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404 Permit Reviews under Enhanced Coordination Procedures in 
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GAO-11-101R: 

Washington, DC 20548:
United States Government Accountability Office: 

October 19, 2010: 

The Honorable Nick J. Rahall, II: 
Chairman: 
Committee on Natural Resources: 
House of Representatives: 

Subject: Surface Coal Mining: Information on Clean Water Act Section 
404 Permit Reviews under Enhanced Coordination Procedures in 
Appalachia, Focusing on West Virginia: 

Dear Mr. Chairman: 

In 2009, West Virginia accounted for about 43 percent of the surface 
coal mining production in Appalachia.[Footnote 1] Surface coal mining 
in the mountainous areas of Appalachia--a process often referred to as 
mountaintop mining--has generated opposition in recent years because 
of its impact on landscapes, streams, ecosystems, and communities. In 
mountaintop mining, before the underlying coal can be extracted, the 
land is cleared of forest and other vegetation. Explosives or other 
techniques are then used to break up the overlying solid rock, 
creating dislodged earth, rock, and other materials known as "spoil." 
Some or most of the spoil is placed back on the mined-out area; 
however, spoil that cannot be safely placed back is often placed as 
"fill" in adjacent valleys or hollows. In some cases, this fill buries 
the headwaters of streams.[Footnote 2] 

Activities associated with surface coal mining are regulated under 
both the Surface Mining Control and Reclamation Act (SMCRA) and the 
Clean Water Act (CWA).[Footnote 3] SMCRA requires mine operators to 
obtain a permit before they begin mining. In West Virginia, the West 
Virginia Department of Environmental Protection (WVDEP) administers 
the SMCRA permit program, subject to the Department of the Interior's 
(Interior) Office of Surface Mining Reclamation and Enforcement's 
(OSM) finding that the state program is in accordance with federal 
law.[Footnote 4] OSM annually evaluates how well the state program is 
administered. To obtain a permit, operators must submit detailed plans 
describing the extent of proposed mining operations and how they will 
reclaim the mine site. If the proposed mining operation discharges 
pollutants into the waters of the United States, the operator also 
must obtain a CWA section 402 permit. WVDEP administers the section 
402 permit program, subject to the Environmental Protection Agency's 
(EPA) authorization of the state's program.[Footnote 5] EPA may review 
proposed state-issued permits and object to the issuance of a section 
402 permit. In addition, if the operation discharges dredged or fill 
material into the waters of the United States, the operator must 
obtain a CWA section 404 permit. In West Virginia, the U.S. Army Corps 
of Engineers (Corps) is responsible for making permit decisions and 
issuing the section 404 permits; EPA may prohibit, withdraw, deny, or 
restrict section 404 permits.[Footnote 6] Furthermore, any discharges 
into the waters of the United States resulting from activities 
conducted under a federal permit, including a section 404 permit, 
require a state certification under CWA section 401 that the 
discharges will comply with water quality standards.[Footnote 7] In 
West Virginia, WVDEP is responsible for issuing this certification. 

At the beginning of 2009, many CWA section 404 surface coal mining 
permit applications for operations in Appalachian states, including 
West Virginia, had been pending for over a year because of litigation 
and other issues, creating a backlog. A case challenging the adequacy 
of the Corps' analysis of environmental impacts on several section 404 
permits was decided in the Corps' favor in February 2009.[Footnote 8] 
In March 2009, at EPA's request, the Corps identified 48 pending 
permit applications that it anticipated would reach permitting 
decisions within 60 days. EPA reviewed these 48 applications and 
identified 6 for which it had substantial environmental concerns. The 
Corps processed the other 42 in accordance with existing procedures. 
For the 6 permit applications of concern, as of August 11, 2010, the 
Corps had issued section 404 permits for 2, EPA and the Corps were 
still reviewing 3, and the applicant had withdrawn 1. For the other 42 
permit applications, the Corps issued permits for 28, 3 were 
withdrawn, 7 were withdrawn but later resubmitted, and 4 were pending, 
as of September 3, 2010. 

After EPA completed its review of these 48 permit applications, it, 
along with the Corps, worked together to develop enhanced coordination 
procedures (ECP) to review the remaining backlog of pending section 
404 permit applications for the Appalachian states. The ECP was 
included as an element of an interagency action plan announced on June 
11, 2009, through a memorandum of understanding signed by EPA, the 
U.S. Army, and Interior.[Footnote 9] As the ECP states, its purpose is 
to: 

* expedite review and final decisions regarding pending section 404 
permit applications for surface coal mining in Appalachia for which 
the Corps had issued a public notice or coordinated with EPA as of 
March 31, 2009; 

* provide the timely resolution of issues for those permit 
applications about which EPA has raised substantial environmental 
concerns; 

* ensure effective coordination among the agencies and consistent 
compliance with applicable CWA provisions, regulations, and relevant 
policy; and: 

* provide additional transparency to the public during the period the 
ECP is in effect. 

