II. Introduction 

 The environmental legacy of mining operations in the Appalachian region is far-reaching. 

Recent studies, as well as the experiences of Appalachian coalfield communities, point to new 

environmental and health challenges from surface coal mining that we were largely unaware of 

even ten years ago. Since 1992, nearly 2,000 miles of Appalachian streams have been filled at a 

rate of 120 miles per year by surface mining practices. A recent EPA study found that nine out 

of every 10 streams downstream of surface mining operations exhibit significant impacts to 

aquatic life.2

 Another federal study found elevated levels of highly toxic and bioaccumulative 

selenium in streams downstream of valley fills.3 These impairments are linked to contamination 

of surface water supplies and resulting health concerns, as well as widespread impacts to stream 

life in downstream rivers and streams. 

 The CWA entrusts EPA with responsibility for protection of human health, water quality, 

and the environment in coalfield communities throughout Appalachia. This responsibility 

includes preserving the long-term health and biological integrity of Appalachian watersheds, 

which is important to sustain aquatic populations and maintain safe and abundant water supplies 

for local communities. It also includes the need to assure human health and environmental 

protection of vulnerable populations and to increase opportunities for their participation in the 

permitting process. We will make every effort to fulfill these responsibilities without 

compromising the economic and energy benefits that coal mining provides to both the 

Appalachian region and our entire nation. 

 

III. EPA Review of NPDES Permitting 

Although much of the focus to date has been centered on the Section 404 permits 

associated with surface coal mining, mining operations are also required to obtain NPDES 

permits for their discharges. EPA recently conducted a Permit Quality Review (PQR) in West 

Virginia, Kentucky, Tennessee, and Ohio. During that Review, it became clear that many of the 

state-issued NPDES permits failed to comply with the requirements of the CWA in several 

respects. In particular, the permits often lacked any water quality based effluent limits 

(WQBELs) to implement applicable numeric or narrative water quality standards. 

The scientific literature is increasingly recognizing the relationship between conductivity 

levels in Appalachian streams and impacts to aquatic biota in streams below surface coal mining 

operations. Based on field measurements comparing unmined and mined watersheds in 

Appalachia, the peer-reviewed 2008 "Pond-Passmore" study concluded that aquatic life at sites 

with specific conductance greater than 500 μS/cm were determined to have been adversely 

impacted based on a genus-level multi-metric biological index. In addition, EPA's draft report, A 

Field-based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams, also 

recognizes stream-life impacts associated with conductivity. This study, which is publicly 

 

2

 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):717–737. 

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 Bryant, G., S. McPhillamy, and H. Childers. 2002. A Survey of the Water Quality of Streams in the Primary 

Region of Mountaintop / Valley Fill Coal Mining. Mountaintop Mining Valley Fill Programmatic Environmental 

Impact Statement. USEPA Region 3. Wheeling, WV. 

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available and set to undergo external peer review by EPA’s Science Advisory Board, applies 

EPA's standard method for deriving water quality criteria to field measurements and concludes 

that genus-level impacts to the biological community can occur at conductivity levels of 300 

μS/cm. 

 Based on this PQR, when reviewing proposed permits, EPA Regions will ensure that 

appropriate WQBELs are included in order to meet the relevant narrative and numeric water 

quality standards. Available data for determining reasonable potential to cause or contribute to a 

violation of water quality standards include data from mining discharges from similar mines, as 

well as recent science documents developed by EPA. Based on the science, as a general matter, 

EPA expects that in-stream conductivity levels maintained at or below 300 μS/cm will meet 

water quality standards and that in-stream conductivity levels above 500 μS/cm are likely to be 

associated with adverse impacts that may rise to the level of exceedances of narrative state water 

quality standards.4 If water quality modeling suggests that in-stream levels will exceed 500 

μS/cm, EPA believes that reasonable potential likely exists to cause or contribute to an excursion 

above applicable water quality standards; unless, based on site-specific data, the state has an 

alternative interpretation of their water quality standards that is supported by relevant science. 

Similarly, if water quality monitoring suggests that in-stream levels will exceed 300 μS/cm but 

will be below 500 μS/cm, EPA should work with the permitting authority to ensure that the 

permit includes conditions that protect against conductivity levels exceeding 500 μS/cm. In 

circumstances where conductivity levels in waters proposed for new mining related discharges 

already exceed 500 μS/cm, EPA will coordinate with the permitting authority on a site-specific 

basis to ensure these new discharges will not cause or contribute to a violation of water quality 

standards. Once EPA’s draft conductivity report is finalized following Science Advisory Board 

review, we will evaluate whether changes to the conductivity benchmarks identified here are 

appropriate. Regions should evaluate whether NPDES permits appropriately incorporate 

provisions related to conductivity, as well as the other parameters contained in the effluent. 

