those efforts and others like it are even less likely to garner widespread support this Congress, with Republican control of the House, an anemic national economy and the fact that coal-state Democrats like West Virginia Sens. Joe Manchin and Jay Rockefeller are digging in their heels to defend the industry.

Manchin introduced a bill last week that would prevent EPA from retroactively vetoing a permit, as in the case of the Spruce mine (Greenwire, Jan. 20). Likewise, in the wake of Spruce, Rockefeller wrote a letter to President Obama objecting to the retroactive veto of the "dredge and fill" permit.

"As a nation we must not fall into the trap of forcing unnecessary choices between protecting the environment and having good paying jobs that support energy independence. We must demand both and find a responsible balance," Rockefeller wrote. The veto, he said, "does not strike that balance -- it seeks to tip the scales."

Looming decisions

Next up are the Little Fork and Stacy Branch projects.

EPA sent letters late last year to the companies behind the proposals expressing "significant" environmental concerns over the latest plans. Among other recommendations, EPA asked the companies to take a phase-by-phase approach that included monitoring for environmental impacts along the way as well as additional mitigation measures.

According to the EPA correspondence, Premier Elkhorn had already scaled-back its Little Fork proposal, reducing stream impacts from 1.3 miles to 1.1 miles and reducing the number of valley fills from six to five. Leeco's Stacy Branch mine would include six valley fills and would affect 4.3 miles of stream.

"EPA and the corps have been coordinating constructively with mining companies to resolve concerns so that environmental issues can be addressed at the permit application stage and projects may move forward," EPA spokeswoman Betsaida Alcantara said.

But the mining association's Raulston said EPA's directives have been anything but constructive.

Companies are hesitant to proceed under terms that require them to go back and seek permission from regulators every time they want to move into a new phase of a project, Raulston said.

"It's not the kind of permit that, in general, gives you the sort of assurance for the future that most operations need in order to commit themselves to invest the dollars needed to build out these mines," she said.

The industry, which is suing EPA, took heart from a judge's ruling last week that the industry would likely prevail on one aspect of its argument: that EPA failed to take the necessary procedural steps before changing its permitting process ( E&ENews PM, Jan. 18).

Judge Reggie Walton of the U.S. District Court for the District of Columbia noted that the question before the court did not address the environmental impacts of mountaintop mining.

Joan Mulhern, senior legislative counsel for Earthjustice, argues that the Clean Water Act protects EPA's right to revoke permits at any time, including retroactively, and also demands that regulators pay attention to "cumulative" impacts that could reach a level at which further mining would be unacceptable.

"I'm not sure where the EPA goes from here," Mulhern said. "But I think if they're going to be consistent and apply the same scientific information and legal rationale to other mines that they applied to Spruce, then we should see a lot fewer mines."

Copyright 2011 E&E Publishing. All Rights Reserved.