In order to facilitate timely resolution of permit applications 
subject to the ECP, Corps districts and EPA regions are to discuss 
applications identified as requiring additional review and 
coordination before the beginning of the formal 60-day review process 
to reduce the total time necessary to reach agreement on each permit. 
When the Corps believes it has received complete information from the 
applicant, it is to provide written notice to the relevant EPA region 
to begin the 60-day review process. Upon receipt of notification from 
the Corps, each district and region is to begin immediately to discuss 
permit applications EPA has identified as having remaining concerns in 
an effort to reach timely resolution. If more time is needed, EPA or 
the Corps may seek a 15-day extension to the 60-day review process. 
Should the Corps choose to issue a section 404 permit after the 60-day 
review period ends, even if issues remain unresolved with EPA, the 
Corps will provide EPA, within 10 days, a written notice explaining 
how the Corps is responding to EPA's concerns.[Footnote 10] Within 10 
days of receiving the Corps' written notice, EPA is to decide whether 
it intends to veto or restrict a permit under its CWA section 404(c) 
authority or to allow the Corps to proceed with its permit decision. 
[Footnote 11] 

In this context, you asked us to determine (1) the number of surface 
coal mining permit applications at each stage of the ECP review 
process, (2) the extent to which EPA Region 3 and the Corps' 
Huntington District are coordinating during the stages of the review 
process, (3) how EPA has communicated the requirements an applicant 
needs to meet to receive a CWA section 404 permit in West Virginia, 
and (4) what EPA and the Corps' plans are for processing new permit 
applications that were not among those listed as of June 11, 2009. Our 
review focused on the Corps' Huntington District and EPA Region 3 
based on congressional interest. 

On September 16, 2010, we briefed your staff on the preliminary 
results of our work. This letter summarizes the information presented 
in that briefing and officially transmits the final briefing slides. 
(See enclosure I.) This letter also provides additional information 
that your staff requested during the briefing on the status of the 28 
CWA section 404 permit applications at the Corps' Huntington District 
undergoing the ECP review. (See enclosure II.) 

Summary: 

As of August 11, 2010, for the 79 CWA section 404 permit applications 
on the final ECP list, the Corps had issued permits for 6 
applications, 1 application was undergoing the 60-day ECP review 
process, 36 applications were awaiting the start of this process, and 
36 applications had been withdrawn. Federal agencies took the 
following steps to develop the final ECP list that EPA published on 
September 30, 2009. First, at the request of EPA and other federal 
agencies, the Corps initially identified a list of 108 permit 
applications at various stages of review for which it had issued a 
public notice or coordinated with EPA, as of March 31, 2009, that 
needed additional evaluation. According to Corps officials, this list 
was developed quickly and contained 31 permit applications that the 
Corps and EPA subsequently decided should not be considered for the 
ECP. As a result, the two agencies removed the 31 applications and 
added 2, reducing the final ECP list to 79 applications. EPA worked to 
develop a consistent approach for reviewing these applications to 
determine if they should be subject to the ECP review process. To make 
this determination, EPA used its Multi-criteria Integrated Resource 
Assessment (MIRA) tool to assess the 79 applications against four 
general areas of concern, which it derived from regulations: (1) 
minimization and avoidance of impacts to aquatic resources, (2) water 
quality impacts, (3) cumulative impacts, and (4) mitigation measures. 
[Footnote 12],[Footnote 13] EPA concluded that all 79 applications had 
at least one area of concern, and it therefore included all 79 in the 
final ECP list that it published on September 30, 2009.[Footnote 14] 
Of these 79 applications, the Corps' Huntington District is 
responsible for reviewing 28. As of August 11, 2010, the Corps' 
Huntington District had issued permits for 5 applications, 15 
applications were awaiting the start of the 60-day ECP review process, 
and 8 applications had been withdrawn. (See enclosure II for more 
details on these 28 permits.) For one of the eight applications that 
had been withdrawn, the applicant redesigned the operation, reapplied, 
and received a section 404 permit outside of the ECP process, and an 
additional three are redesigning their applications and will be 
reapplying for a section 404 permit, according to the Corps' 
Huntington District. 

We could not evaluate the extent to which EPA Region 3 and the Corps' 
Huntington District had coordinated throughout the ECP review process 
because documentation of coordination efforts is limited and varies. 
For example, EPA did not document the concerns it presented to the 
applicants during the initial ECP meetings. Therefore, we could not 
comprehensively assess the applicant-specific concerns and had to rely 
on the notes that Corps officials took during the meetings. In 
addition, EPA and Corps officials sometimes met separately with 
applicants, but we could not ascertain the extent to which the 
agencies shared the information discussed during the meetings. 
According to the ECP, coordination between EPA and the Corps is to 
occur prior to and during the 60-day review process. No time limit has 
been established for coordination that occurs prior to the start of 
the 60-day review process, but EPA and Corps officials indicated that 
the majority of the effort to resolve concerns about an application 
occurs at this time. To coordinate their reviews of permit 
applications, officials at EPA Region 3 and the Corps' Huntington 
District told us that they have been relying on the following 
mechanisms: 

* Initial ECP meetings. EPA, the Corps, WVDEP, and other agencies met 
with each applicant in January and February 2010. EPA presented its 
concerns to the applicant and requested that the applicant provide 
additional information to address these concerns. 

* Monthly meetings. Two days at the beginning of each month have been 
reserved for applicants to meet with all relevant federal and state 
agencies and to present new information to address their concerns. 

* Intermittent coordination. Formal coordination, such as the Corps' 
notice to EPA to start the 60-day review process and EPA's final 
letters to the Corps, as well as informal coordination, such as e- 
mails, phone calls, and other meetings, are also used, as needed, to 
address identified concerns. 