Under the CWA, NPDES permits are required to ensure compliance with the permit terms upon 

issuance of the permit, unless an appropriate compliance schedule is included. 

Regions have authority under the CWA to object to proposed NPDES permits that fail to 

comply with the requirements of the Act. When Regions review surface coal mining permits, in 

situations where proposed permits fail to incorporate any required WQBELs, an objection would 

be an appropriate response. Regions should work with States to assess Notices of Intent (NOIs) 

and work with States on denying coverage under the general permit if applicants have not fully 

characterized their discharges or where coverage under the general permit would be otherwise 

inappropriate. Regions should also work with States to ensure their antidegradation procedures 

are effective and are fully implemented. 

IV. EPA’s Environmental Review Under CWA Section 404 in Coordination with the 

Corps of Engineers

1. Water Quality and Environmental Integrity Must Be Protected – Consistent with the 

CWA, EPA’s Section 404 regulations (the Guidelines) provide that no discharge of 

 

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 In certain fact-specific circumstances, conductivity levels above 500 μS/cm may not be associated with adverse 

aquatic impacts. EPA will work with permitting authorities on a site-specific basis to assess reasonable potential. 

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dredged or fill material may be permitted if it causes or contributes to violations of any 

applicable state water quality standard or if the nation’s waters would be significantly 

degraded. 

EPA anticipates that projects with predicted conductivity impacts below 300 uS/cm 

generally will neither significantly degrade the aquatic ecosystem nor cause or contribute 

to a water quality violation. As a general matter, however, EPA expects that instream 

conductivity levels above 500 μS/cm are likely to be associated with adverse impacts that 

rise to the level of significant degradation of the aquatic ecosystem and an excursion from 

narrative water quality criteria. At a minimum, should a proposed section 404 permit 

allow for increases in levels of conductivity above 500 μS/cm, the administrative record 

for the permit should demonstrate, based on site or receiving water specific information, 

how the permit is consistent with the CWA and the 404(b)(1) Guidelines, and Regions 

are encouraged to review such a record carefully. EPA, the Corps of Engineers (Corps), 

and individual mining operators should be coordinating to ensure conductivity levels 

remain below 500 μS/cm (e.g., by adopting a sequenced permitting approach). Projects 

projected to increase conductivity levels above 300 μS/cm should include permit 

conditions requiring adaptive remedial action to prevent conductivity levels that exceed 

500 μS/cm. 

2. Mining Projects Must Avoid and Minimize Environmental Impacts: Mining 

companies must avoid and minimize their direct, indirect, and cumulative adverse 

environmental impacts to streams, wetlands, watersheds, and other aquatic resources. 

Thus, mining companies must first demonstrate that there is no practicable alternative to 

the proposed discharge to the waters of the United States which would have less adverse 

impact on the aquatic ecosystem. If there is no practicable alternative, then all 

appropriate and practicable steps to minimize potential adverse impacts of proposed 

discharges must be taken. 

Mining projects that are able to eliminate or significantly reduce the number and size of 

valley fills associated with their projects are expected to have lesser impacts than projects 

with multiple valley fills. As such, we expect that, generally, it will be easier for projects 

with no or few valley fills to demonstrate that they comply with the requirements of the 

CWA and the 404(b)(1) Guidelines. Conversely, projects with multiple valley fills will 

generally raise serious questions about their compliance with CWA requirements and 

may require permit objection under 402 or elevation and possible veto under 404. 

For surface coal mining operations, EPA believes that the following technically feasible 

and cost-effective methods should be used to minimize the size and number of valley fills 

and the linear feet of stream impacts associated with by mine-through operations, in order 

to reduce potential water quality impacts: 

• Use available spoil disposal alternatives in uplands or adjacent mine sites. 

• Improve efficiency of mining practices to reduce production of overburden and 

minimize stream impacts (avoidance and minimization). 

• Construct fills as high up the valley as possible. Fills should generally be constructed 

from the head of the valley downstream instead of vice versa. 

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• Require certification of mine plan and verification of valley fill capacity for each 

phase of mining to ensure that the size of final valley fills are consistent with the 

amount of coal actually mined 

• Minimize contact between rainwater/groundwater and spoil by chemically analyzing 

overburden and utilizing materials handling plans, drains, and “side-hill” fills. 

