U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
Congressionally Requested
Information on the Status
and Length of Review for
Appalachian Surface Mining
Permit Applications
Report No. 12-P-0083
November 21, 2011
-------
Report Contributors:
Patrick Gilbride
Erin Barnes-Weaver
Karen L. Hamilton
Luke Stolz
Mary Anne Strasser
Abbreviations
CWA
Clean Water Act
ECP
Enhanced Coordination Procedures
EPA
U.S. Environmental Protection Agency
FY
Fiscal year
GAO
U.S. Government Accountability Office
IP
Individual permit
NWP
Nationwide permit
OIG
Office of Inspector General
OW
Office of Water
PCN
Preconstruction notification
SMCRA
Surface Mining Control and Reclamation Act
Cover photos: A mountainous landscape in Central Appalachia before (top) and after
(bottom) the mountaintop mine/valley fill process. (EPA photos)
Hotline
To report fraud, waste, or abuse, contact us through one of the following methods:
e-mail: OIG Hotline@epa.gov write: EPA Inspector General Hotline
phone: 1-888-546-8740 1200 Pennsylvania Avenue NW
fax: 202-566-2599 Mailcode 2431T
online:
http://www.epa.gov/oiq/hotline.htm
Washington, DC 20460
-------
*. U.S. Environmental Protection Agency 12-P-0083
| JfM^ \ Office of Inspector General November 21, 2011
At a Glance
Why We Did This Review
This review responds to a
request from the Ranking
Member of the Senate
Committee on Environment
and Public Works. The senator
asked us to determine: (1) the
status of a list of 237
mountaintop mining permit
applications and the length of
review time for each permit;
(2) reasons for the length of
review for each permit; and
(3) the number of permits that
the U.S. Environmental
Protection Agency (EPA) has
processed according to
"enhanced review" and
"conductivity" procedures, and
the average length of time to
process a permit under these
procedures.
Background
The U.S. Army Corps of
Engineers issues permits for
surface coal mining under
Section 404 of the Clean Water
Act. EPA assesses the
environmental and water
quality impacts of proposed
Section 404 permits.
For further information, contact
our Office of Congressional and
Public Affairs at (202) 566-2391.
The full report is at:
www.epa.aov/oia/reports/2012/
20111121-12-P-0083.pdf
Congressionally Requested Information on the
Status and Length of Review for Appalachian
Surface Mining Permit Applications
What We Found
After reconciling discrepancies and vetting information, we identified
185 surface mining permit applications to review from the list of 237 that we
received from the senator. In response to the senator's first request, we found that
over half of all permit activities—whether permitted, withdrawn, or pending—
have taken a year or longer, with approximately 40 percent exceeding 2 years.
Of our vetted universe of 185 projects, the Corps reviewed and issued 25 permits
within 144 days from the notification/application date. (According to EPA, this is
historically the average length of review for all individual permits, not simply
those for surface coal mining.) Of the 25, the Corps reviewed and issued
20 permits within 90 days and another 3 by 120 days (the Corps" goal). More
than one-third of issued permits took a year or longer to process.
In response to the senator's second request, we found that several reasons
account for the length of time associated with processing permit applications:
• Complex reviews based on new scientific evidence
• Applicant factors
• Involvement of EPA headquarters
• Corps procedural change
In response to the senator's third request, we found that EPA identified 79 permit
applications for enhanced review and, to date, has issued 8 permits. (The United
States District Court for the District of Columbia recently held that the EPA
operated beyond the scope of its authority under the Clean Water Act when it
instituted the enhanced coordination process, and the court ordered it to be set
aside.) In April 2010, EPA issued interim guidance that included conductivity
benchmarks for Appalachian projects. Conductivity is a measure of a stream's
ability to conduct an electrical current, and an EPA study observed an association
between high conductivities in streams below surface coal mining operations and
impairment of aquatic life. We found that, to date, EPA has commented on
24 projects in light of its April 1, 2010, interim guidance. EPA issued its final
guidance on July 21, 2011, which replaced the interim guidance. EPA said that
regions should begin consulting the final guidance immediately.
This report makes no recommendations to EPA. We plan to report separately to
EPA on one observation pertaining to recordkeeping.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
THE INSPECTOR GENERAL
November 21, 2011
MEMORANDUM
SUBJECT: Congressionally Requested Information on the Status and Length of
Review for Appalachian Surface Mining Permit Applications
Report No. 12-P-0083
FROM: Arthur A. Elkins, Jr
Inspector General
TO: Nancy K. Stoner
Acting Assistant Administrator for Water
This is a final report by the Office of Inspector General of the U.S. Environmental Protection
Agency. We conducted the assignment based on a request from the Ranking Member of the
Senate Committee on Environment and Public Works. The senator requested information
regarding a list of mountaintop mining permit applications. We do not make any
recommendations in this report.
Action Required
We provided you a copy of the draft report for comment on September 20, 2011. Your office
provided us with comments on October 13, 2011, and we met to discuss the report on
October 19, 2011. We made changes to the report as appropriate to address your comments, and
we will close this final report upon issuance.
If you or your staff have any questions regarding this report, please contact Melissa Heist at
(202) 566-0899 or Heist.Melissa@epa.gov. or Patrick Gilbride at (303) 312-6969 or
Gilbride.Patrick@epa.gov.
# JL \
|®|
-------
Congressionally Requested Information on the
Status and Length of Review for
Appalachian Surface Mining Permit Applications
12-P-0083
Table of C
Chapters
1 Introduction 1
Purpose 1
Background 1
Scope and Methodology 9
2 Status and Length of Review for List of 237 Permit Applications 12
Vetting the List of Permit Applications 12
Status and Length of Review 14
Reasons for Review Length 15
Documentation and Recordkeeping Issues 17
3 Status and Length of Review Under ECP and
April 1, 2010, Interim Guidance 18
Enhanced Review Process and Status of Projects 18
April 1, 2010, Interim Guidance 21
Status of Recommendations and Potential Monetary Benefits 25
Appendices
A Detailed Permit Application Information
B Distribution
26
59
-------
Chapter 1
Introduction
Purpose
The U.S. Environmental Protection Agency (EPA), Office of Inspector General
(OIG), received a letter of inquiry from the Ranking Member of the Senate
Committee on Environment and Public Works on October 15, 2010, requesting:
1. The status of a list of 237 mountaintop mining permit applications1
and the length of time to review each permit
2. The reasons for the length of review for each permit
3. The number of permits from the list of 237 that EPA has processed
according to the "enhanced review" and "conductivity" procedures, as
well as the average length of time to process a permit under these
procedures
All of the permit applications on the senator's list were for projects in the
Appalachian region, but not all the permit applications were for surface coal
mining. This report responds to the senator's request.
Background
Coal Mining in the Appalachian Region
The United States produced 1.1 billion tons of coal in 2009 and used it to generate
almost half of the electricity consumed nationwide. U.S. coal production from
Appalachian Basin states (figure 1) amounts to 40 percent of all U.S. coal
production. According to the U.S. Geological Survey, the northern and central
parts of the Appalachian Basin produce 93 percent of coal mined in the region.
In a July 15, 2009, Federal Register notice on surface coal mining,2 the U.S.
Army Corps of Engineers stated that, since 1982,3 surface coal mining activities
in the Appalachian region have become more prevalent and have resulted in
greater environmental impacts. Additionally, the Corps stated that, since the late
1990s, "there have been increases in concerns regarding the individual and
1 Since we found that not all of the applications on the senator's list were mountaintop mining permit applications,
as some pertained to other forms of coal mining, throughout our report, we generally refer to all applications as
surface coal mining permit applications.
2 Federal Register, Vol. 74, No. 134, Wednesday, July 15, 2009, Notices, p. 34311, "Proposed Suspension and
Modification of Nationwide Permit 21."
3 The U.S. Army Corps of Engineers first issued general permits for surface coal mining operations in 1982.
12-P-0083
1
-------
cumulative adverse effects of those activities on the human environment and the
natural resources in this region, including streams and other aquatic resources."4
Figure 1: Coal reserves in the Appalachian region of the United States
Lov/-vc« atile biluminDus coal
ana hugh-volatile
& I turn i nous coal
PA
WV
Source: U.S. Geological Survey.
Coal seams in the Appalachian region are difficult to access, which has led to an
increase in mountaintop coal mining, a type of surface mining. This type of
mining involves the removal of mountaintops (layers of rock and dirt above the
coal, called "overburden") to expose and extract coal seams. Companies dispose
of overburden into adjacent valleys, creating "valley fills." Figure 2 depicts the
mining and valley fill process. Since 1992, valley fill construction in the
Appalachian region has filled nearly 2,000 miles of Appalachian streams at a rate
of 120 miles per year.
4 Federal Register. Vol. 74, No. 134, Wednesday, July 15, 2009, Notices, p. 34311, "Proposed Suspension and
Modification of Nationwide Permit 21."
12-P-0083
2
-------
Figure 2: Mountaintop mining and valley fill process
Layers of rock and dirt above
the coal (called overburden)
are removed.
t I i i 4 I 3 I 2 I 'T^ ^
The upper seams of coal are
removed with spoils placed in
an adjacent valley.
-""rls S 4 3 2 1
Draglines excavate lower
layers of coal with spoils
placed in spoil piles.
r-f{ #l « |
Regrading begins as coal
excavation continues.
Once coal removal is
complete, final regrading takes
place and the area is
revegetated.
Source: EPA Mid-Atlantic Mountaintop Mining web page.
Regulation of Surface Coal Mining
Congress passed the Federal Water Pollution Control Act (hereafter the Clean
Water Act, or CWA) in 1972 as the principal federal statute protecting waters of
the United States' from pollution. CWA Section 404 regulates the placement of
dredged or fill material into waters of the United States, including wetlands.
Surface coal mining activities, including those that impact waters of the United
States, are complex processes subject to several key statutory provisions, and may
require the following permits: (1) a Corps-issued CWA Section 404 permit; (2) a
U.S. Department of the Interior-issued Surface Mining Control and Reclamation
Act (SMCRA)6 permit; (3) a state-issued CWA Section 4017 water quality
certification; and (4) a state-issued CWA Section 402 permit.
Although the Corps has responsibility for issuing CWA Section 404 permits,
EPA, in conjunction with the Corps, is responsible for developing and executing
guidelines for environmental evaluation of applications. EPA and the Corps
jointly developed CWA Section 404(b)(1), Guidelines for Specification of
Disposal Sites for Dredged or Fill Material, to outline environmental criteria used
to evaluate permit applications. In summary, the guidelines specify:
" Waters of the United States are defined in 40 Code of Federal Regulations 230.3. and include tributaries and
wetlands.
6 Congress passed SMCRA in August 1977 to establish a program for the regulation of surface coal mining activities
and the reclamation of abandoned mines.
States and tribes use CWA Section 401 to deny, certify, or condition federal permits and licenses by ensuring that
activities will comply with state water quality standards and other appropriate provisions of state law.
12-P-0083
3
-------
1. Discharge of dredged or fill material shall not be permitted if there is a
practicable alternative that would have less adverse impact on the
aquatic ecosystem.
2. Discharge of dredged or fill material shall not be permitted if it causes
or contributes to violation of any applicable state water quality
standards, violates any applicable toxic effluent standard, or
jeopardizes the existence of endangered or threatened species.
3. No discharge of dredged or fill material shall be permitted that will
cause or contribute to significant degradation of waters of the United
States.
4. With exceptions, no discharge of dredged or fill material shall be
permitted unless appropriate and practicable steps have been taken to
minimize potential adverse impacts on the aquatic ecosystem.
5. Compensatory mitigation is required for unavoidable impacts to
aquatic resources.
EPA reviews and comments on permit notifications under CWA Section
404(b)(1) to ensure protection of water quality and the environment. Table 1
depicts the specific roles and responsibilities of the Corps and EPA in the
permitting process.
Table 1: U.S. Army Corps of Engineers and EPA roles and responsibilities under
CWA Section 404
Corps
• Receives permit applications
• Conducts or verifies jurisdictional determination
• Develops policy and guidance
• Enforces CWA Section 404 provisions
• Administers the day-to-day program, including requesting and evaluating
information on permit applications and making final permit decisions
• Considers comments when determining whether to issue the permit, to issue the
permit with conditions, or to deny the permit
EPA
• Develops and interprets policy, guidance, and environmental criteria used to
evaluate permit applications
• Reviews and comments on individual permit notifications, the development of
general/nationwide permits, and general/nationwide permit preconstruction
notifications where applicable
• Determines scope of geographic jurisdiction and applicability of exemptions
• Approves state and tribal permitting programs, and oversees assumed programs
• Enforces CWA Section 404 provisions
Source: Information collected by the OIG based on a variety of sources.
12-P-0083
4
-------
The Corps may issue a permit only if it determines that the project represents the
least damaging practicable alternative. According to the 404(b)(1) guidelines, the
Corps must also ensure that the project proponent has taken "all appropriate and
practicable steps to avoid and minimize adverse impacts to waters of the United
States." EPA may choose to provide comments to the Corps within the prescribed
comment period or request a time extension. Under CWA Section 404(c), EPA
has the authority to veto or restrict the use of a disposal site if it determines that a
discharge of dredged or fill material is having or will have an unacceptable
adverse effect on, among other things, municipal water supplies, wildlife, or
recreational areas.8 EPA Regional Administrators can also elevate specific permit
decisions to EPA headquarters with a recommendation to request higher level
review within the Department of Army under CWA Section 404(q).
EPA's Office of Water (OW) in headquarters oversees national program
implementation for EPA's CWA Section 404 activities, and staff in EPA Regions
3, 4, and 5 work with local Corps districts and applicants to review surface coal
mining permit notifications and provide comments. In fiscal year (FY) 2010, the
Agency had 30 full-time equivalents (staff) involved in reviewing surface coal
mining projects, including CWA Section 404 permit reviews.9 The Agency
decreased staff to 23 full-time equivalents in FY 2011. EPA's total resources for
this work were a little over $600,000 in FY 2009; resources increased to
$4.2 million in FY 2010 and decreased to $2 million in FY 2011.
Surface Mining Applications and Permitting Process
The Corps can issue two types of permits under CWA Section 404: individual
permits (IPs) and general permits (including nationwide permits (NWPs)).