While we were unable to evaluate the extent of the coordination 
occurring between EPA Region 3 and the Corps' Huntington District, 
federal, state, and industry stakeholders with whom we spoke raised a 
number of concerns about the effectiveness of this coordination. 
First, officials and stakeholders said that coordination is hindered 
because EPA does not send decision makers to monthly meetings. 
Officials from the Corps and WVDEP and representatives from the West 
Virginia coal industry expressed frustration over EPA's failure to 
send officials who are authorized to make decisions about proposals 
that applicants present at the monthly meetings to address EPA's 
concerns. Second, according to WVDEP and Corps officials and industry 
representatives, changes made in response to EPA's concerns on a 
section 404 permit application often require changes to operations 
already approved under CWA section 402 or SMCRA permits. This results 
in the need for additional coordination among EPA, the Corps, 
applicants, and WVDEP. This additional coordination can sometimes add 
to the time and cost of obtaining a section 404 permit. For example, 
officials and industry representatives expressed concern that EPA is 
seeking to influence how fills are constructed, which is regulated by 
WVDEP under SMCRA. EPA officials, however, told us that they believe 
that coordination under the ECP has been regular and effective and 
that the additional coordination has resulted in surface coal mining 
projects with reduced environmental, water quality, and human health 
effects consistent with the requirements of the CWA. EPA officials 
also stated that some project costs have been reduced as a result of 
this coordination. 

According to EPA officials, the agency communicates the requirements 
of section 404 and its associated data and information needs to permit 
applicants in West Virginia through the agency's regulations and 
guidance, by publishing the results of scientific studies and 
programmatic reviews, by contacting the applicant directly, and by 
placing information on its Web site. Specifically, according to EPA 
officials, the 404(b)(1) Guidelines formed the basis of the four areas 
of concern that the agency used to assess the 79 permit applications. 
In addition, EPA's April 1, 2010, Guidance further clarifies EPA's 
roles and expectations in reviewing CWA section 404 and section 402 
permit applications and reflects evolving science on conductivity and 
review of states' water quality permit programs.[Footnote 15], 
[Footnote 16] EPA also communicates its data and information needs by 
referencing the results of scientific studies, such as federal studies 
examining elevated conductivity and selenium levels downstream from 
the surface coal mining activities that identified levels at which 
aquatic life is impaired, and programmatic reviews, such as its 2010 
review of states' water quality permit programs, which identified 
weaknesses in states' CWA section 402 programs.[Footnote 17] 
Furthermore, EPA answers applicants' questions directly through 
letters, meetings, phone calls, and e-mails, and posts information on 
how to apply for a section 404 permit on its Web site. Despite EPA's 
efforts, representatives of WVDEP and mining companies in West 
Virginia stated that EPA does not clearly communicate all the 
information the agency needs to satisfy its concerns for a particular 
application. As a result, they are frustrated by EPA's repeated 
requests for additional information and the uncertainty about the 
actions needed to obtain a permit. WVDEP and industry representatives 
told us that the uncertainty over the application process is further 
exacerbated by EPA's assertion that lessons learned from applicants' 
experiences cannot be transferred to other applicants. In response to 
these statements, EPA officials told us that the section 404 
permitting process and the 404(b)(1) Guidelines require a case-by-
case, detailed look at each permit application to reduce 
environmental, water quality, and human health impacts. EPA officials 
also stated that while some applicants have resisted opportunities to 
coordinate with the agencies about reducing project impacts and 
complying with the law, other applicants have effectively collaborated 
with EPA and the Corps to achieve positive permit outcomes. 

For new permit applications that were not among those listed for the 
ECP, as of June 11, 2009, the federal agencies are coordinating and 
reviewing permit applications in accordance with the standard 
procedures that were in effect prior to implementation of the ECP 
process. These procedures are described in 33 C.F.R. Part 325, which 
describes the Corps' permit application review process, and a 
memorandum of agreement between EPA and the Department of the Army, 
pursuant to CWA Section 404(q), which describes the procedures for EPA 
and the Corps to follow when coordinating their reviews of section 404 
permit applications.[Footnote 18] While the procedures have not 
changed, in the post-ECP environment, EPA officials told us, they will 
now be fully exercising the agency's review authority consistent with 
the law, which EPA had not done consistently prior to the ECP. 
Accordingly, EPA officials told us, their reviews will now 
increasingly focus on water quality, including the evolving science on 
conductivity and selenium; public health, including drinking water; 
reducing cumulative impacts; and minimizing and avoiding impacts. In 
West Virginia, to help facilitate coordination among stakeholders, the 
Corps and EPA hold monthly pre-application meetings that are attended 
by WVDEP personnel to allow applicants to discuss their permit 
applications with federal and state agencies to help expedite the 
review process. 

Agency Comments: 

We provided a draft of the enclosed briefing slides to the Corps, EPA, 
and OSM, and provided relevant portions of the slides to WVDEP and the 
West Virginia Coal Association. We also provided a draft of the 
additional information you requested at our September 16, 2010, 
briefing to the Corps for its review and comment. (See enclosure II.) 
OSM and the West Virginia Coal Association provided no comments. In 
oral comments, EPA officials stated that coordination under the ECP 
has been regular and effective, and that the additional coordination 
has resulted in surface coal mining projects with reduced 
environmental, water quality, and human health effects consistent with 
the requirements of the CWA. EPA officials also told us that the 
section 404 permitting process and the 404(b)(1) Guidelines require a 
case-by-case, detailed look at each permit application, but applicants 
vary in their efforts to effectively collaborate with agency 
officials. We incorporated EPA's oral comments into this letter and 
updated the slides. The Corps, EPA, and WVDEP also provided technical 
comments, which we incorporated as appropriate. 

