Corps MTR hearings: What they’re all about

With hearings tonight in West Virginia, Kentucky and Tennessee, folks in the coalfields get their first official chance to tell the Obama administration what they think of the “unprecedented steps” being taken to “reduce the environmental impacts” of mountaintop removal coal mining.

U.S. Army Corps of Engineers officials scheduled the hearings, as well as three more hearings Thursday in Pennsylvania, Ohio and Virginia, to gather public input on a proposal to end the streamlined processing of Clean Water Act permits for coal mining.

Coal industry supporters and mountaintop removal opponents are jumping on the Corps hearings as a chance to make their point, both to the government and, through the media, to the public.

Friends of Coal is urging its supporters to attend the hearings, calling the Corps’ proposal “simply another example of EPA ‘forcing’ another agency to accept their ‘anti-mining’ viewpoint.” The group continued:

It is another example of EPA using the Corps of Engineers as a front to bring “death to Appalachian coal mining through a thousand cuts” and take the jobs of our people and interrupt their families and their livelihoods.

Meanwhile, the Ohio Valley Environmental Coalition is telling its members:

It’s important that we get a good crowd out to show support for the Army Corps’ decision to stop issuing rubber stamp permits called “Nationwide Permits” — and to let them know that a lot more is needed to protect our communities from the devastating impacts of mountaintop removal.

Among the coal industry’s suggested talking points for this week’s hearings:

Coal mining operations rely on the ability to obtain NWP 21 permits in order to produce affordable coal-based electricity and to maintain and create thousands of high paying jobs throughout the eastern United States. The Corps relies on the ability to issue nationwide permits as a means for managing its workload. The Corps now proposes to eliminate use of these important permits having provided no scientific reason for why such a drastic step is necessary and without giving the public any information about how the Corps will absorb the increased burden on a regulatory program that is already backlogged by more than 250 coal related permits. The economic consequences will be significant on the industry and those communities that rely on the jobs and economic activity that flow from these projects.

And by way of a response, from the environmental community’s talking points to its supporters:

Before a company can start removing a mountain and dumping it into nearby valleys, there is supposed to be a rigorous permitting process to ensure that they will use good science, operate within the law and not harm nearby communities. Unfortunately, about one-third of mountaintop removal coal mining projects are approved under “nationwide permits.” These permits are designed for projects with “minimal impact” –but burying miles of streams under millions of tons of rubble is hardly “minimal impact.” During the Bush Administration, the Army Corps regularly granted nationwide permits for valley fills, even after federal judges found that the practice was illegal.

Ending Nationwide Permits will allow citizens more voice on mountaintop removal permits in their community–and it will require more scrutiny from government agencies to make sure permits are following the law and using good science. It will slow down mountaintop removal — but it won’t stop it.

Here in Charleston, tonight’s hearing starts at 7 at the Little Theater over at the Charleston Civic Center.  I previously posted the complete hearing schedule for the week here.

This is shaping up to be one of those public hearings that, while really focused on a somewhat narrow regulatory issue, is going to be expanded by all sides into an all-out debate (hopefully not a screaming match) on much bigger matters.

For example, there will undoubtedly be a lot of talk tonight about the EPA’s efforts to more closely examine 79 strip-mining permits that the Corps proposed to issue across Appalachia.  But those reviews are being done under a separate Obama initiative, for Enhanced Coordination Procedures aimed at mining permits that the Corps wants to issue, but EPA believes don’t currently comply with environmental limits.

By way of background, what the Corps is proposing is to stop using its general permit — called Nationwide Permit 21, or NWP 21 — for strip-mining operations in Appalachia. This was announced in mid-June, as part of a broader Obama administrative initiative on mountaintop removal.

Under the Clean Water Act rules, nationwide or “general” permits are supposed to be used to authorize “minor activities that are usually not controversial” and that would have only “minimal cumulative adverse effects on the environment.”   In this process, the Corps issues a permit with a standard set of environmental guidelines. Applicants are then authorized under this permit if they submit a general pledge to follow those guidelines. For years, the Corps approved valley fills — burying hundreds of miles of Appalachian streams — using these streamlined permit reviews.