Individual Permits
IPs are issued for projects with potentially significant impacts. In
FY 2009, the Corps issued approximately 4,200 IPs. Once the Corps
receives a completed application from the applicant, the Corps issues a
public notification for comment. After issuing public notice, EPA and
other stakeholders have 15-30 days to comment on the notification. The
Corps' goal is to decide on all IP applications no later than 60 days after
receipt of a complete application, and the Corps may extend the 60-day
period.
The Corps evaluates applications under a public interest review, as well as
the environmental regulations (404(b)(1) guidelines) promulgated by EPA
8 EPA has issued 13 final veto actions since 1972. One final action was for the Spruce No. 1 Surface Mine.
According to EPA's website (http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/bigbranch.cfm'). the Agency has
also initiated a CWA Section 404(c) review of another proposed surface coal mine in Kentucky.
9 We learned that this FY 2010 staffing level is an increase over the FY 2009 level; however, we only received
FY 2009 data on full-time equivalents for headquarters, not regional, staff.
12-P-0083
5
-------
in conjunction with the Corps. A public interest review considers factors
such as conservation, economics, aesthetics, wetlands, navigation, fish and
wildlife values, water supply, and water quality.
General Permits
The Corps issues general permits (including NWPs, which authorize
activities on a nationwide basis unless specifically limited), for projects
with discharges that will have minimal adverse effects. In FY 2009, the
Corps issued approximately 45,000 general permits for all types of
activities, including NWP verifications. Nationwide permittees may, and
in some cases must, request from the Corps confirmation that an activity
complies with the terms and conditions of an NWP.
The general permit process allows certain activities with minimal
individual or cumulative impact to proceed with little delay or paperwork.
While an IP has a 15-30 day comment period, the comment period for the
NWP discussed in this report is 10 days. To obtain an NWP verification, a
project must satisfy the specific terms and conditions of the applicable
NWP, as well as the general NWP conditions, as appropriate, including:
• Maintaining open waters and causing no more than minimal
adverse effect on navigation, to the maximum extent practicable
• Avoiding impact to spawning and breeding locations for shellfish
and other aquatic life
• Protecting endangered species, wild and scenic rivers, and historic
properties
• Maintaining appropriate soil erosion and sediment controls
• Protecting critical resource waters, such as National Estuarine
Research Reserves
• Ensuring that projects comply with water quality certification
(CWA Section 401), unless waived
NWP 21—Surface Coal Mining Operations is a general permit that
authorizes discharges of dredged or fill materials into waters of the United
States associated with surface coal mining activities. From 1997 to 2010,
22 Corps districts issued 1,473 NWP 21 verifications, with approximately
1,204 (82 percent) of these for the Appalachian region.
On June 18, 2010, the Corps suspended NWP 21 in the Appalachian
region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West
Virginia. This decision was based on the Corps' concerns that continued
use of this permit in Appalachia may result in more than minimal
individual and cumulative adverse effects to aquatic resources. The Corps
took this action to ensure appropriate evaluation of these complex mining
activities. Currently, mining companies cannot apply for permits under
12-P-0083
6
-------
NWP 21 in Appalachia. Instead, companies must apply for IPs, which
entail additional steps in the permitting process, and afford more time and
opportunity for public comment and examination of possible adverse
environmental effects on aquatic resources.
The Corps reviews and considers all CWA Section 404 permit
applications in accordance with its procedures10 and completes tasks
shown in table 2 (italicized tasks common to all applications).
Table 2: Corps CWA Section 404 application review procedures
Individual permit applications
Nationwide permit applications
• Assign an application a number upon receipt. This number may exist prior
to the application submission, as the Corps may have issued it during a
jurisdictional determination action or upon first contact by the applicant.
• Determine application completeness
within 15 days of receipt. If the
application is incomplete, the Corps
requests additional information for
further processing.
• Determine application completeness
within 30 days where applicants
submit a preconstruction notification
(PCN). If the application is
incomplete, the Corps requests
additional information for further
processing.
• If complete, the Corps will publish a
public notice to appropriate federal
agencies and the public, and initiate
the comment period. IPs have a
minimum of 15 and maximum of
30 days for comment.
• If complete and if required, the Corps
will provide a copy of the PCN to
appropriate federal agencies. NWPs
have a comment period of 10 days.
• Consider all comments received in response to the public notice or PCN.
• After the applicant takes all necessary
actions, the Corps will determine
whether to issue the permit.
• After the applicant takes all
necessary actions, the Corps will
determine whether to issue the
verification.
Source: Information collected by the OIG based on a variety of sources.
The Corps may assign application numbers when it receives
correspondence of any type for a proposed project, such as when a
company requests a jurisdictional determination. Thus, the year listed as
the first part of the application number does not necessarily indicate the
age of the completed application, but instead reflects the first interaction
the company had with the Corps on the project (see, for example,
application numbers listed in the second column of appendix A). We noted
that some permit applications had multiple public notices or PCNs. This
could result from applicants withdrawing and resubmitting a permit
application or substantially revising their project. Thus, the notification
dates listed in appendix A may not be the first notification date for the
permit application.
111 Title 33 Code of Federal Regulations Part 325, "Processing of Department of the Army Permits."
12-P-0083
7
-------
Enhanced Coordination Procedures
From 2005 to 2009, CWA Section 404 permits were the subject of litigation in
West Virginia. While companies and agencies waited for the outcome of the
case,11 injunctions issued by the court during litigation limited the processing of
permit applications and created a backlog. On February 13, 2009, the United
States Court of Appeals for the 4th Circuit reversed a district court opinion that
rescinded four permits in West Virginia. To efficiently process pending
applications, some of which were several years old, EPA and the Corps issued
Enhanced Coordination Procedures (ECP) on June 11, 2009, to address the
backlog of permit decisions. EPA and the Corps developed the ECP to process
outstanding applications and to:
• Provide for timely resolution of issues for permits for which the
agencies have substantial environmental concerns
• Ensure effective coordination among the agencies and consistent
compliance with CWA requirements, regulations, and relevant policy
• Expedite review and final decisions regarding pending permits for
surface coal mining operations in the Appalachian region
• Provide additional transparency to the public
The Corps and EPA applied the ECP to surface coal mining permit applications in
the Appalachian region for which the Corps had issued a public notice or
coordinated with EPA through the NWP coordination process by March 31, 2009.
There were initially 108 CWA Section 404 permit applications included on the
June 11, 2009, list subject to the ECP.
EPA narrowed the list to 79 CWA Section 404 permit applications in a
memorandum on September 30, 2009.12 This was the final ECP list. Permit
applications submitted to the Corps after March 31, 2009, are not subject to the
ECP, and EPA and the Corps process them according to the Corps' standard
permitting process. The senator's list of 237 permit applications included 77 of
the 79 permit applications on the final ECP list.
EPA identified these 79 permit applications for the ECP due to environmental
concerns in four key areas:
1. The potential for reduction in impacts to aquatic resources through
additional avoidance and minimization
11 Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009).
12 From the initial list of 108, EPA and the Corps removed 31 projects and added 2 projects, resulting in a total of
79 projects remaining on the ECP list. Of the 31 projects removed, 13 were withdrawn, 8 already had permits, 3 had
ongoing enforcement actions that precluded a permit decision, 1 permit application was not complete, 1 project was
for work that did not require a permit, and 5 were for underground mining projects determined not appropriate for
the ECP.
12-P-0083
8
-------
2. The potential for excursions from applicable state or federal water
quality standards
3. The potential for significant cumulative effects from historic, current,
and proposed surface mines
4. The adequacy of compensatory mitigation to offset lost aquatic
functions
Chapter 3 provides the status of ECP permit applications as of our review cut-off
date of May 27, 2011. Subsequent to our review, on October 6, 2011, the United
States District Court for the District of Columbia13 ruled that, with the adoption of
the ECP, EPA exceeded its statutory authority afforded by the CWA. The court
also ruled that the ECP are legislative rules not exempt from the Administrative
Procedure Act's notice and comment rulemaking requirements. The court ordered
the ECP be set aside as an unlawful agency action.
Scope and Methodology
We conducted our work from October 2010 to September 2011 in accordance
with generally accepted government auditing standards. Those standards require
that we plan and perform our review to obtain sufficient, appropriate evidence to
provide a reasonable basis for our findings and conclusions based on our
objectives. We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our objectives.
To address the senator's first question, we reviewed relevant laws, regulations,
policies, procedures, and guidance governing the CWA Section 404 permit
application process. We analyzed information from OW, the Corps, and the U.S.
Government Accountability Office (GAO). We conducted interviews with EPA
(OW and Regions 3, 4, and 5), GAO, and the Corps to understand and document
CWA Section 404 roles and responsibilities, and to determine time frames for the
process. We conducted site visits to Regions 3, 4, and 5 to review documents and
determine the status of the 237 permit applications on the senator's list.
To address the senator's second question, we received information from the Corps
on reasons for delay. We conducted interviews with EPA staff in Regions 3, 4, and
5, and reviewed documentation, to determine and verify reasons for various lengths
of review for the 237 permit applications. We also interviewed personnel from five
mining companies to ascertain any impacts from permit application time frames.
To address the senator's third question, we reviewed the June 11, 2009,
memorandum of understanding among the U.S. Department of the Army, U.S.
Department of the Interior, and EPA implementing the Interagency Action Plan
on Appalachian Surface Coal Mining. We reviewed the ECP memorandum and
all related documents. We also reviewed EPA's Detailed Guidance: Improving
13 National Mining Ass'n v. Environmental Protection Agency. l:10-cv-01220-RBW (D.C. District Court, Oct. 6,
2011) (Doc. #96, Memorandum Opinion and Order).
12-P-0083
9
-------
EPA Review of Appalachian Surface Coal Mining Operations under the Clean
Water Act, National Environmental Policy Act, and the Environmental Justice
Executive Order, dated April 1, 2010 (hereafter the April 1, 2010, interim
guidance). We reviewed documents provided by Regions 3, 4, and 5, and
interviewed EPA staff in OW and Regions 3, 4, and 5. We interviewed personnel
from five mining companies to understand their viewpoint on the ECP process.
We determined the status of permit applications for which EPA considered its
April 1, 2010, interim guidance by tallying comment letters written by EPA
subsequent to April 1, 2010, and by looking at issued or withdrawn dates and
pending permits.
Limitations
We were unable to retrieve complete records for the timeline and events of each
application because the Corps administers the permit application process and
maintains official records for each application, and we do not have jurisdiction
over the Corps. We received some information from the Corps that augmented
what we obtained from EPA. However, we did not receive source documents
from the Corps, and we did not independently verify information we received
from the Corps. Instead, we relied on testimonial evidence for some components
of our work (i.e., reasons for the length of review of IP applications). However,
we believe that our additional work steps provided sufficient and appropriate
evidence to support our findings and conclusions.
We selected May 27, 2011, as the cut-off date for our analysis because that is the
date the Corps provided project status information to the senator's staff, who then
provided it to our team. Appendix A includes project-specific information we
obtained from EPA and the Corps.
Prior Audit Coverage
GAO issued a briefing report on October 19, 2010, in response to a congressional
request on CWA Section 404 permit reviews under the ECP in Appalachia.14
GAO focused its briefing on ECP coordination efforts in West Virginia and, as
such, included EPA Region 3 and the Corps' Huntington District in its scope.
GAO's briefing provided the status of all 79 ECP projects as of August 11, 2010.
GAO made several observations, including:
• Agencies did not establish time limits for coordination that occurs
prior to the start of the ECP 60-day review process.
• EPA did not send decision makers to coordination meetings.
• EPA officials believe CWA Section 404 reviews require a detailed,
case-by-case look.
14 GAO's briefing report, EPA and the Corps' CWA Section 404 Permit Reviews Under Enhanced Coordination
Procedures, GAO-11-101R, was requested by the Chairman of the House Committee on Natural Resources. The
briefing was given on September 16, 2010, and the report was issued on October 19, 2010.
12-P-0083
10
-------
• While some applicants resisted opportunities to coordinate with the
agencies about reducing project impacts and complying with the law,
other applicants effectively collaborated with EPA and the Corps to
achieve positive permit outcomes.
GAO could not evaluate the extent to which EPA Region 3 and the Corps'
Huntington District had coordinated throughout the process because of limited
and varied documentation. We made similar observations in our review with
regard to documentation.
12-P-0083
11
-------
Chapter 2
Status and Length of Review for
List of 237 Permit Applications
After reconciling discrepancies and vetting information, we identified 185 surface
mining permit applications to review from the list of 237 that we received from
the senator. The other 52 were not permit applications for surface coal mining,
were already permitted or withdrawn, or were a duplicate application. Of these
185, the Corps reviewed and issued 25 permits within 144 days from the
application/notification date, which is historically the average length of review for
all IPs (all activities, not simply surface coal mining) according to EPA. Of those
25 permits, the Corps issued 20 within 90 days, and another 3 by 120 days, which
is the Corps' goal. More than one-third of issued permits took a year or longer to
process, and 110 permit activities (59 percent)—whether issued, withdrawn, or
pending—have taken a year or longer to process. Over 40 percent of the 185
applications exceeded 2 years. We found that several reasons account for length
of time in processing permit applications:
• Complex reviews based on new scientific evidence
• Applicant factors
• Involvement of EPA headquarters
• Corps of Engineers procedural change
Vetting the List of Permit Applications
Litigation in 2009 between an environmental organization and a coal company
resulted in a backlog of CWA Section 404 permit applications. The 4th Circuit
Court of Appeals reached a decision15 in early 2009 validating the Corps' permit
actions. Following the court decision, the Corps developed a list of pending
permit applications and continually reworked its list, in consultation with EPA, to
arrive at the final list of applications for review under the ECP. EPA announced
the final list on September 30, 2009.
We analyzed the Corps' list to account for all 237 permit applications listed in the
senator's request. Figure 3 breaks down the 237 permit applications on the list
that we received from the senator, which was based on Corps data dated May 12,
2009.
15 Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009).
12-P-0083
12
-------
Figure 3: Breakdown of the senator's list of 237 permit applications
153 applications are further
broken out into two lists.
List of 237 applications received from the senator.
84 applications were
processed under regular
Corps procedures.
106 from the list of 108 applications from the
6-11-09 EPA/Corps letter discussing the ECP.