Scope and Methodology: 

To determine the permit requirements for surface coal mining 
operations in Appalachia and the ECP and post-ECP review processes, we 
reviewed legislation, regulations, guidance, and interagency 
agreements, and spoke with officials at the Corps, EPA, OSM, and 
WVDEP, as well as with industry representatives. To determine the 
number of surface coal mining permit applications at each stage of the 
ECP review process, we obtained a status update of the 79 CWA section 
404 permit applications from Corps' headquarters officials. We also 
conducted a detailed review of the Corps' Huntington District and EPA 
Region 3's review of ECP applications and confirmed the status of the 
28 applications in the Corps' Huntington District with district 
officials and officials from EPA Region 3. The Corps' Huntington 
District was responsible for reviewing 35 percent of permit 
applications on the ECP list. The information presented on the 
Huntington District is not generalizable to the entire population of 
ECP permit applications. To determine the extent to which EPA Region 3 
and the Corps' Huntington District are coordinating and how EPA is 
communicating the requirements an applicant needs to meet to receive a 
section 404 permit in West Virginia, we met with officials from the 
Corps' Huntington District, EPA Region 3, WVDEP, Interior's OSM in 
West Virginia, and West Virginia Coal Association. We reviewed 
examples of coordination and communication, including withdrawal 
letters, documentation of ECP meetings, e-mails and notes documenting 
additional discussions with applicants, and letters requesting 
information from applicants. 

We conducted this performance audit from May through October 2010, in 
accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe 
that the evidence obtained provides a reasonable basis for our 
findings and conclusions based on our audit objectives. 

As agreed with your office, unless you publicly announce the contents 
of this report earlier, we plan no further distribution until 30 days 
from the report date. At that time, we will send copies of this report 
to the appropriate congressional committees, Secretaries of Defense 
and of the Interior, Administrator of the Environmental Protection 
Agency, Secretary for the West Virginia Department of Environmental 
Protection, and other interested parties. In addition, the report will 
be available at no charge on the GAO Web site at [hyperlink, 
http://www.gao.gov]. 

If you or your staff have any questions about this report, please 
contact me at (202) 512-3841 or mittala@gao.gov. Contact points for 
our Offices of Congressional Relations and Public Affairs may be found 
on the last page of this report. Major contributors to this report 
were Andrea Wamstad Brown (Assistant Director), Antoinette Capaccio, 
Stephen Cleary, Cheryl Harris, Richard Johnson, Rebecca Shea, and 
Carol Herrnstadt Shulman. 

Sincerely yours, 

Signed by: 

Anu K. Mittal: 
Director, Natural Resources and Environment: 

Enclosures--2: 

[End of section] 

Enclosure I: 

EPA and the Corps' CWA Section 404 Permit Reviews under Enhanced
Coordination Procedures: 

Briefing to the Committee on Natural Resources: 
House of Representatives: 

September 16, 2010: 
(Revised) 

Background — Permits and Certifications Required for Surface Coal 
Mining Operations in West Virginia: 

* Surface Mining Control and Reclamation Act (SMCRA) permit. 

- West Virginia Department of Environmental Protection (WVDEP) 
administers the permit program, subject to Interior's Office of 
Surface Mining Reclamation and Enforcement's (OSM) finding that the 
state program is in accordance with federal law. 

- OSM annually evaluates how well the state program is administered. 

* Clean Water Act (CWA) section 402 permit if the operation discharges 
pollutants into the waters of the United States. 

- WVDEP administers the permit program, subject to EPA's authorization 
of the state's program. 

- EPA may review proposed state-issued permits and object to the 
issuance of a permit. 

* CWA section 404 permit if the operation discharges dredged or fill 
material into the waters of the United States. 

- The Corps is responsible for making permit decisions and issuing 
permits. 

- EPA may prohibit, withdraw, deny or restrict permits. 

* State certification under CWA section 401 that any discharges into 
the waters of the United States resulting from activities conducted 
under a federal permit, including a section 404 permit, will comply 
with water quality standards. 

- WVDEP issues the certification. 

Background: Enhanced Coordination Procedures (ECP): 

ECP's stated purpose is to: 

* expedite review and final decisions regarding pending section 404 
permit applications for surface coal mining in Appalachia for which 
the Corps had issued a public notice or coordinated with EPA as of 
March 31, 2009, 

* provide timely resolution of issues for those permit applications 
about which EPA has raised substantial environmental concerns, 

* ensure effective coordination among the agencies and consistent 
compliance with applicable CWA provisions, regulations, and relevant 
policy, and, 

* provide additional transparency to the public during the period the 
ECP is in effect. 

ECP is an element of an interagency action plan announced on June 11, 
2009, through a memorandum of understanding signed by EPA, the U.S. 
Army, and Interior. 

In order to facilitate timely resolution of permit applications 
subject to the ECP, Corps districts and EPA regions are to discuss 
applications identified as requiring additional review and 
coordination before the beginning of the formal 60-day review process 
to reduce the total time necessary to reach agreement on each permit. 

When the Corps believes it has received complete information from the 
applicant, it is to provide written notice to the relevant EPA region 
to begin the 60-day review process. 

Upon receipt of notification from the Corps, each district and region 
is to begin immediately to discuss permit applications EPA has 
identified as having remaining concerns in an effort to reach timely 
resolution. 

EPA or the Corps may seek a 15-day extension to the 60-day review 
process, if needed. 

Should the Corps choose to issue a section 404 permit after the 60-day 
review period ends, even if issues remain unresolved with EPA, the 
Corps will provide EPA, within 10 days, a written notice explaining 
how the Corps is responding to EPA's concerns. 

Within 10 days of receiving the Corps' written notice, EPA is to 
decide whether it intends to veto or restrict a permit under its CWA 
section 404(c) authority or to allow the Corps to proceed with its 
permit decision. 

Background: Events Leading Up to ECP: 

At the beginning of 2009, many CWA section 404 surface coal mining 
permit applications for operations in Appalachian states, including 
West Virginia, had been pending for over a year as a result of 
litigation and other issues, creating a backlog. 

A case challenging the adequacy of the Corps' analysis of 
environmental impacts on several section 404 permits was decided in 
the Corps' favor in February 2009. In March 2009, at EPA's request, 
the Corps identified 48 pending permit applications that it 
anticipated would reach permitting decisions within 60 days. 