Environmental groups have opposed the use of NWP 21 for mountaintop removal, arguing that this form of mining’s impacts are obviously more than minimal, especially on a cumulative basis. They also object to the very minimal public notice and input involved in review of a mining proposal under NWP 21.

As I’ve written before, U.S. District Judge Joseph R. Goodwin has already — for the second time — ordered the Corps to stop using NWP 21, at least in Southern West Virginia.  And oddly enough, the Obama administration — while proposing to get rid of NWP 21 — also filed a notice that it planned to appeal Goodwin’s ruling.

And despite what Friends of Coal wants people to believe, the Corps has infact explained why it’s proposing to do away with NWP 21. It’s right there in the original Federal Register notice:

Since NWP 21 was first issued in 1982, surface coal mining practices have changed, and surface coal mining activities in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia have become more prevalent and have resulted in greater environmental impacts. 

Mountaintop surface coal mining activities increased because many of the remaining coal seams in the Appalachian region were less accessible to non-surface coal mining techniques. Since the late 1990s, there have been increases in concerns regarding the individual and cumulative adverse effects of those activities on the human environment and the natural resources in this region, including streams and other aquatic resources.

The Corps continued:

… NWP 21 has been used to authorize surface coal mining activities that involve discharges of dredged or fill material into waters of the United States that have resulted in adverse environmental impacts that may be more than minimal on a cumulative basis.

For this reason, the Corps now believes that impacts of these activities on jurisdictional waters of the United States, particularly cumulative impacts, would be more appropriately evaluated through the individual permit process, which entails increased public and agency involvement, including an opportunity for public comment on individual projects.

It will be interesting to see if anybody from the coal industry shows up with a reasonable explanation of how it is that mountaintop removal does not have greater than minimal impacts, and why it should not be subject to increased public and agency scrutiny of the sort proposed by the Corps with this changed to Individual Permits.

Yesterday, the United Mine Workers union announced that its general counsel, Grant Crandall, would attend tonight’s hearing in Charleston to testify on the UMW’s behalf.  In a news release, union President Cecil Roberts objected to some confusion surrounding whether mountaintop removal operators should be applying for nationwide or individual permits:

We are very concerned about the continuing lack of direction mine operators are getting from the Corps of Engineers and the Environmental Protection Agency with respect to these permits, whether they be under the nationwide permit or individual permit applications. The testimony Grant Crandall will be presenting in Charleston will address these concerns, and we look forward to getting clear direction from these agencies very soon.

Watch and listen closely, to see if the UMW is willing to support tough environmental reviews of mountaintop removal, by backing the switch to Individual Permits. Does the union, as Robert says, want clear direction? Or is it backing the industry’s push to keep streamlined permit processing in place? (Of course, this hearing would also be a great chance for the UMW to officially denounce the comments of one of its local leaders, who equated the Obama administration’s efforts to more closely regulate strip-mining to “state-sponsored terrorism” or breaking into homes at night).

And keep in mind, the Corps has actually proposed to do two things: First, to end the use of NWP 21 for coal-mining operations in Appalachia; and Second, to suspend the use of NWP 21 while it goes through the longer process of ending its use for coal mining in the region.

In the UMW’s defense, this is a little confusing. But the Corps had this to say about it — giving what seems like clear direction to operators — in its original Federal Register announcement:

Pending the Corps final decision on the suspension of NWP 21, those entities
proposing surface coal mining activities involving discharges of dredged or fill material into waters of the United States in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia may wish to consider whether it would be more prudent to request individual permits instead of submitting NWP 21 PCNs. The information required for the submittal of a complete application for a standard individual permit is different from the information required for the submittal of a complete NWP 21 PCN. Since NWP 21 could be suspended before a district reaches a decision on an NWP 21 PCN, the prospective permittee may choose to initially request an individual permit to avoid having to later submit a separate application for a standard individual permit, thereby saving his or her time and resources during the permit decision making process.

Stay tuned … I’ll be covering tonight’s hearing in Charleston and posting a story on the Gazette’s Web site.