EPA identified 6
applications for which it
had substantial
environmental concerns,
41 from the list of 42
applications for which
EPA did not have
concerns.
29 applications
were processed
under regular
Corps procedures,
77 from the list of 79 applications
from the 9-30-09 EPA letter to the
Corps elevating permits for further
review under the ECP,
47 from the list of 48 applications developed in early
March 2009 (after February court decision) where the
Corps anticipated reaching a final permit decision
within 60 days. This list was developed prior to the
ECP list and the 48 were not on the ECP list.
Source: OIG analysis of Corps and EPA lists, and interviews with Corps and EPA staff.
Our analysis of the Corps' list of 237 applications revealed inaccuracies based on
data from our file reviews at EPA Regions 3, 4 and 5, and information we
received from the Corps. For example, we noted that many permit applications on
the list we received from the senator were not surface mining projects but
underground mines, jurisdictional determinations, or other types of projects. The
Corps regional coal expert explained that many of the lists developed after the
4th Circuit decision were put together quickly and that he would have preferred
more time to verify the information. Examples of inaccuracies on the list of 237
include 28 applications that had been permitted or withdrawn prior to May 12,
2009, and one duplicate; yet, the list included them as pending applications.
Table 3 shows what we were able to ascertain about the list of 237 permit
applications.
12-P-0083
13
-------
Table 3: Vetted information for applications on the senator's list of 237
Description
Number
List total
237
Less applications that should not be included and inaccuracies:
Duplicate
<1>
Applications that were permitted or withdrawn before May 12, 2009
<28>
Applications that are not surface mines
<23>
Applications remaining from the list of 237
185
Permits issued
56
Withdrawn applications
63
Pending applications
66
Source: OIG analysis of Corps and EPA data based on a cut-off date of May 27, 2011.
Table 3 shows that 185 surface mining permit applications remained16 after
analyzing data on the 237 applications listed in the request from the senator.17 As
of May 27, 2011, 66 surface mining applications out of 185 were pending.
Status and Length of Review
Corps regulations govern the permit application process and allow 60-90 days for
IP application review and processing. However, the Corps stated that it has an
internal goal to process permit applications within 120 days. In contrast, EPA
informed us that, on average, review and processing of an IP application for all
types of activities (not specific to surface coal mining) takes 144 days.18 Table 4
shows the status and length of review for the 185 surface mining applications.
16 One permit application included in the 185 surface mining permit applications was for an NWP 50—Underground
Coal Mining Activities. We included this permit application as it was part of the list of 79 permit applications
subject to the ECP.
17 Applications for IPs and NWP 49 permits on the list could be for mining activities other than surface mining.
18 Corps regulations allow additional time for extensions and exceptions.
12-P-0083
14
-------
Table 4: Status and length of review of vetted 185 permit applications from the
senator's list of 237 as of May 27, 2011
Length of time
Issued
Withdrawn
Pending
Total applications
0-90 days
20
8
13
41
91-120 days
3
0
1
4
121-144 days
2
0
0
2
145-365 days
12
5
11
28
366-730 days
13
16
6
35
>731 days
6
34
35
75
Total applications
56
63
66
185
Source: OIG analysis of Corps and EPA data.
Note: For the length of review, we counted the days from the application/notification date
to the action (issued or withdrawn) or, for pending permits, to our cut-off date of May 27,
2011.
Table 4 shows that, out of a universe of 185 projects, the Corps issued 56 permits
(or 30 percent). Of these 56 issued permits, the Corps reviewed and processed 23
within its stated goal of 120 days. Table 4 also shows that 31 of the 56 took longer
than the IP average review time of 144 days. Of the 66 pending applications,
41 applications (62 percent) have been in process for over 1 year. In fact, table 4
shows that 110 permit activities (59 percent)—whether issued, withdrawn, or
pending—have taken a year or longer to process, with 75 out of 185 activities (or
41 percent) exceeding 2 years.
Chapter 3 describes the status of a subset of these 185 permit applications—those
79 that EPA and the Corps identified for enhanced review. Appendix A provides
additional detail on all projects.
Reasons for Review Length
The senator's office provided us the project status information as of May 27,
2011, that it received from the Corps. The Corps provided the information to the
senator's office in spreadsheet/summary format. The spreadsheet included the
reasons for delays that Corps project managers denote in an internal Corps
database. The Corps provided the following general reasons for delays:
• Applicant (e.g., the Corps noted instances in which it waited for
responses from applicant to requests for information)
• Other approvals (CWA Section 401, CWA Section 402, SMCRA)
• Resolution of comments
• Issues related to final mitigation plan
• Endangered Species Act consultation
• Issues related to historic property
12-P-0083
15
-------
We observed these and other reasons for the length of review based on our
document reviews and site visits with Regions 3, 4, and 5. The following
summarizes reasons that we identified.
More Complex Reviews
EPA said that the most significant contributor to the time required to review
CWA Section 404 projects is the complexity of these projects, which necessitates
careful evaluation by the agencies to ensure that permits comply with the CWA
and reflect best-available science. EPA staff also said that the Agency and the
Corps are conducting more comprehensive reviews of Appalachian surface
mining applications due to new scientific evidence and enhanced interagency
coordination. According to EPA, recent scientific studies have pointed to a
substantial body of evidence of significant environmental consequences
associated with Appalachian surface coal mining activities, including harmful
biological effects of increased conductivity levels exhibited downstream of
surface mines. According to EPA, many of its comment letters over the past
several years show that conductivity concerns have existed for some time, but that
the emerging science and the change in Administration provided renewed focus
on these issues. As we noted in chapter 1, EPA increased staff and budget in
FY 2010 to conduct these complex reviews.
Applicant Factors
Similar to the first reason given by the Corps, regional staff told us that, at times,
an applicant does not provide all material necessary for the Corps to complete the
process or for EPA to conduct its review. In these cases, regional staff said the
Corps requests additional information from the applicant and waits for a response.
Absent a timely response from the applicant, the Corps will administratively
withdraw an application.
Some mining companies submit permit applications for multiple projects. When
the Corps requests additional information, the applicant may prioritize its pending
applications and place some on hold.
Regional staff also stated that delays may occur when one mining company
purchases another company. Ownership changes result in changes to mine plans,
which often delay processing.
Involvement of EPA Headquarters
As part of reviewing applications and submitting comment letters, EPA regional
staff may work with the applicant directly or, more often, through the Corps, to
resolve concerns as part of reviewing notifications and submitting comment
letters that identify outstanding issues and minimize environmental impact. We
heard from both the Corps and EPA that it takes time to resolve permit issues, and
12-P-0083
16
-------
that visits to the field are vital to aid understanding.19 We noted examples in
which EPA headquarters staff reworked agreements made in the field between
EPA regional personnel, the Corps, and mining companies. We also noted an
instance in which EPA headquarters revised comment letters written by regional
staff. This instance required EPA regional personnel to meet again with the Corps
and the applicant to resolve issues that stakeholders thought they addressed
through earlier meetings and correspondence.
GAO reported stakeholders' frustration that EPA decision makers did not attend
meetings to clearly communicate what might be needed to satisfy EPA's
concerns. Interviewees made similar comments to us during our review. One EPA
official said the Section 404 program has a unique relationship with headquarters,
as some decisions (e.g., elevations and vetoes) are made in Washington, DC,
which is different from other Clean Water actions in which the Regional
Administrator has primary responsibility. An EPA staff person said that
headquarters is typically involved on issues of such high significance and priority
for the Agency.
Procedural Change
The Corps suspended NWP 21 on June 18, 2010, requiring applications that the
Corps would have approved under NWP 21 to undergo the more rigorous IP
review process. An IP requires additional time for public comment and
examination for possible adverse environmental effects. IPs often entail complex
reviews and detailed comment letters from EPA, other federal agencies, and other
stakeholders.20
Documentation and Recordkeeping Issues
We might have been able to clarify the numbers of permit applications in our
review more quickly if EPA had better documentation and recordkeeping. We
have drafted a separate report to EPA on recommendations to improve its
recordkeeping. We noted that EPA and the Corps share limited information on
permit applications. EPA did not, at the time of our review, have an information
system to track data for permit applications. Rather, regional personnel
maintained individual records to document their evaluations, and documentation
varied by individual reviewer. EPA staff said the Agency is not the official
recordkeeper for the surface mining application process (the Corps is the agency
of record); however, we found that EPA did not consistently document actions it
took on permit notifications.
19 EPA regional staff said that the Agency's current budget/travel cuts will limit planned travel for site visits and
field meetings.
20 At the time of the suspension of NWP 21, there were five NWP 21 applications pending in the Appalachian region
that were affected. We are unsure how many of these 5 appear on the list of 237. However, the suspension of
NWP 21 could affect the 66 pending applications on the list, as well as all future permit applications, because the
applicant will be required to apply for an IP, which results in a longer processing time.
12-P-0083
17
-------
Chapter 3
Status and Length of Review Under ECP and
April 1, 2010, Interim Guidance
EPA and the Corps developed the ECP process to expedite review of permit
applications backlogged due to litigation. (As noted above, the ECP process was
set aside by the court.) The 79 ECP projects identified by EPA on September 30,
2009, will not increase. In contrast, EPA applied its April 1, 2010, interim
guidance (which referenced studies on the impact of conductivity) to all permit
applications submitted after that date, or submitted prior to that date but on which
EPA has yet to comment. As of our cut-off date of May 27, 2011, EPA has
commented on 24 projects in light of the April 1, 2010, interim guidance, and the
universe of notifications reviewed in light of the guidance will grow to include
permit applications for new mining operations and applications under review from
the now set aside ECP process. The April 1, 2010, interim guidance did not set a
timetable for conductivity analysis. Conductivity is one of many environmental
and water quality factors EPA considers when it reviews permit notifications per
CWA Section 404.
Enhanced Review Process and Status of Projects21
According to EPA and the Corps, the ECP gave EPA another chance to comment
on projects that it did not comment on during the previous notification period.
EPA also explained that the ECP provided EPA and the Corps opportunity to
more closely evaluate pending surface coal mining projects on which there were
remaining water quality and/or regulatory compliance issues. The 79 ECP
applications followed the same process as other permit applications, with the
following additional coordination as outlined in the now set aside EPA-Corps
enhanced procedures, dated June 11, 2009:
1. The Corps, EPA, and applicant/stakeholders work to resolve permit issues
before the ECP 60-day review period begins.
2. The Corps must provide EPA written notice of the start of the 60-day
review period.
21 As noted, we reviewed the status of ECP projects as of our cut-off date of May 27, 2011. In light of the district
court's decision setting aside the ECP (National Mining Ass'n (Oct. 6, 2011 Memorandum Opinion and Order)),
EPA indicated that pending ECP projects will be evaluated by the Corps and EPA under existing regulatory and
statutory procedures. EPA has 60 days to appeal the district court's decisions, which it has not yet done. EPA
indicated that it is currently working with the Corps and the U.S. Department of Justice to make that decision.
12-P-0083
18
-------
3. The Corps can extend the 60-day clock for 15 days or beyond if agreement
on outstanding issues has not been reached. EPA can request a 15-day
extension if permit concerns are not resolved within the 60-day period.
4. The Corps can issue a permit with outstanding EPA concerns, but must
inform the appropriate EPA region of its decision to issue a permit, and of
plans for resolution of EPA's concerns, within 10 days. If this happens,
EPA must respond to the Corps within 10 days on whether EPA will
pursue issues via veto authority under CWA Section 404(c) or whether
EPA will not take further action.
Table 5 shows the status, as of May 27, 2011, of the 77 ECP permit applications
on the list of 237. The list of 237 did not include 2 ECP projects, thus resulting in
77 ECP projects instead of the 79 projects identified by EPA in the final ECP
memorandum on September 30, 2009.
Table 5: Status of ECP permit applications on the senator's list of 237
Status of permit applications
Number
Total
77
Issued
8
Withdrawn
40
Withdrawn and resubmitted outside ECP
6
Pending
23
Source: OIG analysis of Corps and EPA data based on a cut-off date of May 27, 2011.
Table 5 shows that, of the 77 ECP permit applications on the list of 237, 54 (or
70 percent) have been issued, withdrawn, or withdrawn and resubmitted outside
the ECP.22 For the eight permits issued, once the Corps started the 60-day clock, it
took on average approximately 112 days for permit issuance. Our review also
identified two ECP projects for which the Corps started the 60-day clock but then
applicants withdrew their applications. From when EPA and the Corps issued the
final ECP list on September 30, 2009, to our cut-off date of May 27, 2011,
604 days had elapsed. Appendix A provides additional detail on individual
projects and denotes ECP projects in gray highlighting.
For projects that remain from the now set aside ECP process, those will be
evaluated by the Corps and EPA under existing regulatory and statutory
procedures. Regarding those projects, Corps staff explained that the Corps
awaited either additional information from the applicant or sufficient status
information on a state CWA Section 401 certification or state SMCRA permit.
The Corps explained that before initiating the ECP 60-day coordination period, at
a minimum the Corps district should have sufficient information regarding:
22 Of the six ECP projects that were withdrawn and resubmitted outside of ECP, one was issued and five were
pending when the district court set aside the ECP. The 2 projects included on the ECP list of 79 that were not
included on the senator's list were both outstanding as of our cut-off date of May 27, 2011.
12-P-0083
19
-------
• Avoidance and minimization
• Mitigation
• Cumulative impacts
• Status of SMCRA permit
• Status of CWA 401 certification
• Status of CWA 402 permit
• Endangered Species Act consultation complete (if necessary)
• Coordination complete under Section 106 of the National Historic
Preservation Act (if necessary)
To facilitate timely resolution, the ECP encouraged each Corps district and EPA
region to begin discussions immediately, before triggering the 60-day clock, on
those permit applications requiring additional review and coordination. EPA staff
explained that EPA worked to coordinate with the Corps and applicants prior to
the start of the ECP 60-day clock. In addition, EPA staff said regions hold regular
meetings to discuss permit applications.
As table 5 shows, the majority of permit applications on the ECP list have been
withdrawn. Should applicants decide to resubmit these withdrawn applications,
the Corps and EPA would review resubmitted proposals outside of the ECP
process. However, both Corps and EPA staff said that the level of review would
be the same outside of the ECP as within the ECP. The ECP was intended to
provide an expedited review and established additional time frames as described
above. Corps staff said they try to explain to applicants that there is no benefit to
withdrawing and resubmitting because EPA has assured the Corps that it will look
at all other projects with the same criteria as an ECP project. According to EPA,
this includes reviewing for compliance with existing regulations (the 404(b)(1)
guidelines).