EPA reviewed these 48 applications and identified 6 for which it had 
substantial environmental concerns. The Corps processed the other 42 
in accordance with existing procedures. 

Status of the 6 permit applications of concern, as of August 11, 2010: 

* 2 applications: The Corps had issued section 404 permits. 

* 3 applications: EPA and the Corps continue to review. 

* 1 application: Withdrawn by the applicant. 

For the other 42 permit applications: The Corps issued permits for 28, 
3 were withdrawn, 7 were withdrawn and resubmitted, and 4 were 
pending, as of September 3, 2010. 

Objectives: 

1. How many surface coal mining permit applications are at each stage 
of the ECP review process? 

2. To what extent are EPA Region 3 and the Corps' Huntington District 
coordinating during the stages of the review process? 

3. How has EPA communicated the requirements an applicant needs to 
meet to receive a CWA section 404 permit in West Virginia? 

4. What are EPA and the Corps' plans for processing new permit 
applications that were not among those listed as of June 11, 2009? 

Scope and Methodology: 

* Reviewed legislation, regulations, guidance, and interagency 
agreements. 

* Focused on the Corps' Huntington District and EPA Region 3 based on 
congressional interest-35% of permit applications on the ECP list; 
information not generalizable to all ECP permit applications: 

- Obtained status update of CWA section 404 permit applications from the
Corps. Confirmed status information with officials from the Corps' 
Huntington District and EPA Region 3. 

- Met with officials from the Corps' Huntington District, EPA Region 
3, WVDEP, Interior's OSM in West Virginia, and West Virginia Coal 
Association. 

- Reviewed examples of coordination and communication, including 
withdrawal letters, documentation of ECP meetings, e-mails and notes 
documenting additional discussions with applicants, and letters 
requesting information Rom applicants. 

Objective 1: Applications at Each Stage of ECP Review Process: 

At the request of EPA and other federal agencies, the Corps initially 
identified a list of 108 permit applications at various stages of 
review for which it had issued a public notice or coordinated with 
EPA, as of March 31, 2009, that needed additional evaluation. 

According to Corps officials, the initial list of 108 permit 
applications was developed quickly and contained several permit 
applications that should not have been considered for review under the 
ECP process. 

As a result, the Corps and EPA removed 31 applications and added 2 
applications, reducing the ECP list to 79 applications.
Page 10 

Table: How the Corps and EPA Reduced the List of 108 CWA Section 404 
Permit Applications to 79 Applications: 

Initial total: 108. 

Permit application was subsequently withdrawn by the mining company: 
-14. 

Permit issuance was imminent and occurred prior to, or concurrent 
with, the publication of the list: -8. 

An ongoing enforcement action precluded a permit decision: -3. 

Permit application was not complete: -1. 

Underground mining operations EPA determined were inappropriate for 
ECP: -5. 

Additional applications added to the original list: +2. 

Final total number of applications to be considered for ECP: 79. 

Source: GAO analysis of Corps' data. 

[End of table] 

EPA regions 3, 4, and 5 worked to develop a consistent approach for 
reviewing the 79 applications to determine if they should be subject 
to the ECP review process. 

EPA used its Multi-criteria Integrated Resource Assessment (MIRA) tool 
to assess the 79 applications against four general areas of concern 
which it derived from regulations: 

* Minimization and avoidance of impacts to aquatic resources; 

* Water quality impacts; 

* Cumulative impacts; 

* Mitigation measures. 

All 79 applications had at least 1 area of concern and were therefore 
included in the final ECP list that EPA published on September 30, 
2009. 

Table: Number of CWA Section 404 Permit Applications at Each Stage of 
ECP, by Corps District, as of August 11, 2010: 
					
Corps district: Huntington[A]; 
Status: 
Application withdrawn: 8; 
Application awaiting start of 60-day review process: 15; 
Application undergoing 60-day review process: 0; 
Permit issued for application: 5; 
Total: 28. 

Corps district: Louisville[A]; 
Status: 
Application withdrawn: 24; 
Application awaiting start of 60-day review process: 21; 
Application undergoing 60-day review process: 1; 
Permit issued for application: 0; 
Total: 46. 

Corps district: Nashville; 
Status: 
Application withdrawn: 2; 
Application awaiting start of 60-day review process: 0; 
Application undergoing 60-day review process: 0; 
Permit issued for application: 1; 
Total: 3. 

Corps district: Pittsburgh; 
Status: 
Application withdrawn: 2; 
Application awaiting start of 60-day review process: 0; 
Application undergoing 60-day review process: 0; 
Permit issued for application: 0; 
Total: 2. 

Corps district: Total; 
Status: 
Application withdrawn: 36; 
Application awaiting start of 60-day review process: 36; 
Application undergoing 60-day review process: 1; 
Permit issued for application: 6; 
Total: 79. 

Source: GAO analysis of Corps' data. 

[A] Three permit applications for operations located in Kentucky that 
were originally filed in the Corps' Huntington District were 
transferred to its Louisville District. One of these permit 
applications has been withdrawn and two are awaiting the start of the 
60-day review process. 

[End of table] 

Status of the Corps' Huntington District's 28 permit applications on 
the ECP list: 

* Permits issued for 5 applications; 

* 15 applications awaiting start of the 60-day review process: 

- 9 applicants responding to requests for additional information; 

- 6 applicants have not been responsive; 

* 8 applications have been withdrawn. 

Applicants decided to redesign and resubmit 4 of the 8 withdrawn 
applications at the Huntington District: 

* 1 applicant was issued a section 404 permit outside of the ECP 
process; 

* 3 applicants are still in process of resubmitting applications for 
review. 