• Minimize use of in-stream sediment ponds. Require full stream reclamation after 

mining. 

 In addition to best management practices, permits should incorporate conditions to 

protect water quality and prevent significant degradation (e.g., adopting a sequenced 

permitting approach). In this context, the term "sequenced" means: (1) only one valley 

fill should be authorized before subsequent fills may go forward, unless site-specific data 

suggest no potential downstream water quality concerns; and (2) the permittee must 

demonstrate compliance with applicable water quality standards and that there is no 

significant degradation associated with the first valley fill before the permittee may begin 

construction of subsequent valley fills. 

3. Mining Impacts Must Be Effectively Mitigated: Unavoidable mining-related 

environmental impacts must be effectively mitigated by establishing, restoring, 

enhancing, or preserving streams and wetlands; improving water quality; addressing 

drinking water impacts; and reclaiming watersheds when mining is completed. 

To assure effective mitigation, permit applicants should conduct functional stream impact 

assessments and ensure these assessments are effectively used to quantify the 

environmental effects of individual mining projects on streams. Also, Regions should 

work with and provide technical assistance to the Corps and state agencies on the 

development and implementation of effective assessment methods. These assessments 

should be used to ensure that compensatory mitigation replaces lost stream functions. 

Mine operators must not rely on drainageways (e.g., groin ditches), which do not replace 

lost stream function and structure and are therefore not an acceptable form of 

compensatory mitigation. Stream restoration is the preferred method for replacing lost 

stream function and structure. 

4. Water Quality and Biological Parameters Must Be Monitored: Permits must require 

in-stream water quality and biological monitoring to ensure compliance with permit 

conditions and to inform adaptive remedial action. Consistent with the attached 

memorandum, the applicant should be required to submit robust baseline monitoring 

data; ensure consistency with State Section 303(d) assessment methodology; and ensure 

that genus-based biological assessments are conducted. Monitoring must occur both 

upstream and downstream of each valley fill and at one or more appropriate locations 

downstream of the project, both during and after construction. 

V. National Environmental Policy Act (NEPA)

NEPA requires preparation of an Environmental Impact Statement (EIS) for major 

federal actions significantly affecting the quality of the human environment. The purpose of an 

EIS is to comprehensively evaluate the wide range of potential environmental, human health, 

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social and economic impacts associated with the proposed project, consider alternatives that may 

avoid and minimize adverse impacts, and provide for public involvement in the agency’s 

evaluation. 

 

The Regions should work with the Corps and OSM to ensure that the NEPA analyses 

associated with federal permit decisions provide, through an open and accountable process, a 

comprehensive evaluation of the potential impacts associated with proposed actions, as well as 

an analysis of reasonable alternatives that may avoid or minimize adverse impacts. The Corps 

has announced its intention to issue a notice of proposed rulemaking expanding the Corps NEPA 

scope of review to consider all of the effects of proposed surface coal mining “valley fills” on the 

aquatic environment. EPA will work with the Corps toward that objective, and furthering the 

purpose of NEPA to provide information to the decision maker, other federal and state agencies, 

and the public. In the interim, EPA will work with the Corps on a case by case basis to review 

permit applications and ensure that all relevant environmental information, as well as potential 

alternatives that may avoid or minimize the extent of the valley fills, is fully considered. 

VI. Environmental Justice Considerations

Surface coal mining can have adverse environmental and health impacts on neighboring 

communities. The federal statutes and regulations under which EPA, the Corps, OSM, and the 

states evaluate permit applications for surface coal mining require consideration of the full range 

of potential impacts on the environment, human health, and communities. Executive Order 

12898 requires federal agencies to give particularly careful consideration to potential impacts on 

low-income or minority populations. Federal laws and regulations also require that meaningful 

opportunities be provided for public participation in the permit decision-making process. 

 EPA will work collaboratively with the Corps, OSM, and the states, through permitting 

and NEPA (both EISs and environmental assessments), to identify and address the potential 

adverse human health and environmental effects of proposed projects on low-income and 

minority populations. In addition, EPA will work with the other agencies to ensure that the 

decision making process is more transparent, with increased opportunities for meaningful 

community input and broad access to information. 

VII. Conclusions 

EPA’s Regional offices will continue to be the Agency’s primary field representatives to 

co-implementing agencies, mining companies, affected communities, and interested members of 

the public as we work to respond to CWA, NEPA, and environmental justice issues associated 

with Appalachian surface coal mining permits. We look forward to your leadership as we 

coordinate to develop environmentally effective, scientifically sound, and economically 

responsible approaches for meeting the requirements of the law.

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