ECP in Practice
During our review, we noted varying levels of success with the ECP. One area of
success was in EPA Region 5, which had 6 of the 79 projects on the ECP list and
worked with the Corps to resolve issues related to these within 10 months of
issuance of the final ECP list (in some cases, these permits were withdrawn).
Also, to provide additional transparency, EPA created a website for the 79
projects on the ECP list.23 The website includes project status and links to other
information, such as copies of comment letters (where applicable).
The ECP did not expedite the review process on every project. For example, one
project's ECP 60-day clock started in mid-September 2010 and, as of May 27,
2011, the project had yet to receive a permit. Both EPA and the Corps described
the back and forth between the agencies and applicant throughout the process.
23 See http://water.epa.gov/lawsregs/guidance/wetlands/mining-proiects.cfm.
12-P-0083
20
-------
Although a decision on the application seemed to be forthcoming, EPA said that
headquarters and Region 4 recently worked with the permit applicant to evaluate a
new plan for the project that, according to EPA, would further reduce
environmental impacts and allow mining to proceed.
Industry Perspective
We spoke with five mining companies to get an industry perspective on the ECP.
All of the companies with whom we spoke said that the increased coordination
between agencies slowed the permitting process and increased review time. Many
believe that EPA has overstepped its role in the CWA Section 404 review process,
and company representatives seemed frustrated with what they perceived as
EPA's increased role. Some said that EPA was responsive to requests and
questions, and worked with the companies to resolve issues.
April 1, 2010, Interim Guidance
Conductivity Description and Impetus for April 1, 2010, Interim
Guidance
Conductivity is a measure (in units known as microSiemens per centimeter
([j,S/cm)) of a stream's ability to conduct an electrical current. It measures the salt
content of water because saltier water more readily conducts electricity. A study
by EPA scientists observed an association between high conductivities in streams
below surface coal mining operations and impairment of aquatic life.24
On April 1, 2010, EPA issued Detailed Guidance: Improving EPA Review of
Appalachian Surface Coal Mining Operations under the Clean Water Act,
National Environmental Policy Act, and the Environmental Justice Executive
Order. EPA stated that it issued this interim guidance to clarify its expectations of
the Agency's review of Appalachian surface coal mining operations with respect
to existing provisions of the CWA, National Environmental Policy Act, and
Environmental Justice Executive Order (Executive Order 12898). As such, this
guidance applied to EPA's review of all CWA Section 402 and 404 applications
for Appalachian surface coal mining operations, including those Section 404
permit applications subject to the ECP. EPA issued its final guidance, which
replaced the interim guidance, on July 21, 2011. EPA said that regions should
begin consulting the final guidance immediately.
EPA cited three key considerations for the issuance of the interim guidance:
24 Pond, G.J., M.E. Passmore, F.A. Borsuk, L. Reynolds, and C.J. Rose. 2008. Downstream effects of mountaintop
coal mining: comparing biological conditions using family- and genus-level macroinvertebrate bioassessment tools.
J. N. Am. Benthol. Soc. 2008, 27(3):717-737.
12-P-0083
21
-------
1. Publication of technical information documenting the scope and
significance of adverse environmental and water quality effects associated
with surface coal mining practices.
2. Recent reviews of permitting actions under CWA Sections 402 and 404
for Appalachian surface coal mining that demonstrate how current
permitting practices can be more effective in addressing adverse
environmental and water quality effects associated with coal mining by
more robustly conducting analyses required by the CWA.
3. Extensive work done by EPA's scientific offices evaluating the
relationship between pollutants in streams associated with surface coal
mining and impacts from these pollutants on aquatic ecosystems.
EPA's interim guidance cited scientific studies on the impact of conductivity on
aquatic life.25 The interim guidance included conductivity benchmarks of 300 and
500 [j.S/cm.26 Below 300 [j,S/cm, EPA anticipates that the conductivity impacts of
projects will not cause a water quality standard violation or significant
degradation of the aquatic ecosystem. EPA believes that projects projected to
increase conductivity levels above the 300 level should include permit conditions
requiring adaptive remedial action to prevent conductivity levels from rising to
levels that may contribute to water quality degradation. At the 500 or greater
level, EPA believes the scientific data demonstrate that water quality may be
adversely affected and aquatic life impacted. EPA believes that if a proposed
Section 404 permit allows for increases above the 500 level, the administrative
record for the permit should demonstrate how the permit is consistent with the
CWA and the CWA Section 404(b)(1) guidelines.
EPA's interim guidance also lists as a best management practice the sequencing
of valley fills. Sequencing generally means that only one valley fill should be
authorized and demonstrated to be protecting water quality before constructing
25 Pond, G.J., M.E. Passmore, F.A. Borsuk, L. Reynolds, and C.J. Rose. 2008. Downstream effects of mountaintop
coal mining: comparing biological conditions using family- and genus-level macroinvertebrate bioassessment tools.
J. N. Am. Benthol. Soc. 27(3):717-37. Kennedy, A.J., D.S. Cherry, and R.J. Currie. Field and laboratory assessment
of a coal processing effluent in the Leading Creek Watershed, Meigs County, Ohio. Archives of environmental
contamination and toxicology 44:324-31. Kentucky Department for Environmental Protection, Division of Water,
Water Quality Branch. Effects of Surface Mining and Residential Land Use on Headwater Stream Biotic Integrity in
the Eastern Kentucky Coalfield Region. Kennedy A. J., D.S. Cherry, and C.E. Zipper. Evaluation of Ionic
Contribution to the Toxicity of a Coal-Mine Effluent Using Ceriodaphnia dubia. Archives of environmental
contamination and toxicology 49.2:155-62. Pond, G.J. Patterns of Ephemeroptera taxa loss in Appalachian
headwater streams (Kentucky, USA). Hydrobiologia 641(1): 185-201. U.S. EPA. 2011. A Field-Based Aquatic Life
Benchmark for Conductivity in Central Appalachian Streams. Office of Research and Development, National Center
for Environmental Assessment, Washington, DC. EPA/600/R-10/023F.
26 The microSiemens level is based on Pond, G.J., M.E. Passmore, F.A. Borsuk, L. Reynolds, and C.J. Rose. 2008.
Downstream effects of mountaintop coal mining: comparing biological conditions using family- and genus-level
macroinvertebrate bioassessment tools. J. N. Am. Benthol. Soc. 27(3):717-37; and U.S. EPA. 2011 (draft). A Field-
Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams. Office of Research and
Development, National Center for Environmental Assessment, Washington, DC. EPA/600/R-10/023F.
12-P-0083
22
-------
subsequent fills. If the permittee demonstrates compliance with applicable water
quality standards and there is no significant degradation associated with the first
valley fill, the permittee may begin construction of subsequent valley fills. EPA
prefers that applicants use sequencing when the potential exists for water quality
impacts to occur. The interim guidance allows EPA to reevaluate this approach if
data suggest that constructing concurrent valley fills would not lead to water
quality concerns, and EPA said it will evaluate multiple valley fills on a case-by-
case basis.
The April 1, 2010, interim guidance had no set a timetable for conductivity
analysis, as conductivity is one of many environmental and water quality factors
EPA considers when it reviews permit notifications per CWA Section 404.
Industry groups and some Appalachian states have filed lawsuits against EPA,
alleging that its interim guidance exceeded the Agency's authority and amounted
to a rulemaking without required notice and comment under the Administrative
Procedure Act.
Number of Permits Reviewed After Issuance of April 1, 2010, Interim
Guidance
EPA applied its April 1, 2010, interim guidance in a future sense to all permit
notifications submitted after that date or submitted prior to that date but on which
EPA has yet to comment. EPA said it has consistently articulated, even before the
date of its interim guidance, concerns regarding the impacts of conductivity on
aquatic life following the publication of peer-reviewed scientific literature
documenting impacts.
Of the remaining 185 permit applications on the list, there were 24 surface mining
permit notifications on which EPA issued comments after it issued its April 1,
2010, interim guidance. To assess how many permit applications on the list of 185
EPA potentially reviewed or will review according to the April 1, 2010, interim
guidance, we looked at issued or withdrawn dates and pending permits. Of those:
• There were 49 surface mining permit applications/notifications that
were issued or withdrawn after April 1, 2010, that did not have EPA
comments issued after April 1, 2010, but, as the final action occurred
after the guidance, they could have potentially been reviewed using the
guidance.
• There are 49 surface mining permit applications still pending on which
EPA has not yet commented since April 1, 2010.27 As these permit
applications are still pending, they could potentially be reviewed using
the guidance.
27 EPA did provide comments before April 1, 2010, on six of these applications, but since they are still pending, any
EPA comments after April 1, 2010, would consider the guidance.
12-P-0083
23
-------
Appendix A provides additional detail on projects and denotes in blue font the
24 permit applications on which EPA commented.
Industry Perspective
Mining companies we interviewed said that the April 1, 2010, interim guidance
and conductivity benchmarks slowed and complicated the review process.
Companies also shared a concern that the benchmarks were arbitrary and not a
good way to measure water quality. Companies added that the best management
practice of sequencing valley fills created uncertainty for companies given the
difficulties of investing in projects that may not be completed as planned. One
company said that it was working on a new sequencing technique and that testing
has provided favorable conductivity results. This company gave EPA a
presentation on this new approach.
12-P-0083
24
-------
Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
POTENTIAL MONETARY
BENEFITS (In $000s)
Rec.
No.
Page
No.
Subject
Status1
Action Official
Planned
Completion
Date
No recommendations
Claimed
Amount
Ag reed-To
Amount
1 0 = recommendation is open with agreed-to corrective actions pending
C = recommendation is closed with all agreed-to actions completed
U = recommendation is unresolved with resolution efforts in progress
12-P-0083
-------
Appendix A
Detailed Permit Application Information
Table Notes:
• Gray highlighted entries denote ECP projects.
• Blue font denotes surface coal mining projects reviewed in light of EPA's April 1, 2010, interim guidance.
• If a public notification date was unknown, the application date was used and denoted in red font.
• For the section where actions were completed prior to May 12, 2009, green font denotes where we used withdrawn dates.
• The table lists 236 projects from the list of 237 we received from the senator because one project was duplicated/listed twice in the
senator's list.
Table Acronyms:
JD—Jurisdictional determination
NWP 14—Linear Transportation Projects
NWP 21—Surface Coal Mining Operations
NWP 32—Completed Enforcement Actions
NWP 49—Coal Remining Activities
NWP 50—Underground Coal Mining Activities
Permits Issued:
Company name Application Notification or EPA comment *
n ¦ J u * - . - *i * i .. * / \ Permit-issued date Notes
Project name number application date letter date(s)
Candle Ridge Mining
Candle Ridge Mining
2003-1276
04/17/04
None
04/22/10 Length of time from notification date to
permit-issued date was 2,195 days.
Enforcement case due to unauthorized
activity. Corps issued cease and desist order
05/18/04. Referred to EPA 07/01/04. EPA
issued consent agreement and final order
11/20/09. After-the-fact NWP 21 verified
04/22/10.
CONCO
Mill Creek Mine
2003-468
None
06/01/07
06/02/09 Length of time from notification date to
permit-issued date was 731 days. Corps
requested additional information from
applicant.
12-P-0083
26
-------
Company name Application Notification or EPA comment r> * m *
n ¦ J u * - . - *1 * i .. * / \ Permit-issued date Notes
Project name number application date letter date(s)
Oxford Mining
2003-98
08/19/09
None
05/13/10
Length of time from notification date to
Company LLC
Lafferty Adjacent
Area
permit-issued date was 268 days.
Buckingham Coal
2004-1152
02/26/07
07/23/09 and 10/23/09
10/26/09
Permit issued 39 days before end of 60-day
Buckingham Wash
Plant
review period. Length of time from notification
date to permit-issued date was 973 days.
Application processed through ECP, started
10/05/09 with 60-day clock ending 12/04/09.
Premium Coal
2004-62
05/30/08
03/22/10
05/18/10
Permit issued 57 days after end of 60-day
Area 19
review period. Length of time from notification
date to permit-issued date was 718 days.
Application processed through ECP, started
01/19/10 with 60-day clock ending 03/22/10.
Jeffco Resources
2005-1057
03/17/08
04/10/08
02/12/10
Length of time from notification date to permit-
North Barnesville
issued date was 695 days.
A&G Coal
2005-11
03/11/09
None
09/17/09
Length of time from notification date to
A&G Coal
permit-issued date was 189 days. Also had
notification date of 06/27/08. Applicant
resubmitted plans that minimized proposed
impacts and updated mitigation.
Oxford
2005-1385
03/20/09
05/27/10
07/12/10
Permit issued 47 days after end of 60-day
Halls Knob
review period. Length of time from
notification date to permit-issued date was
479 days. Application processed through
ECP, started 03/05/10 with 60-day clock
ending 05/04/10.
Oxford
2005-421
12/23/09
04/09/10
06/09/10
Length of time from notification date to
Peabody3
permit-issued date was 168 days. Corps
said IP application submitted 02/10/09 had
notification 03/20/09 (we documented this).
Application withdrawn from ECP 11/20/09 to
be redesigned; resubmitted 11/30/09.
12-P-0083
27
-------
Company name Application Notification or EPA comment r> * m *
n ¦ J u * - . - *1 * i .. * / \ Permit-issued date Notes
Project name number application date letter date(s)
Oxford Mining 2005-723 08/18/09 09/08/09 01/19/10 Length of time from notification date to
Long Sears Adj permit-issued date was 153 days. We also
documented previous public notification
dated 01/16/09 and withdrawal dated
07/30/09. List of 237 listed application
number as 2005-753.
Hope Coal Co.
Trey Mine
2006-1375
07/22/08
None
11/13/09
Length of time from application date to
permit-issued date was 478 days. Corps
said internal administrative delay.
Coordination not required; impacts to
waters less than 0.5 acres.
Sands Hill
Big Rock
2006-2247
01/20/09
01/25/10
02/02/10
Length of time from notification date to
permit-issued date was 377 days.