* 2 of the 8 withdrawn applications were administratively withdrawn by 
the Corps because requested information had not been received. 

* 2 others were withdrawn by the Corps at the request of the applicant. 

[End of Objective 1] 

Objective 2: EPA Region 3 and Corps' Huntington District Coordination 
of Review under ECP: 

Coordination between EPA and the Corps is to occur prior to and during 
the 60-day review process. 

No time limit has been established for coordination that occurs prior 
to the start of the 60-day review process. 

EPA and Corps officials indicated that the majority of the effort to 
resolve concerns about an application occurs prior to the start of the 
60-day review process. 

EPA Region 3 and Corps' Huntington District officials told us that 
they have been relying on a variety of coordination mechanisms: 

* Initial ECP meetings-—EPA, the Corps, WVDEP, and other agencies met 
with each applicant in January and February 2010. EPA presented its 
concerns to the applicant and requested the applicant provide 
additional information to address these concerns. 

* Monthly meetings-—Two days at the beginning of each month have been 
reserved for applicants to meet with all relevant federal and state 
agencies and to present new information to address their concerns. 

* Intermittent coordination-—Formal coordination, such as the Corps' 
notice to EPA to start the 60-day review process and EPA's final 
letters to the Corps, as well as informal coordination, such as e-
mails, phone calls, and other meetings, as needed to address 
identified concerns. 

We could not evaluate the extent to which EPA Region 3 and the Corps' 
Huntington District had coordinated throughout the process because 
documentation of coordination efforts is limited and varies. 

* EPA did not document the concerns it presented to the applicants 
during the initial ECP meetings. Therefore, we could not 
comprehensively assess the applicant-specific concerns and had to rely 
on the notes that Corps officials took during the meetings. 

* EPA and Corps officials sometimes meet separately with applicants, 
but we could not ascertain the extent to which the agencies shared the 
information discussed during the meetings. 

Officials and stakeholders said that coordination is hindered because 
EPA does not send decision makers to monthly meetings. Officials from 
the Corps and WVDEP and representatives from the West Virginia coal 
industry expressed frustration over EPA's failure to send officials 
who are authorized to make decisions about proposals that applicants 
present at monthly meetings to address EPA's concerns. 

According to WVDEP and Corps officials and industry representatives, 
changes made in response to EPA's concerns on a section 404 permit 
application often require changes to operations already approved under 
CWA section 402 or SMCRA permits. This results in the need for 
additional coordination among EPA, the Corps, applicants, and WVDEP. 
This additional coordination can sometimes add to the time and cost of 
obtaining a section 404 permit. For example, officials and industry 
representatives expressed concern that EPA is seeking to influence how 
fills are constructed, which is regulated by WVDEP under SMCRA. 

EPA officials, however, told us they believe that coordination under 
the ECP has been regular and effective and that the additional 
coordination has resulted in surface coal mining projects with reduced 
environmental, water quality, and human health effects consistent with 
the requirements of the CWA. EPA officials also stated that some 
project costs have been reduced as a result of this coordination. 

[End of Objective 2] 

Objective 3: EPA's Communication of Section 404 Requirements to 
Applicants in West Virginia: 

According to EPA, it communicates the requirements of section 404 and 
its associated data and information needs to permit applicants in 3 
ways: 

1. Regulations and agency guidance, such as: 

* 404(b)(1) Guidelines—these regulations form the basis of EPA's four 
areas of concern; 

* April 1, 2010, Guidance—further clarifies EPA's roles and 
expectations in reviewing CWA section 404 and section 402 permit 
applications and reflects evolving science on conductivity and review 
of states' water quality permit programs. 

2. Results of studies, such as: 

* Federal studies examining elevated conductivity and selenium levels 
downstream from the surface coal mining activities—identified levels 
at which aquatic life is impaired; 

* 2010 EPA review of states' water quality permit programs—identified 
weaknesses in states' programs under CWA section 402. 

3. Letters, meetings, phone calls, e-mails, and the agency's Web site 

However, representatives of WVDEP and mining companies in West 
Virginia stated that EPA does not clearly communicate all the 
information it needs to satisfy its concerns for a particular 
application. As a result, they are frustrated by EPA's repeated 
requests for additional information and the uncertainty about the 
actions needed to obtain a permit. 

WVDEP and industry representatives told us that the uncertainty over 
the application process is further exacerbated by EPA's assertion that 
lessons learned from applicants' experiences cannot be transferred to 
other applicants. 

In response to these statements, EPA officials told us that the 
section 404 permitting process and the 404(b)(1) Guidelines require a 
case-by-case, detailed Kook at each permit application to reduce 
environmental, water quality, and human health impacts. While some 
applicants have resisted opportunities to coordinate with the agencies 
about reducing project impacts and complying with the law, other 
applicants have effectively collaborated with EPA and the Corps to 
achieve positive permit outcomes. 

[End of Objective 3] 

Objective 4: Process for Reviewing Permit Applications Not on ECP List: 

For post-ECP permit applications, the federal agencies are 
coordinating and reviewing permit applications in accordance with the 
standard procedures that were in effect prior to implementation of the 
ECP process. These procedures are described in: 

* The Corps' permit application review process (33 CFR part 325). 

* EPA and the Corps' coordination procedures (pursuant to CWA Section 
404(q)). 

However, in the post-ECP environment, EPA officials told us, they will 
now be fully exercising the agency's review authority consistent with 
the law, which EPA had not done consistently prior to the ECP. 

Accordingly, EPA officials told us, their reviews will now 
increasingly focus on: 

* water quality, including evolving science on conductivity and 
selenium; 

* public health, including drinking water; 

* reducing cumulative impacts; and; 

* minimizing and avoiding impacts. 

