Consistent with the CWA and the recent Environmental Protection Agency (EPA) guidance on mountaintop mining, the agency’s consultation with the company and the Corps led to significant changes to the permit that will reduce potential adverse impacts to water quality and avoid significant degradation of the aquatic ecosystems in the Pine Creek watershed. The key changes include reductions to stream impacts, protection of water quality through a strict conductivity level, enhanced mitigation and restoration, and reduction of cumulative impacts. The EPA also reached an agreement with the company related to sequencing of valley fill construction. The company may only proceed with the first valley fill and any additional valley fills will have to be evaluated individually as part of the agreement. If the EPA and the Corps find any of the valley fills are adversely impacting water quality, they will not approve additional mining at the site. The company agreed to meet all conditions presented by the agency.

Key changes and special permit conditions obtained by the EPA and consistent with April 1 Guidance include:

Reduce Stream Impacts—The original mine plan proposed to have the full mine area disturbed and all three proposed valley fills under construction within 12 to 18 months of commencing operations. The EPA worked with the company to reduce stream impacts significantly.

Protect Water Quality—The EPA worked with the Corps and the company to ensure mining related conductivity (a measure of salinity) remains at levels that will not cause or contribute to degradation to water quality or streamlife. Extensive chemical and biological stream monitoring is required to demonstrate that conductivity remains below acceptable levels, set in the EPA guidance, before the Corps and the EPA will approve additional mining. If this condition is not achieved, Coal-Mac is not authorized to proceed with the construction of the next valley fill.

Sequencing Valley Fills—The EPA reached an agreement to sequence valley fill construction so that no new mining is approved by the Corps and the EPA unless it is demonstrated that water quality standards are being met and public health is being protected.

Enhance Mitigation—Coal-Mac proposed on-site stream restoration and creation of 40,000-plus linear feet of stream. The plan includes a significant monitoring plan and benchmarks for success, an adaptive management plan that provides back up plans if the projects are unsuccessful. It also includes upfront financial assurances. The applicant’s benchmarks of success include biological, chemical and physical measures that are intended to replace the lost functions within the immediate watershed. The EPA believes the proposed mitigation is consistent with CWA regulations.

Avoid Cumulative Impacts—To address cumulative impacts, Coal-Mac has offered to deed-restrict three areas previously permitted to be filled on the Phoenix No. 5 surface mine operation, where five valley fills were authorized. Two valley fills have been constructed and Coal-Mac will deed-restrict the three-remaining unfilled sites. Those areas will not be subject to filling now or in the future. This is an avoidance of impacts to 3,900 linear feet of stream channel.

In an EPA press release, the agency said it has committed to use its Clean Water Act regulatory authorities to improve protection for the public by reducing environmental and water quality impacts associated with coal mining. Approval of this permit demonstrates once again the health, waters and environment of coalfield communities can be protected while also preserving the jobs and economic benefits.