CONSOL of Ky
Peg Fork
2006-2294
04/24/08
06/11/09, 05/17/10,
09/14/10, and
02/28/11
08/06/09
Length of time from notification date to
permit-issued date was 468 days. Initial
permit approved two valley fills.
Maple Coal Co
Sycamore North
2006-2394
07/06/07
None
07/02/09
Length of time from notification date to
permit-issued date was 726 days.
Tunnel Ridge, LLC
Tunnel Ridge Prep
Plant/Refuse Area
2006-427
04/10/09
None
04/12/10
Length of time from notification date to
permit-issued date was 367 days.
Sandlick Coal
Company
Foresters Creek
2006-66
08/31/09
None
09/14/09
Length of time from notification date to
permit-issued date was 14 days. Resolution
of Endangered Species Act concerns from
U.S. Fish and Wildlife Service required.
Notification dated 05/06/09 submitted for
NWP 49, later resubmitted to change
application to NWP 21.
12-P-0083
28
-------
Company name Application Notification or EPA comment r> * m *
n ¦ J u * - . - *1 * i .. * / \ Permit-issued date Notes
Project name number application date letter date(s)
Highland Mining 2006-663/ 03/25/08 03/23/09,04/28/09, 03/04/11 Length of time from notification date to
Reylas 2007-99 and 09/30/09 permit-issued date was 1,074 days. Court
granted temporary restraining order
03/08/11 and prohibited filling stream under
CWA Section 404 permit. Court remanded
decision back to Corps district 04/15/11.
Length of time from notification date to
permit-issued date was 50 days. Applicant
originally submitted IP 05/01/08 but
withdrew 03/10/10 and resubmitted as
NWP 49, which was verified. (We
documented 03/12/10 public notification.)
List of 237 listed application number as
2004-1836.
Length of time from application date to
permit-issued date was 63 days. Additional
notification dated 03/23/07 because
applicant changed proposed impacts and
mitigation from original submittals.
Oxford Mining
Kaiser Mathias
2007-1021
01/20/09
03/05/10
03/08/10
Permit issued within 60-day review period.
Length of time from notification date to
permit-issued date was 414 days. There
was a delay in obtaining SMCRA permit.
We documented notification dated 01/26/09.
Application processed through ECP, started
01/06/10 with 60-day clock ending 03/08/10.
EME Homer City
Generation L.P.
EME Refuse
Disposal Site
2007-1079
07/28/09
None
09/02/09
Length of time from notification date to
permit-issued date was 34 days.
Davis Creek Energy
Area #4
2007-1767
06/26/09
None
04/20/10
Length of time from notification date to
permit-issued date was 298 days.
Cloverfork Mining & 2006-838 03/16/10 None 05/05/10
Excavation
Cloverfork Mining &
Excavation
Gatliff Coal 2006-917 05/08/09 None 07/10/09
Jamieson
Construction
12-P-0083
29
-------
Company name Application Notification or EPA comment r> * m *
n ¦ J u * - . - *1 * i .. * / \ Permit-issued date Notes
Project name number application date letter date(s)
New Yellow Ck. Coal
New Yellow Creek
Mine
2007-2162
None
10/29/09
Length of time from application date to
permit-issued date was 66 days. Corps said
internal administrative delay. Coordination
not required; impacts to waters less than
0.5 acres.
Ohio American
Energy
Salt Run North
2007-323
09/11/09
None
01/26/10
Length of time from notification date to
permit-issued date was 137 days.
DRC Coal
White Oak Surface
2007-345
03/31/10
05/17/10
06/25/10
Length of time from notification date to
permit-issued date was 86 days. Applicant
performed unauthorized work. Cease and
desist order issued 03/03/10. IP application
withdrawn 03/22/10 (this application
submitted 09/02/08) and after-the-fact
NWP 49 verified.
Consolidated Coal
Company
Bailey Mine
2007-463
03/16/09
06/30/09
06/11/10
Length of time from notification date to
permit-issued date was 451 days. Corps
cited CWA Section 401 delays. We
documented permit issue date 06/16/10.
Argus Energy, LLC
Wiley Branch Surface
Mine Amendment
No. 3
2007-89
05/15/09
06/12/09 and 03/05/10
03/08/10
Length of time from notification date to
permit-issued date was 297 days. However,
documentation indicates permit issued
05/13/10.
Nally & Hamilton
Nally & Hamilton
2007-946
04/23/09
None
04/23/10
Length of time from notification date to
permit-issued date was 365 days. Also
included notification for NWP 21 dated
12/17/07.
M&B Excavating
Thompson South
Mine
2008-1313 09/02/08
None
08/24/09
Length of time from application date to
permit-issued date was 357 days. Corps
internal administrative delay. Coordination
not required; impacts to waters less than
0.5 acres.
12-P-0083
30
-------
Company name Application Notification or EPA comment r> * m *
n ¦ J u * - . - *1 * i .. * / \ Permit-issued date Notes
Project name number application date letter date(s)
North Fork Collieries 2008-1358 03/23/09 None 05/22/09 Length of time from notification date to
Gilmore Surface Mine permit-issued date was 60 days. Corps said
internal administrative delay. List of 237 had
application number as 2008-1368.
Hope Coal Co. - 2008-1445 09/23/08 None 05/29/09 Length of time from application date to
Piper Mine permit-issued date was 249 days.
Coordination not required; impacts to
waters less than 0.5 acres. Application also
listed as number 2006-1375.
Martin County C
2008-1457
04/30/09
None
07/27/09
Length of time from application date to
Martin County
permit-issued date was 88 days. Corps said
internal administrative delay. After-the-fact
permit. Also had notification date of
12/23/08.
Martin County C
Martin County
2008-1458
04/28/09
None
07/27/09
Length of time from application date to
permit-issued date was 90 days. Corps said
internal administrative delay. After-the-fact
permit. Also had notification date of
12/23/08.
Martin County C
2008-1459
04/30/09
None
07/27/09
Length of time from application date to
Martin County
permit-issued date was 88 days. Corps said
internal administrative delay. After-the-fact
permit. Also had notification date of
12/23/08.
Consolidated Coal
Company
2008-1782
08/03/09
09/01/09
08/20/10
Length of time from notification date to
permit-issued date was 382 days.
Oak Spring Slope
and Supply Yard
B'ham Coal & Coke
2008-1809
04/28/09
None
06/12/09
Length of time from notification date to
Powhatan Mine
permit-issued date was 45 days.
Apex Mining
2008-212
04/08/09
None
06/06/09
Length of time from notification date to
Apex Mining
permit-issued date was 59 days. Corps said
internal administrative delay.
12-P-0083
31
-------
Company name Application Notification or EPA comment r> * m *
n ¦ J u * - . - *1 * i .. * / \ Permit-issued date Notes
Project name number application date letter date(s)
Czar Coal
2008-226
04/22/08
05/19/10 and 06/23/10
03/03/11
Permit issued 262 days after end of 60-day
Czar Coal
review period. Length of time from
notification date to permit-issued date was
1,045 days. Permit proffered 07/23/10
(documented) but applicant objected to
proffered permit (documented letter dated
08/24/10). Application processed through
ECP, started 04/13/10 with 60-day clock
ending 06/14/10.
B&N Coal
2008-260
03/16/09
None
06/01/09
Length of time from notification date to
Whigville III
permit-issued date was 76 days.
McElroy Coal
2008-563
04/10/09
None
04/01/10
Length of time from notification date to
Company
McElroy Refuse Area
permit-issued date was 356 days.
Documentation indicates public notification
dated 04/22/09 replaced one dated
04/10/09, and that permit signed 04/08/10.
ICG Hazard
2008-666
03/04/09
04/08/09
06/03/09
Length of time from notification date to
ICG Hazard
permit-issued date was 90 days. Corps said
internal administrative delay.
Hobet Mining
2008-791
09/10/08
01/04/10
01/06/10
Permit issued 5 days after end of 60-day
Surface Mine No. 45
review period. Length of time from
notification date to permit-issued date was
483 days. Application processed through
ECP, started 11/02/09 with 60-day clock
ending 01/10/10.
New Acton Mining
2008-823
07/08/09
None
07/23/09
Length of time from notification date to
Slate Creek Mine
permit-issued date was 15 days.
CoalMac, Inc.
2008-830
09/16/08
06/21/10
07/27/10
Permit issued 72 days after end of 60-day
Pine Creek Surface
review period. Length of time from
Mine
notification date to permit-issued date was
680 days. Application processed through
ECP, started 04/06/10 with 60-day clock
ending 06/05/10.
12-P-0083
32
-------
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Permit-issued date
Notes
Cambrian Coal
Group
Cambrian Coal
Group
2008-93
04/13/09
None
07/01/09
Length of time from notification date to
permit-issued date was 79 days. Corps said
internal administrative delay.
Pine Branch C
Pine Branch C
2009-198
03/02/09
04/08/09
09/04/09
Length of time from notification date and to
permit-issued date was 185 days. Corps
said internal administrative delay.
Travis Creek Mining
Trafford Mine
2009-275
04/29/09
None
08/04/09
Length of time from notification date to
permit-issued date was 96 days.
Coresco, LLC
Coresco Overland
Conveyor Belt
2009-288
04/29/09
08/18/09
09/04/09
Length of time from notification date to
permit-issued date was 127 days. EPA's
response noted no comments or objections.
We documented 08/12/09 public
notification.
Black Warrior
Minerals
Manchester East
2009-323
06/03/09
None
06/30/09
Length of time from application date to
permit-issued date was 27 days.
Coordination not required; impacts to
waters less than 0.5 acres. Modified permit
01/07/11.
Enterprise Mining
Trace Fork Surface
Mine
2009-422
05/19/09
03/17/10
08/27/09
Length of time from notification date to
permit-issued date was 99 days. Corps said
internal administrative delay. We
documented EPA letter to Corps dated
03/17/10 in which EPA recommended
application be considered under IP rather
than NWP 21. Recommendation based on
potential for additional avoidance and
minimization, potential for water quality
degradation, and compensatory mitigation
plan that may not compensate for
unavoidable impacts. Water quality
concerns included conductivity discussion
with EPA, explaining concern that existing
water quality conditions may not currently
support Kentucky's existing standards.
12-P-0083
33
-------
Company name Application Notification or EPA comment r> * m *
n ¦ J u * - . - *1 * i .. * / \ Permit-issued date Notes
Project name number application date letter date(s)
Consol of Kentucky
Spring Branch No. 3
Deep Mine
2009-428
02/06/09
02/14/11
02/14/11
Permit issued within 60-day review period.
Length of time from notification date to
permit-issued date was 738 days. Corps
said this was NWP 50. Application
processed through ECP, started 12/17/10
with 60-day clock ending 02/15/11.
Miller Bros. Coal
Miller Bros. Coal
2009-463
09/08/09
None
12/15/09
Length of time from notification date to
permit-issued date was 98 days. Application
also listed as 2007-669.
Twin Pines Coal Co.
Lick Creek Mine
2009-467
04/03/09
04/06/09
05/20/09
Length of time from notification date to
permit-issued date was 48 days.
Reed Minerals Inc.
No. 5 Mine
2009-470
06/11/09
None
07/23/09
Length of time from notification date to
permit-issued date was 43 days.
Aldwych, LLC
Four Oaks Mine #2
2009-572
06/25/09
None
07/27/09
Length of time from notification date to
permit-issued date was 32 days.
Paramount Coal
Dry Fork
2009-815
03/02/10
03/03/10
09/14/10
Length of time from notification date to
permit-issued date was 195 days.
12-P-0083
34
-------
Applications Withdrawn:
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Withdrawn
date
Notes
Hobet Mining
Hewett
2003-65
05/02/06
None
07/02/09
Length of time from notification date to
withdrawn date was 1,156 days. According to
public notice document we reviewed (dated
05/02/06), Corps issued NWP 21 verification
02/04/04 but then revoked verification 09/24/04
due to litigation. Company applied for IP in 2006
(public notice 05/02/06) then completed
construction under revoked NWP. This is a
possible unauthorized discharge. Corps said IP
administratively withdrawn due to lack of
applicant response to request for additional
information. Application withdrawn from ECP.
Alden Resources
Alden Resources
2004-1108
07/03/06
None
04/12/10
No completed application received.
Administratively withdrawn because applicant
did not respond to request for additional
information. Subsequently, Alden Resources
submitted preapplication consultation for same
site, but no application has been received. List
of 237 listed company name and project name
both as Ikerd Coal.
Brooks Run
Mining
Brandy St & Cove
Mtn.
2004-1155
03/22/06
None
08/17/09
Length of time from notification date to
withdrawn date was 1,242 days. Application
withdrawn from ECP. We documented
withdrawal date 08/13/09.
Nally & Hamilton
Nally & Hamilton
2004-1254
02/11/08
None
07/10/09
No completed application received.
Administratively withdrawn because applicant
did not respond to request for additional
information.
12-P-0083
35
-------
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Withdrawn
date
Notes
CH Development
CH Development
2004-1391
09/12/08
None
01/21/10
No completed application received. Applicant
requested reverification of NWP previously
verified in 2006. Application not complete and
administratively withdrawn because applicant
did not respond to request for additional
information.
Independence
Coal Company
Glory Surface
Mine
2004-145
12/13/05
None
02/19/10
Length of time from notification date to
withdrawn date was 1,527 days. We
documented EPA comment letter dated
04/01/04 and 09/19/10 withdrawal notification.
Application withdrawn from ECP. List of 237
listed application number as 2004-1451.
Appolo Fuels
Fonde-Highwall
2004-2228
12/14/07
None
10/30/09
No completed application received. Application
administratively withdrawn after applicant
performed unauthorized work. Corps worked
with applicant to resolve enforcement action;
resolution agreement pending signature.
Bear Fork
Bear Fork S.M.
2004-336
02/08/06
None
01/18/11
Length of time from notification date to
withdrawn date was 1,805 days. Transferred
between Corps districts during boundary
realignment. File sent to EPA for enforcement
action 05/25/10 and administratively withdrawn.
Independence
Coal Company
Constitution
Surface Mine
2004-624
07/15/04
08/31/04
02/19/10
Length of time from notification date to
withdrawn date was 2,042 days. Application
withdrawn from ECP.
Premium Energy,
Inc.