In West Virginia, the Corps and EPA hold monthly pre-application 
meetings that are attended by WVDEP personnel to allow applicants to 
discuss their permit applications with federal and state agencies to 
help expedite the review process. 

[End of Enclosure I] 

Enclosure II: 

Status of the 28 Clean Water Act Section 404 Permit Applications at 
the Corps' Huntington District, as of August 11, 2010: 

Permits issued for application (5): 

Application number: LRH-2004-01152; 
Applicant: Buckingham Coal; 
Project name: Buckingham Wash Plant; 
County: Perry; 
State: Ohio; 
Status: Permit issued on 10/26/2009. 

Application number: LRH-2005-01385; 
Applicant: Oxford Mining Company, LLC; 
Project name: Halls Knob; 
County: Guernsey; 
State: Ohio; 
Status: Permit issued on 7/12/2010. 

Application number: LRH-2007-01021; 
Applicant: Oxford Mining Company, LLC; 
Project name: Kaiser Mathias; 
County: Tuscarawas; 
State: Ohio; 
Status: Permit issued on 3/8/2010. 

Application number: LRH-2008-00791; 
Applicant: Hobet Mining; 
Project name: Surface Mine No. 45; 
County: Lincoln; 
State: West Virginia; 
Status: Permit issued on 1/6/2010. 

Application number: LRH-2008-00830; 
Applicant: CoalMac, Inc.; 
Project name: Pine Creek Surface Mine; 
County: Logan; 
State: West Virginia; 
Status: Permit issued on 7/27/2010. 

Applications awaiting start of 60-day ECP review process (15). 

Application number: LRH-2005-00217; 
Applicant: Bluestone; 
Project name: Contour Auger 1; 
County: Wyoming; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, but 
applicant has not responded to requests for additional information. 

Application number: LRH-2005-01115; 
Applicant: Green Valley Coal Company; 
Project name: Blue Branch Refuse; 
County: Nicholas; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, and 
applicant responding to requests for additional information. 

Application number: LRH-2005-01198; 
Applicant: Consol; 
Project name: Taywood West & Marrowbone; 
County: Mingo; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, and 
applicant responding to requests for additional information. 

Application number: LRH-2006-00100; 
Applicant: ICG Eastern, LLC; 
Project name: Jenny Creek Surface Mine; 
County: Mingo; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, but 
applicant has not responded to requests for additional information. 

Application number: LRH-2006-00760; 
Applicant: Paynter Branch Mining; 
Project name: Paynter Branch South Surface Mine; 
County: Wyoming; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, but 
applicant has not responded to requests for additional information. 

Application number: LRH-2006-02033; 
Applicant: Wildcat; 
Project name: #2 Surface; 
County: Kanawha; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, but 
applicant has not responded to requests for additional information. 

Application number: LRH-2007-00134; 
Applicant: Atlantic Leasco; 
Project name: Muddlety Surface Mine No. 1; 
County: Nicholas; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, and 
applicant responding to requests for additional information. 

Application number: LRH-2007-00182; 
Applicant: Alex Energy, Inc.; 
Project name: Federal Surface Mine; 
County: Nicholas; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, but 
applicant has not responded to requests for additional information. 

Application number: LRH-2007-00285; 
Applicant: Alex Energy, Inc.; 
Project name: Lonestar Surface Mine; 
County: Nicholas; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, and 
applicant responding to requests for additional information. 

Application number: LRH-2007-00286; 
Applicant: Pioneer Fuel; 
Project name: MT5B; 
County: Raleigh; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, and 
applicant responding to requests for additional information. 

Application number: LRH-2008-00491; 
Applicant: CONSOL of Energy; 
Project name: Buffalo Mt. Surface Mine; 
County: Mingo; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, and 
applicant responding to requests for additional information. 

Application number: LRH-2008-00562; 
Applicant: Eastern Associated Coals; 
Project name: Huff Creek Surface Mine; 
County: Wyoming/Logan; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, and 
applicant responding to requests for additional information. 

Application number: LRH-2008-00805; 
Applicant: Coyote Coal Company; 
Project name: Joes Creek Surface Mine; 
County: Boone/Kanawha; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, but 
applicant has not responded to requests for additional information. 

Application number: LRH-2008-01098; 
Applicant: Frasure Creek Mining; 
Project name: Spring Fork Surface Mine No. 2; 
County: Mingo; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, and 
applicant responding to requests for additional information. 

Application number: LRH-2009-00428; 
Applicant: Consol of Kentucky; 
Project name: Spring Branch No. 3 Deep Mine; 
County: Mingo; 
State: West Virginia; 
Status: Application awaiting start of 60-day review process, and 
applicant responding to requests for additional information. 

Applications withdrawn from ECP (8). 

Application number: LRH-2003-00065; 
Applicant: Hobet Mining; 
Project name: Hewett; 
County: Boone; 
State: West Virginia; 
Status: Application withdrawn, but applicant is in the process of 
redesigning and resubmitting application for review. 

Application number: LRH-2004-00624; 
Applicant: Independence Coal Company; 
Project name: Constitution Surface Mine; 
County: Boone; 
State: West Virginia; 
Status: Application administratively withdrawn by the Corps. 

Application number: LRH-2004-01155; 
Applicant: Brooks Run Mining; 
Project name: Brandy St. & Cove Mtn.; 
County: Webster; 
State: West Virginia; 
Status: Application withdrawn by the applicant. 

Application number: LRH-2004-01451; 
Applicant: Independence Coal Company; 
Project name: Glory Surface Mine; 
County: Boone; 
State: West Virginia; 
Status: Application administratively withdrawn by the Corps. 