Premium Mills
Surface Mine
2005-1211
06/10/08
None
04/26/09
Length of time from application date to
withdrawn date was 320 days. We documented
public notice dated 07/09/08 and withdrawn date
of 08/26/09. Application withdrawn from ECP.
Catenary Coal
Co.
Tenmile Fork
Deep Mine
2005-167
08/24/06
None
02/22/11
Length of time from notification date to
withdrawn date was 1,640 days.
12-P-0083
36
-------
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Withdrawn
date
Notes
Consol of KY
Area 80
2006-126
04/16/06
None
05/20/10
Length of time from notification date to
withdrawn date was 1,494 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
Consol of KY
Slone Br Mine
2006-127
03/16/06
None
09/09/09
Length of time from notification date to
withdrawn date was 1,270 days.
Licking River
Resources
Licking River
Resources
2006-1290
12/05/06
None
05/19/10
Length of time from notification date to
withdrawn date was 1,261 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
Nally & Hamilton
Naiiy & Hamilton
2006-1647
07/31/06
None
11/13/09
Complete application not received before
application withdrawn.
Buckeye Ind
Mining
Beaver Excav
2006-2001
04/22/08
None
11/30/09
Length of time from application date to
withdrawn date was 586 days. Corps said permit
not resubmitted.
Wildcat
#2 Surface
2006-2033
03/05/08
None
03/02/11
Length of time from notification date to
withdrawn date was 1,092 days. Corps said
administratively withdrawn due to lack of
applicant response to request for additional
information. Application withdrawn from ECP.
Colony Bay Coal
Co.
Colony Bay
Surface Mine
2006-2290
01/23/09
03/23/09
02/17/10
Length of time from notification date to
withdrawn date was 389 days. Application
withdrawn from ECP.
Jewell Smokeless
JSCC
2006-6158
12/05/05
04/23/09
04/21/10
Length of time from application date to
withdrawn date was 1,598 days. Corps said
applicant failed to respond to several requests
for information; application administratively
withdrawn. We documented 03/31/09 public
notification.
12-P-0083
37
-------
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Withdrawn
date
Notes
Ohio American
Energy
Red Bird South
2006-660
09/30/08
None
01/04/10
Length of time from notification date to
withdrawn date was 460 days. ECP clock
started 10/06/09 but Corps placed it on hold to
wait for information from applicant. Original end
of 60-day clock was 12/04/09.
ICG Hazard
ICG Hazard
2006-756
06/30/06
None
08/14/09
Length of time from notification date to
withdrawn date was 1,140 days.
Catenary Coal
Co.
Laurel Fork
2006-821
08/21/06
None
02/22/11
Length of time from notification date to
withdrawn date was 1,644 days.
Frasure Creek
Mining
Frasure Creek
Mining
2007-1026
12/13/07
None
01/18/11
Length of time from notification date to
withdrawn date was 1,130 days. Withdrawn and
referred to EPA for enforcement action.
Apex Energy
Apex Energy
2007-1044
08/28/07
None
05/24/10
Length of time from notification date to
withdrawn date was 1,000 days. Application
withdrawn by applicant who avoided impacts to
waters so no permit required.
The Raven Co.
The Raven Co.
2007-1104
09/05/07
None
05/20/10
Length of time from notification date to
withdrawn date was 989 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
Pine Branch Coal
Pine Branch Coal
2007-1190
11/28/07
None
06/23/09
Length of time from notification date to
withdrawn date was 573 days.
Matt/Co
Matt/Co
2007-1205
12/05/07
None
05/19/10
Length of time from notification date to
withdrawn date was 896 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
Frasure Creek
Mining
Frasure Creek
Mining
2007-1206
07/08/08
None
01/19/11
Length of time from notification date to
withdrawn date was 924 days. Withdrawn and
referred to EPA for enforcement action.
12-P-0083
38
-------
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Withdrawn
date
Notes
FCDC
FCDC
2007-1397
10/20/08
None
05/19/10
Length of time from notification date to
withdrawn date was 577 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
ICG Hazard
Bearville North
2007-1406
07/06/08
08/12/08
05/19/10
Length of time from notification date to
withdrawn date was 682 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
FCDC
FCDC
2007-1445
11/29/07
None
05/19/10
Length of time from notification date to
withdrawn date was 902 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
FCDC Coal
FCDC Coal
2007-1498
11/15/08
11/17/08
10/27/10
Length of time from notification date to
withdrawn date was 712 days.
ICG Hazard
ICG Hazard
2007-1515
12/06/07
None
03/04/10
Length of time from notification date to
withdrawn date was 819 days.
Clintwood
Elkhorn
Clintwood
Elkhorn
2007-1518
12/05/07
None
08/31/10
Length of time from notification date to
withdrawn date was 1,000 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
Laurel Mountain
Resources
Laurel Mountain
Resources
2007-1582
12/28/07
None
01/13/10
Length of time from notification date to
withdrawn date was 745 days.
Consol of KY
Consol of KY
2007-1644
03/12/08
None
11/23/09
Length of time from notification date to
withdrawn date was 619 days. We documented
08/13/09 letter saying withdrawn because work
completed.
Premier Elkhorn
Coal
Premier Elkhorn
Coal
2007-193
03/14/07
None
02/17/11
Length of time from notification date to
withdrawn date was 1,433 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
12-P-0083
39
-------
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Withdrawn
date
Notes
Apex Energy
Apex Energy
2007-335
05/02/07
None
04/27/10
Length of time from notification date to
withdrawn date was 1,090 days. Application
withdrawn by applicant who avoided impacts to
waters so no permit required.
Consol of KY
Razorblade
Surface Mine
2007-393
05/03/07
None
07/08/09
Length of time from notification date to
withdrawn date was 796 days.
Argus Energy
Argus Energy
2007-400
08/15/07
None
06/29/10
Length of time from notification date to
withdrawn date was 1,048 days. Corps said
permit withdrawn 06/29/09; however, we
documented 06/29/10 withdrawal.
Revelation
Energy, LLC
Revelation
Energy, LLC
2007-401
05/08/07
None
06/17/10
Length of time from notification date to
withdrawn date was 1,135 days. List of 237
listed company name and project name as
Candle Ridge Mining.
Leeco, Inc.
Elk Lick
2007-595
09/04/07
None
06/28/10
Length of time from notification date to
withdrawn date was 1,028 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
Laurel Mtn.
Resources
Laurel Mtn.
Resources
2007-669
07/13/07
None
07/08/09
Length of time from notification date to
withdrawn date was 725 days. List of 237 listed
company name and project name as Miller Bros.
Coal.
Johnson Floyd
Coal
Johnson Floyd
Coal
2007-706
07/19/07
None
11/23/09
Length of time from notification date to
withdrawn date was 856 days. Applicant met
with agencies and revised mine plan to avoid
impacts to waters, so no permit required.
Nally & Hamilton
Nally & Hamilton
2007-820
10/01/08
None
04/12/10
Length of time from notification date to
withdrawn date was 559 days. We documented
NWP 21 notification dated 10/08/08.
BDCC Holdings
Cherries Branch
2008-114
04/09/08
None
05/19/10
Length of time from notification date to
withdrawn date was 771 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
12-P-0083
40
-------
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Withdrawn
date
Notes
Wolverine
Resources
Jake Fork and
Stoney Branch
Surface Mine
2008-115
04/17/08
None
05/19/10
Length of time from notification date to
withdrawn date was 762 days. Administratively
withdrawn.
Apex Energy
Apex Energy
2008-139
03/02/09
12/29/09
04/21/10
Length of time from notification date to
withdrawn date was 415 days. Also had
notification date 03/31/08. Applicant revised
project so no impacts to waters and no permit
required. ECP started 10/16/09 but applicant
withdrew before completed.
Patriot Mining
Company
Wades Run
extension
2008-1564
02/26/10
02/09/10
05/19/10
Length of time from notification date to
withdrawn date was 84 days. Documentation
stated public notification date 01/26/10 (closing
date 02/26/10). List of 237 listed application
number as 2008-2414.
Czar Coal
Czar Coal
2008-408
05/14/08
None
09/18/10
Length of time from notification date to
withdrawn date was 856 days. According to
EPA comment letter dated 08/05/11, permit
application resubmitted and public notice issued
06/30/11. Letter mentions conductivity values.
Laurel Mtn.
Resources
Laurel Mtn.
Resources
2008-727
02/27/09
None
04/06/10
Length of time from notification date to
withdrawn date was 405 days. Administratively
withdrawn because applicant did not respond to
request for additional information. List of 237
listed company name and project name as Miller
Bros. Coal. We documented e-mail stating
project withdrawn by applicant on 02/23/10.
Eastern
Associated Coal
Huff Creek Haul
Road
2008-75
07/08/08
None
07/28/09
Length of time from application date to
withdrawn date was 385 days.
ICG Hazard
ICG Hazard
2008-777
None
06/30/09
Length of time from notification date to
withdrawn date was 335 days.
12-P-0083
07/31/08
41
-------
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Withdrawn
date
Notes
Wolverine
Resources
Wolverine
Resources
2008-781
07/18/08
None
05/20/10
Length of time from application date to
withdrawn date was 671 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
Coyote Coal
Company
Joes Creek
Surface Mine
2008-805
03/20/09
None
03/29/11
Length of time from notification date to
withdrawn date was 739 days. Corps said
administratively withdrawn due to lack of
applicant response. Did not meet NWP 49
criteria. Application withdrawn from ECP.
Premier Elkhorn
Coal
Premier Elkhorn
Coal
2008-95
03/12/08
None
08/31/10
Length of time from notification date to
withdrawn date was 901 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
Clintwood
Elkhorn
Clintwood
Elkhorn
2009-182
09/16/09
02/26/10
07/19/10
Length of time from notification date to
withdrawn date was 307 days. Application
withdrawn by applicant who avoided impacts to
waters, so no permit required.
Frasure Creek
Mining
Frasure Creek
Mining
2009-237
06/19/09
None
06/16/10
No completed application received.
Administratively withdrawn because applicant
did not respond to request for additional
information.
Frasure Creek
Mining
Frasure Creek
Mining
2009-239
04/10/09
05/26/09
06/14/10
Length of time from notification date to
withdrawn date was 430 days. List of 237 listed
application number as 2008-239.
Miller Bros. Coal
Miller Bros. Coal
2009-368
04/07/09
None
04/07/10
No completed application received. Application
withdrawn because applicant did not respond to
request for additional information.
Lone Mountain
Processing Prep
Plant
2009-576
03/11/09
None
02/22/10
Length of time from application date to
withdrawn date was 346 days.
Knox Creek Coal
Trace Fork
Surface Mine
2009-577
03/11/09
None
12/03/09
Length of time from application date to
withdrawn date was 266 days.
12-P-0083
42
-------
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Withdrawn
date
Notes
Frasure Creek
Mining
Frasure Creek
Mining
2009-95
05/06/09
None
06/16/10 Length of time from notification date to
withdrawn date was 406 days. Administratively
withdrawn because applicant did not respond to
request for additional information.
12-P-0083
43
-------
Applications Pending:
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Notes
Sand Hill Coal Co.
Big Valley Mine
2001-407
02/13/08
Length of time application pending from most recent notification
date to 05/27/11 is 1,200 days. Corps noted as unauthorized fill
enforcement action.
Appolo Fuels
Jellico Strip
2002-609
09/21/04
Length of time application pending from most recent notification
date to 05/27/11 is 2,439 days. Enforcement case due to
unauthorized work performed before permit issued. Resolution
agreement signed 04/11/11. List of 237 listed application number
as 2004-609.
Alex Energy
Republic No. 1
2003-238
n-i /na/na
04/03/09, 04/28/09,
and 06/04/10
Length of time application pending from most recent notification
date to 05/27/11 is 871 days. Original permit dated 08/04/06
voluntarily forfeited 12/15/08 due to a lawsuit. On 03/02/10, Massey
advised that Republic No. 1 is a priority and it will submit data soon.
Premier Elkhorn
Premier Elkhorn
2004-1557
09/22/05
Complete application not received.
Green Valley Coal
Company
Blue Branch Refuse
2005-1115
10/04/05
02/09/10
Length of time application pending from most recent notification
date to 05/27/11 is 2,061 days. We documented PCN for NWP 21
on 02/23/00 with permit no. 1998-1315. EPA commented to that
notification 03/15/00, urging Corps to reconsider application as IP.
Corps verified NWP 21 03/20/00. EPA commented to Corps
03/15/04, reasserting position that Corps reconsider application as
IP. Corps says still pending because it awaits approved final
mitigation plan. Project will be reviewed under ECP.*
Marrowbone
Development
Taywood West &
Marrowbone
2005-1198
11/07/05
Length of time application pending from most recent notification
date to 05/27/11 is 2,028 days. Corps said that additional
information needed on revised impacts, monitoring and adaptive
management plan, and compensatory mitigation plan. Project will
be reviewed under ECP*
Appolo Fuels
Buckeye Springs Mine 2
2005-1691
08/08/07
A complete application not received. Enforcement case due to
unauthorized work. Resolution agreement signed 04/11/11.
Bluestone
ContourAugerl
2005-217
04/13/05
Length of time application pending from most recent notification
date to 05/27/11 is 2,235 days. Corps stated it needs extensive
information. Project will be reviewed under ECP*
12-P-0083
44
-------
Company name Application Notification or EPA comment
Project name number application date letter date(s)
Notes
Kimble Clay & Limestone
Hunt
2005-478
10/20/10
02/08/11
Length of time application pending from most recent notification
date to 05/27/11 is 220 days. According to Corps, IP application
submitted 01/18/07 with public notice 03/01/07 (documented). EPA
and Corps jointly commented on 11/24/09, urging applicant to
withdraw. Region 5 explained that comments delayed because it
performed several site visits with Corps and held several
preapplication meetings to try to reduce impacts. Withdrawn
07/27/10 because mine plan changed. Applicant resubmitted
project (we documented public notice 12/10/10).