Application number: LRH-2005-00421; 
Applicant: Oxford Mining Company, LLC; 
Project name: Peabody 3; 
County: Coshocton/Muskingum/Guernsey; 
State: Ohio; 
Status: Application withdrawn, but applicant redesigned and 
resubmitted application and was issued a permit. 

Application number: LRH-2005-01211; 
Applicant: Premium Energy, Inc.; 
Project name: Premium Mills Surface Mine; 
County: McDowell; 
State: West Virginia; 
Status: Application withdrawn, but applicant is in the process of 
redesigning and resubmitting application for review. 

Application number: LRH-2006-00127; 
Applicant: Consol of Kentucky; 
Project name: Slone Branch Mine; 
County: Knott; 
State: Kentucky; 
Status: Application withdrawn by the applicant. 

Application number: LRH-2006-02290; 
Applicant: Colony Bay Coal Co.; 
Project name: Colony Bay Surface Mine; 
County: Boone; 
State: West Virginia; 
Status: Application withdrawn, but applicant is in the process of 
redesigning and resubmitting application for review. 

Source: GAO analysis of Corps' data. 

Note: Three permit applications for operations located in Kentucky 
that were originally filed in the Corps' Huntington District were 
transferred to its Louisville District. One of these permit 
applications has been withdrawn and two are awaiting the start of the 
60-day review process. 

[End of table] 

[End of section] 

Footnotes: 

[1] Surface coal mining production in Appalachia also includes areas 
in Alabama, Kentucky, Maryland, Ohio, Pennsylvania, Tennessee, and 
Virginia. 

[2] For additional information on surface coal mining in Appalachia, 
see GAO, Surface Coal Mining: Characteristics of Mining in Mountainous 
Areas of Kentucky and West Virginia, [hyperlink, 
http://www.gao.gov/products/GAO-10-21] (Washington, D.C.: Dec. 9, 
2009) and GAO, Surface Coal Mining: Financial Assurances for, and Long-
Term Oversight of, Mines with Valley Fills in Four Appalachian States, 
[hyperlink, http://www.gao.gov/products/GAO-10-206] (Washington, D.C.: 
Jan. 14, 2010). 

[3] Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1201-1328 
(2006); Clean Water Act, 33 U.S.C. §§ 1251-1387 (2006). 

[4] OSM approved West Virginia's SMRCA State Program in 1981. 

[5] EPA authorized West Virginia's section 402 permit program in 1982. 
In 2009, EPA was petitioned under the CWA by citizens in West Virginia 
to withdraw the state's section 402 program based on concerns 
regarding permitting of mining activities. 

[6] 33 U.S.C. § 1344(c) (2006). The Administrator is authorized to 
prohibit the specification (including the withdrawal of specification) 
of any defined area as a disposal site, and he is authorized to deny 
or restrict the use of any defined area for specification (including 
the withdrawal of specification) as a disposal site in certain 
circumstances. 

[7] 33 U.S.C. § 1341 (2006). 

[8] Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177 
(4th Cir. 2009). 

[9] U.S. Department of the Army, U.S. Department of the Interior, and 
U.S. Environmental Protection Agency, Memorandum of Understanding 
Among the U.S. Department of the Army, U.S. Department of the 
Interior, and U.S. Environmental Protection Agency Implementing the 
Interagency Action Plan on Appalachian Surface Coal Mining, Jun. 11, 
2009. Lawsuits have been filed by the National Mining Association and 
the state of West Virginia that, among other things, challenge the ECP 
and an EPA guidance document concerning the review of surface coal 
mining operations under the CWA and other standards. National Mining 
Association v. Lisa Jackson, No. 1:10-cv-01220 (D. D.C. filed July 20, 
2010); Randy C. Huffman v. United States Environmental Protection 
Agency, No. 2:10-cv-01189 (N.D. W. Va. filed October 6, 2010). 
Pursuant to its long-standing policy of not addressing issues in 
ongoing litigation, GAO has not evaluated the parties' claims and has 
not come to any conclusions on any matters in dispute in the pending 
cases. 

[10] According to Corps officials, responses may include revisions, 
special conditions, and mitigation requirements. 

[11] EPA has not yet vetoed any permit subject to the ECP. 

[12] MIRA is a tool that EPA has developed to help decision makers 
make more informed environmental decisions that include stakeholder 
concerns. It helps decision makers organize and rank decision criteria 
or indicators, link data to a policy decision, determine the relative 
importance of decision criteria, and explore alternative decision 
options. 

[13] These regulations, known as the 404(b)(1) guidelines, can be 
found at 40 C.F.R. Part 230. 

[14] According to EPA officials, all applications on the ECP list have 
been pending since the previous administration ended in January 2009, 
and several have been pending since 2004. 

[15] U.S. Environmental Protection Agency, 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 (Washington, D.C.: Apr. 1, 
2010). According to EPA, this guidance was developed in response to 
requests from states, congressional representatives, and industry. 

[16] Conductivity is a measure of the ability of water to pass an 
electrical current. Conductivity in water is affected by the presence 
of inorganic dissolved solids, such as aluminum, calcium, chloride, 
iron, magnesium, nitrate, phosphate, sodium, and sulfate. EPA's April 
1, 2010, Guidance states that numerous studies have shown that high 
levels of conductivity are a cause of water quality impairments 
downstream from mine discharges. 

[17] Selenium is a chemical element associated with mine run-off. 
EPA's April 1, 2010, Guidance states that studies have shown that 
ecological losses downstream of coal mining valley fills are 
associated with increased levels of selenium. 

[18] 33 U.S.C. § 1344(q) (2006). 

[End of section] 

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