Leeco
Leeco
2005-851
09/24/07
Length of time application pending from most recent notification
date to 05/27/11 is 1,341 days. List of 237 listed company name
and project name as Cheyenne Resources*
Premier Elkhorn
U/T Old Beefhide
2005-934
01/06/06
Length of time application pending from most recent notification
date to 05/27/11 is 1,968 days. Transferred between Corps districts
during boundary realignment*
ICG Eastern, LLC
Jenny Creek Surface
Mine
2006-100
03/03/11
Length of time application pending from most recent application
date to 05/27/11 is 85 days. Corps shows IP application submitted
02/05/09 (documented) and withdrawn 11/08/10. Mine plan
changed and application resubmitted 03/03/11. Per 10/07/10 letter
from ICG, application withdrawn to address West Virginia's recently
implemented Permitting Guidance for Surface Coal Mining
Operations to Protect West Virginia's Narrative Water Quality
Standards. Application withdrawn from ECP 11/08/10 and
resubmitted outside ECP 03/03/11. List of 237 listed application
number as 2005-370. We also documented application number of
2006-1000.
Matt/Co
Matt/Co
2006-1124
02/14/07
Length of time application pending from most recent notification
date to 05/27/11 is 1,564 days*
Pine Ridge Coal
Hiriams Hoi Refuse Fill
2006-117
05/16/06
Length of time application pending from most recent notification
date to 05/27/11 is 1,836 days. Corps said PN needs to be
reissued, additional information is needed, and it is waiting for
applicant to respond.
12-P-0083
45
-------
Company name Application Notification or EPA comment
Project name number application date letter date(s)
Notes
Clintwood Elkhorn
Clintwood Elkhorn
2006-1296
05/07/07
Length of time application pending from most recent notification
date to 05/27/11 is 1,480 days. Applicant self-reported violation.
Cease and desist letter sent 07/02/08. Sent to EPA for enforcement
week of 02/08/10. EPA will not take action due to previous
involvement in case with a citizen's lawsuit. Awaiting CWA Section
401 and U.S. Fish and Wildlife Service clearances*
Highland Mining
Georges Creek Surface
Mine
2006-2196
03/03/11
08/28/09, 09/22/09,
and 04/19/11
Length of time application pending from most recent notification
date to 05/27/11 is 85 days. Documentation of public notice dated
07/21/09. Project appears to be in 404(q) process.
Freeport Mining, LLP
Freeport Mining, LLP
2006-2207
10/18/10
Length of time application pending from most recent application
date to 05/27/11 is 222 days. Corps said application withdrawn
02/25/09 and resubmitted as IP 10/18/10. There are Historic
Property issues (Section 106) with current application.
Catenary Coal Co.
Moccasin Hollow
2006-2278
03/01/07
Length of time application pending from most recent notification
date to 05/27/11 is 1,547 days. Applicant resubmitting new
Environmental Information Document.
Nally & Hamilton
Nally & Hamilton
2006-2522
10/25/10
Complete application not received. Original application submitted
03/18/08 incomplete and withdrawn by applicant 05/14/09.
Applicant submitted new incomplete application for IP. We also
documented NWP 50 notification dated 04/23/10 and EPA
comments dated 07/14/10.
Paramount Coal
PVVC (per Corps
spreadsheet: PCCV)
2006-5999
11/12/10 and
12/07/10
Length of time application pending from most recent notification
date to 05/27/11 is 239 days. Corps said application for IP
submitted in 2005 and withdrawn 06/17/08.
Clintwood Elkhorn
CEMC
2006-716310/01 /10Q5/13/09
06/02/09
Length of time application pending from most recent notification
date to 05/27/11 is 744 days. Corps said application for acreage
amendment withdrawn by applicant 03/24/09. We documented an
e-mail public notification dated 05/13/09.
Mid Vol
Paradise
2006-828
04/22/10
03/04/10 and
06/08/10
Length of time application pending from most recent notification
date to 05/27/11 is 400 days. Documentation of NWP 49
notification 12/17/09 that was withdrawn 12/17/09 and resubmitted
as IP 03/26/10.
12-P-0083
46
-------
Company name Application Notification or EPA comment
Project name number application date letter date(s)
Notes
Miller Bros. Coal
Miller Bros. Coal
2007-1131
11/09/07
Length of time application pending from most recent notification
date to 05/27/11 is 1,296 days*
Miller Bros. Coal
Frasure Branch Mine
2007-1132
07/20/10
Length of time application pending from most recent notification
date to 05/27/11 is 311 days. Also had notification date 09/26/07.
Corps said plans changed to become dual-purpose application.
Application withdrawn from ECP 05/14/10, resubmitted by
applicant, and is being reviewed under application 2010-519.
Oxford Mining Company
LLC
Ellis Area
2007-1180
09/29/10
11/24/10
Length of time application pending from most recent notification
date to 05/27/11 is 241 days. Corps said applicant withdrew
application 06/08/10 and resubmitted 09/10/10. Application
withdrawn from ECP.
Laurel Mtn. Resources
Laurel Mtn. Resources
2007-1224
10/22/07
Length of time application pending from most recent notification
date to 05/27/11 is 1,313 days. List of 237 listed company name
and project name as Miller Bros. Coal*
ICG Knott Co.
ICG Knott Co.
2007-1230
11/27/07
Length of time application pending from most recent notification
date to 05/27/11 is 1,278 days*
CAM Mining
CAM Mining
2007-1504
08/27/08
Length of time application pending from most recent application
date to 05/27/11 is 1,004 days*
Jamieson Construction
Jamieson Construction
2007-1641
03/03/10
07/29/10
Length of time application pending from most recent notification
date to 05/27/11 is 450 days. NWP 21 application withdrawn by
applicant 04/15/09 and resubmitted as IP.
Nally & Hamilton
Nally & Hamilton
2007-1642
03/18/10
04/22/10
Length of time application pending from most recent notification
date to 05/27/11 is 435 days. Application originally submitted
7/29/08 as NWP 21 but was incomplete; withdrawn 11/17/09 and
later resubmitted.
Buckeye
Freed Road
2007-17
01/15/09
Length of time application pending from most recent notification
date to 05/27/11 is 864 days. Previous notification 03/03/08 was
withdrawn 06/30/08.
Alex Energy, Inc.
Federal Surface Mine
2007-182
08/19/08
Length of time application pending from most recent notification
date to 05/27/11 is 1,012 days. Delayed due to mitigation plan.
Project will be reviewed under ECP*
Leeco, Inc.
Stacy Branch Surface
Mine
2007-217
04/17/07
10/22/10 and
12/14/10
Length of time application pending from most recent notification
date to 05/27/11 is 1,501 days. Application being processed
through ECP, started 9/16/10 with 60-day clock ending 11/15/10;
however, permit still pending*
12-P-0083
47
-------
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Notes
Pioneer Fuel
Little Eagle
2007-282
07/08/07
Length of time application pending from most recent notification
date to 05/27/11 is 1,418 days. Corps said it is waiting on additional
information from applicant.
Load-Out
Locust Fork
2007-284
05/16/08
Length of time application pending from most recent notification
date to 05/27/11 is 1,106 days.
Alex Energy, Inc.
Lonestar Surface Mine
2007-285
08/12/08
11/30/10
Length of time application pending from most recent notification
date to 05/27/11 is 1,019 days. Project will be reviewed under
ECP.*
Pioneer Fuel
MT5B
2007-286
03/12/08
Length of time application pending from most recent notification
date to 05/27/11 is 1,171 days. Project will be reviewed under
ECP*
Black Diamond
Norton Coal
2007-3433
I
D7/08/10
08/23/10
Length of time application pending from most recent notification
date to 05/27/11 is 323 days. Original NWP application submitted in
2008 administratively withdrawn 03/24/09 due to lack of applicant
response to request for additional information. Data shown are for
resubmitted application currently being processed as IP. Currently
resolving final mitigation plan and additional baseline data
collection. Corps also listed "awaiting CWA Section 401 approval"
as a reason for delay.
Nally & Hamilton
Nally & Hamilton
2007-439
05/30/08
Length of time application pending from most recent notification
date to 05/27/11 is 1,092 days.
Nally & Hamilton
Nally & Hamilton
2007-450
08/24/10
Complete application not received. Original IP application submitted
on 02/26/07 and withdrawn on 10/14/09 upon discovery of
unauthorized work. Current IP application incomplete.
Powdermill Processing
Stone 1 U/G Mine,
PrepPlant, Refuse Fill
2007-488
05/02/08
Length of time application pending from most recent notification
date to 05/27/11 is 1,120 days. Corp said it is waiting on revised
mitigation plan.
Premier Elkhorn Coal
Premier Elkhorn Coal
2007-594
09/07/07
09/30/10 and
11/02/10
Length of time application pending from most recent notification
date to 05/27/11 is 1,359 days. Application being processed
through ECP, started 08/19/10 with 60-day clock ending 10/18/10.
However, deadline extended numerous times. Corps said that it
proffered permit 05/27/11.
CAM Mining
Cane Branch
2007-69
02/07/07
Length of time application pending from most recent notification
date to 05/27/11 is 1,572 days. Corps noted additional notification
dated 11/27/06*
12-P-0083
48
-------
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Notes
Surface Mining Inc.
Young Property
2007-708
10/05/10
06/21/10
Length of time application pending from most recent notification
date to 05/27/11 is 235 days. Corps said it awaits information from
applicant. We also documented notification for NWP 21 dated
01/20/09 and withdrawal letter dated 07/30/09.
CAM Mining
CAM Mining
2007-867
08/15/07
Length of time application pending from most recent notification
date to 05/27/11 is 1,381 days*
Oxford
Garrett
2007-874
05/19/09
09/02/10
Length of time application pending from most recent notification
date to 05/27/11 is 738 days. Corps said application pending.
Frasure Creek Mining
Spring Fork Surface
Mine No. 2
2008-1098
01/26/09
04/03/09 and
04/28/09
Length of time application pending from most recent notification
date to 05/27/11 is 853 days. Public notification dated 01/26/09
documented. Corps waiting for additional required information from
applicant due to change in mine plan. Project will be reviewed
under ECP*
Nally & Hamilton
Kayjay #5
2008-1175
09/23/10
Complete application not received. Application originally submitted
as NWP 21 02/12/09. Application withdrawn and resubmitted as
NWP 49 07/16/10. Application withdrawn and resubmitted as IP
09/23/10; proposal currently pending.
Nally & Hamilton
Nally & Hamilton
2008-1178
08/02/10
Complete application not received. Application originally submitted
as NWP 21 03/09/09. Application withdrawn and resubmitted as
NWP 49 04/09/10 (we documented public notification for NWP 49
dated 05/10/10 as well as EPA comments dated 07/14/10).
Application withdrawn and resubmitted as IP.
Nally & Hamilton
Nally & Hamilton
2008-1808
09/02/10
Complete application not received. Application originally submitted
as NWP 21 07/22/08. Application withdrawn and resubmitted as
NWP 49 08/25/09. Application withdrawn and resubmitted as IP
09/02/10; proposal pending.
A&G Coal
A&G Coal
2008-2130
08/22/10
Length of time application pending from most recent notification
date to 05/27/11 is 534 days. Application originally submitted as
NWP 21 03/13/09. Application withdrawn 10/28/09 and resubmitted
as IP.
Horizon Resources, LLC
Synergy Surface Mine
No. 2
2008-370
07/31/09 and
08/25/09
Length of time application pending from most recent notification
date to 05/27/11 is 703 days. List of 237 listed application number
as 2008-1445. We documented 07/06/09 public notification.
06/24/09
12-P-0083
49
-------
Company name Application Notification or EPA comment
Project name number application date letter date(s)
Notes
CONSOL of Energy
Buffalo Mt. Surface Mine
2008-491
01/03/09
01/20/09
Length of time application pending from most recent notification
date to 05/27/11 is 876 days. We also documented public
notification dated 12/03/08. Federal Highway Administration
completing Environmental Impact Statement. Mine plan changed,
and Corps is waiting on additional information. Project will be
reviewed under ECP.*
Middle Fork Dev.
Middle Fork Dev.
2008-525
01/08/09
11/15/10
Length of time application pending from most recent notification
date to 05/27/11 is 871 days*
Eastern Associated
Coals
Huff Creek Surface Mine
2008-562
11/09/08
Length of time application pending from most recent notification
date to 05/27/11 is 931 days. We documented public notification
dated 10/10/08 (11/09/08 listed as closing date). This had
application number 2008-806; however, Corps said that this was
duplicate number so it used 2008-562 for application. Mine plan
changed and Corps is waiting for additional information from
applicant. Project will be reviewed under ECP*
Enterprise Mining
Enterprise Mining
2008-654
07/29/08
Length of time application pending from most recent notification
date to 05/27/11 is 1,032 days*
Eastern Associated Coal
Rocklick Branch Refuse
Fill
2008-76
05/04/11
Length of time application pending from most recent application
date to 05/27/11 is 23 days. Additional information recently
received from applicant.
Pocahontas Coal Co
East Gulf Complex
2008-801
02/14/11
Length of time application pending from most recent application
date to 05/27/11 is 104 days. NWP 50 application withdrawn to be
processed as IP.
Infinity Energy
Infinity Energy
2008-918
05/29/09
Applicant self-reported violation 08/14/08. Submitted after-the-fact
permit application. Enforcement action pending resolution.
Pocahontas Coal Co
Beckley Highwall #2
2008-995
05/04/11
Length of time application pending from most recent application
date to 05/27/11 is 23 days. Previous application withdrawn
07/16/09. JD requested 07/30/09. Corps indicated NWP 49
application complete 05/04/11.
Cambrian Coal
Cambrian Coal Group
2009-1086
08/12/10
Length of time application pending from the most recent submission
to 05/27/11 is 289 days.
Panther, LLC
Wet Branch Refuse
2009-154
08/10/09
09/08/09
Length of time application pending from most recent notification
date to 05/27/11 is 656 days. Corps said it is waiting for additional
information from applicant.
12-P-0083
50
-------
Company name
Project name
Application
number
Notification or
application date
EPA comment
letter date(s)
Notes
Laurel Mountain
Resources
Laurel Mountain
Resources
2009-341
07/09/10
Length of time application pending from most recent notification
date to 05/27/11 is 322 days. Also had notification date of 06/09/09
for NWP 21, but withdrawn 06/11/10 (also had EPA comments
dated 02/26/10). Suspension of NWP 21 06/18/10 caused applicant
to apply for IP. List of 237 had company name and project name as
Miller Bros. Coal.
National Coal of AL
L. Massey North
2009-443
11/01/10
Public notice issued 06/02/09. Applicant withdrew application
08/03/09 to address Corps comments. Corps said application
resubmitted in November 2010 and is pending.
CAM Mining
Tom's Branch Surface
Mine
2010-825
09/24/10
11/02/10 and
11/30/10
Length of time application pending from most recent notification
date to 05/27/11 is 246 days. There was also a notification date of
05/21/08. List of 237 listed application number as 2007-1301.
Administratively withdrawn 06/28/10 because applicant did not
respond to request for additional information. Application withdrawn
from ECP. Applicant subsequently resubmitted, and application
being reviewed under application number 2010-825.
Lexington Coal Co. LLC
Findlay Branch Mine
2010-929
03/17/11
Length of time application pending from most recent notification
date to 05/27/11 is 71 days. We documented additional notification
date of 03/12/08. List of 237 listed company name as Martin County
Coal and application number as 2007-1660. Application withdrawn
by applicant 03/02/10. Application withdrawn from ECP. Lexington
Coal bought the operation and resubmitted application, which is
currently being reviewed under 2010-929.
* On October 6, 2011, the United States District Court for the District of Columbia (National Mining Ass'n (Oct. 6, 2011, Memorandum Opinion and Order)) ruled
that, with the adoption of the ECP, EPA exceeded its statutory authority afforded by the Clean Water Act and ordered the ECP as an unlawful agency action and
set it aside. In light of the District Court's decision, EPA indicated that pending ECP projects will be evaluated by the Corps and EPA under existing regulatory and
statutory procedures. EPA has 60 days to appeal the District Court's decisions, which it has not yet done. EPA indicated that it is currently working with the Corps
and the U.S. Department of Justice to make that decision.
12-P-0083
51
-------
Applications With Actions Completed Prior to List Date of May 12, 2009:
Company name
Project name
Application
number
Notification or
application
date
EPA comment
letter date(s)
Permit-issued
date or
withdrawn date
Notes
Emerald Coal
Resources, LP
Emerald Coal
Resources, LP
1996-61011
01/24/97
Yes
09/17/99
Length of time from notification date to permit-
issued date was 966 days.
Premium Coal
Refuse Area #3
2000-2339
03/02/09
None
04/06/09
Length of time from notification date to permit-
issued date was 34 days. Original IP application
notification 03/12/07. Withdrawn 03/02/09.
Application resubmitted and approved as NWP 21.
(We were unable to obtain new notification date and
used the 03/02/09 withdrawn date to calculate the
review time period.) List of 237 had application
number as 2002-1435.
Valley Mining
2002-1435
02/01/08
None
05/08/09
Length of time from notification date to permit-
issued date was 463 days. Corps said internal
administrative delay.
Central Appalachian
Mining
Big Branch
2004-1400
06/13/05
03/23/09
04/28/09
Length of time from notification date to permit-
issued date was 1,414 days. CWA Section 404(c)
review initiated 04/28/09. The 04/28/09 letter also
said that EPA shared its concerns in letters dated
07/22/05, 08/16/05, and 12/21/07 (Corps also said
there were letters dated 06/22/05, 10/06/08,
04/28/09, and 12/17/10). Corps said applicant
responded to EPA's data request dated 12/17/10 on
02/04/11 and 02/11/11.
Clintwood Elkhorn
CEMC
2004-1860
04/06/09
None
04/27/09
Length of time from notification date to permit-
issued date was 21 days. Corps said this was
NWP 50.
Oxford Mining Company
LLC
Dagrava Area
2004-396
03/30/09
None
05/04/09
Length of time from notification date to permit-
issued date was 34 days. Corps said delayed due to
SMCRA permit.
12-P-0083
52
-------
Company name
Project name
Application
number
Notification or
application
date
EPA comment
letter date(s)
Permit-issued
date or
withdrawn date
Notes
Central Appal Mining
2004-867
04/02/08
None
03/10/09
Length of time from notification date to permit-
Remining #3
issued date was 343 days. Corps said IP application
submitted 01/01/05. We have documentation of
public notice dated 03/15/05 that was withdrawn.
Oxford
2005-1275
02/06/09
None
03/11/09
Length of time from application date to permit-
Mizer
issued date was 35 days.
Sturgeon Mining
2005-1893
06/30/06
None
04/28/09
Length of time from notification date to withdrawn
Sturgeon Mining
date was 1,032 days.
Consolidated Coal
2005-2160
08/22/07
None
07/09/08
Length of time from notification date to permit-
Company
Consolidated Coal
issued date was 321 days. Corps said delayed due
to Endangered Species Act consultation for Indiana
Company
Bat.
Consolidated Coal
2005-2461
10/15/06
None
01/26/09
Length of time from notification date to permit-
Company
Wilson Hollow
issued date was 832 days. Corps said delayed due
to Endangered Species Act consultation for Indiana
Bat.
Sturgeon Mining
2006-1053
02/08/08
None
03/02/09
Length of time from notification date to withdrawn
Sturgeon Mining
date was 389 days.
Cumberland River Coal
2006-2131
11/10/08
None
03/30/09
Length of time from notification date to permit-
Cumberland River Coal
issued date was 142 days.
Oxford Mining
2006-2256
01/15/09
None
05/08/09
Length of time from notification date to permit-
Horn
issued date was 115 days.
Buckeye Ind Mining
2006-484
08/31/07
None
12/19/08
Length of time from notification date and to permit-
Wilson
issued date was 476 days. Corps said delayed due
to SMCRA permit and resolution of comments.
D&C Mining
2006-928
06/23/08
None
04/06/09
Length of time from notification date to permit-
D&C Mining
issued date was 287 days. Corps said IP also
submitted 01/07/08 and withdrawn by applicant
06/23/08. Application for NWP 21 resubmitted and
verified.
Kimble Clay Limestone
2007-1101
01/20/09
None
03/11/09
Length of time from notification date to permit-
Harmon Hill
issued date was 52 days.
12-P-0083
53
-------
Company name
Project name
Application
number
Notification or
application
date
EPA comment
letter date(s)
Permit-issued
date or
withdrawn elate
Notes
A&G Coal Corp
Ison Rock Ridge
2007-1351
05/17/07
04/03/09 and
08/21/09
08/07/07 Length of time from notification date to permit-
issued date was 81 days. EPA e-mailed Corps
04/03/09 asking that NWP 21 be revoked and that
company should apply for IP. Corps told EPA
04/30/09 that it would not revoke NWP 21. Corps
suspended NWP 21 05/06/09 because 2 years had
passed since original verification issued. Corps
advised company to proceed as IP application
08/11/09. A&G Coal's 08/17/09 letter to Corps
requested Corps to reconsider suspension, saying
permit process near completion. Corps told
applicant to apply as IP 07/27/10.
Sapphire Coal
2007-1645
10/21/08
None
03/12/09
Length of time from notification date to permit-
Sapphire Coal
issued date was 143 days. Corps internal
administrative delay.
ICG Hazard
2007-334
04/04/07
None
03/25/09
Length of time from notification date to permit-
ICG Hazard
issued date was 721 days. Corps internal
administrative delay. In addition, lawsuit filed against
Corps over original decision on application.
Oxford Mining
2007-499
12/19/07
None
02/17/09
Length of time from notification date to permit-
Page S.M.
issued date was 424 days.
Licking River Resources
2007-815
11/29/07
None
05/11/09
Length of time from notification date to withdrawn
Licking River Resources
date was 529 days.
Atlantic Leaseco
2007-961
04/08/08
None
04/06/09
Length of time from notification date to permit-
Peerless #1
issued date was 363 days. Corps said this was
NWP 50.
Performance Coal
2008-114
12/03/08
None
04/01/09
Length of time from notification date to permit-
Company
issued date was 120 days. Mine reviewed as an
Upper Big Branch Deep
Mine
after-the-fact authorization and Corps said it issued
NWP 50 04/01/09.
Chas Coal
2008-138
03/31/08
None
05/09/09
Length of time from notification date to withdrawn
Chas Coal
date was 405 days.
12-P-0083
54
-------
Company name
Project name
Application
number
Notification or
application
date
EPA comment
letter date(s)
Permit-issued
date or
withdrawn date
Notes
GTM Energy Partners
GTM Energy Partners
2008-572
03/13/09
None
04/17/09
Length of time from application date to permit-
issued date was 34 days. NWP 14—Linear
Transportation Projects issued for road crossings
only.
Patrick Processing
Patrick Processing
2008-651
06/05/08
None
05/07/09
Administratively withdrawn; applicant never
submitted complete application. NWP 50.
National Coal of AL
L. Massey South
2009-416
03/18/09
None
04/27/09
Length of time from application date to permit-
issued date was 40 days. Coordination not required;
impacts to waters less than 0.5 acres.
12-P-0083
55
-------
Nonsurface Mining Applications:
Company name
Project name
Application
number
Notification or
application
date
EPA comment
letter date(s)
Permit issued
date or
withdrawn
date
Notes
Jurisdictional Determination
B&N Coal
Whigville
2008-106
N/A
According to Corps, only JD applied for. Applicant never
applied for permit.
Frasure Creek
Mining
Frasure Creek
Mining
2008-388
JD only for this project.
NWP 14
Buckeye
Hamilton
2006-483
10/27/09
None
11/12/09
Length of time from application date to permit-issued date
was 15 days. According to Corps, this was NWP 14—Linear
Transportation Projects issued for road crossings only.
Corps says application completed 10/27/09 and verified
11/12/09. We documented public notification for NWP 21
dated 05/27/08.
NWP 32
Apex Energy
Apex Energy
2003-1415
11/25/03
None
04/02/10
Length of time from application date to permit-issued date
was 2,319 days. Unauthorized activity cease and desist
order issued by Corps 02/26/04. Referred to EPA for
enforcement 04/13/04. Copy of consent decree received
02/02/09. Applicant paid $115,000. List of 237 had
application number as 2002-1435.
NWP 50
Bluestone Coal
Deep Mine 65
2003-794
04/08/08
None
05/29/09
Length of time from notification date to permit-issued date
was 417 days.
Ohio Valley Coal
No. 2 Slurry Exp.
2003-853
07/09/09
None
10/07/09
Length of time from application date to permit-issued date
was 89 days.
Bluestone Coal
Pocahontas #11
2003-995
02/13/08
None
Length of time application pending from most recent
application date to 05/27/11 is 1,200 days. Corps said
permit pending, waiting on additional information from
applicant. EPA had public notification date as 03/31/08.
12-P-0083
56
-------
Company name
Project name
Application
number
Notification or
application
date
EPA comment
letter date(s)
Permit issued
date or
withdrawn
date
Notes
National Coal
National Coal
2005-854
10/27/09
None
03/17/10
Length of time from notification date to permit-issued date
was 142 days. Application originally submitted as IP but due
to plan changes was resubmitted and processed as
NWP 50.
Laurel Cr Coal
#7
2006-2405
04/09/07
None
08/20/10
Length of time from notification date to withdrawn date was
1,228 days. Administratively withdrawn due to lack of
applicant response.
Appalachian Fuels
Big Creek
2007-1161
01/20/09
None
05/07/10
Length of time from application date to withdrawn date was
473 days. Company bankrupt and ceased business
operations. Corps says administratively withdrawn due to
lack of company response.
Eastern Associated
Coal
Pond Fork #2 Gas
Deep Mine
2007-347
08/04/08
None
05/15/09
Length of time from notification date to permit-issued date
was 285 days.
CAM Mining
CAM Mining
2008-1361
12/10/08
None
10/21/09
Length of time from notification date to permit-issued date
was 315 days. Corps internal administrative delay.
Newagle Mining
Corporation
Hoover Fork Deep
Mine
2008-321
04/21/09
None
Length of time application pending from most recent
notification date to 05/27/11 is 767 days. Corps waiting for
additional information.
Hampden Coal
Harrys Br
2008-935
03/30/09
None
05/21/10
Length of time from notification date to withdrawn date was
417 days. Corps administratively withdrew due to lack of
applicant response to request for additional information.
Kanawha Eagle
Coalburg5 & Eagle2
2009-15
04/26/10
None
04/21/11
Length of time from notification date to permit-issued date
was 360 days.
Hillside Mining
Workman Br
2009-189
09/10/09
None
08/09/10
Length of time from notification date to permit-issued date
was 334 days.
Chevron Mining
North River R-34
2009-232
04/15/09
None
05/29/09
Length of time from application date to permit-issued date
was 45 days. Coordination not required; impacts to waters
less than 0.5 acres.
12-P-0083
57
-------
Notification or
application
date
Permit issued
Company name
Project name
Application
number
EPA comment
letter date(s)
date or
withdrawn
date
Notes
McElroy Coal
Company
5 North # 11 Bleeder
Shaft
2009-286
02/18/09
Yes
08/17/09
Length of time from notification date to permit-issued date
was 181 days.
Consolidated Coal
Company
Loverridge Mine #22
2009-293
05/15/09
None
07/13/09
Length of time from notification date to permit-issued date
was 59 days.
Leeco, Inc.
Leeco, Inc.
2009-344
09/23/09
03/17/10
Length of time application pending from most recent
notification date to 05/27/11 is 612 days. Corps internal
administrative delay.
Argus Energy WV,
LLC
Devilstrace No. 2
Punchout
2009-427
02/06/09
None
05/13/10
Length of time from notification date to permit-issued date
was 463 days.
ICG Knott Co.
Lige Hollow
Amburgy Mine
2009-75
02/16/10
03/25/10
05/12/10
Length of time from notification date to permit-issued date
was 87 days. Corps internal administrative delay.
Other
National Coal of AL
Kansas Mine No. 2
2009-318
No permit required.
Source: On May 27, 2011, the Corps provided the senator's office permit application data, including status and reasons for delay, on the 237 applications under
our review. The senator's office forwarded this information to us. We also visited EPA Regions 3, 4, and 5 to examine source documents and interview staff. This
appendix presents our analysis of all data and information we obtained.
12-P-0083
58
-------
Distribution
Office of the Administrator
Assistant Administrator for Water
Agency Follow-Up Official (the CFO)
Regional Administrator, Region 3
Regional Administrator, Region 4
Regional Administrator, Region 5
Agency Follow-Up Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for External Affairs and Environmental Education
Audit Follow-Up Coordinator, Office of Water
Audit Follow-Up Coordinator, Region 3
Audit Follow-Up Coordinator, Region 4
Audit Follow-Up Coordinator, Region 5
12-P-0083
------- |