At the request of industry stakeholders, the U.S. Army Corps of Engineers (Corps) has provided the public with an additional month to offer comments on Corps regulations that may be appropriate for repeal, replacement, or modification. The comment period now closes October 18, 2017 (September 15, 2017, FR). One commenter that did not need the extension is Murray Energy Company (MEC), which has already fired off a 10-page discussion of which Corps policies and regulations need to be improved. MEC is the country’s largest underground coal mining company.
The company’s comment (available at www.regulations.gov; ID COE-2017-0004-0005) describes concerns with Corps’s regulatory programs affecting mining reclamation, compensatory mitigation, long-term protection, and monitoring. But the bulk of the letter focuses on EPA’s role in permitting under Clean Water Act (CWA) Section 404 (commonly called the dredge and fill program).
Two-Year Wait for Simple Permit
MEC first notes that in recent years, there have been significant delays in obtaining a “simple 404 permit.”
“Most of our 404 permit applications (Individual Permits) are taking 1.5 to 2 years to process,” wrote MEC. “This is excessive, considering the amount of area impacted and the amount of effort put into compiling a complete submittal package that is prepared in a manner to provide ease of review. Even on larger projects we were unable to obtain a 404 permit after 10 plus years of working with the Corps and EPA; this is untenable. In the business world and particularly in the coal mining business, a +10 year permitting time period is not sufficient to meet the needs for the operations, to react to market conditions, or to meet short and long term planning needs.”
MEC says delay is sometimes caused by procedural and administrative issues—e.g., a preponderance of informal discussion among Corps and EPA staff, which are not documented and which result in breakdowns in communication. A more fundamental cause results from the different environmental goals and roles of the Corps and the EPA in the permitting program. CWA Section 404 authorizes the Corps to issue permits but also provides that the EPA participate in the program, for example, by having the power to block a Corps permit for any area defined as a disposal site. The various roles of the Corps and the EPA in the 404 program were set out in a 1992 memorandum of agreement (MOA) written by the two agencies.
MOA Misses Target
But MEC asserts that the MOA is “a poorly conceived design” that is not achieving the goal of section 404(q) of the CWA—to minimize, to the maximum extent practicable, duplication, needless paperwork, and delays in the issuance of permits.” The MEC asserts that the Corps should take the lead on final permitting decisions, and EPA’s role should be secondary and be limited to technical support.
“The MOA is clearly missing the target by introducing ‘joint participation,’ which increases dual review rather than clear lines of authority and responsibilities,” MEC states. “EPA’s technical guidance needs to be in the form of technical support rather than a participative review role. Their comments should only address the technical environmental aspects and not the application of those aspects to ‘due process or procedures.’ The daily involvement [of the EPA] has created increasing delays to scheduling simple meetings, field visits, or any other coordinated effort needed to move the application through the review process. Instead, EPA is involved in all aspects of the process, including daily conversations and decision making resulting in significant changes in rule interpretations and advice as to how the process should work.”
EPA Not Questioned
MEC appears to have no confidence that the Corps will assert a leadership role. “Too often the Corps reactively responds to EPA’s requests without question or justification and aimlessly goes down a ‘rabbit hole’ chasing insignificant items to the overall review of the application,” writes MEC. “Strong leadership from the Corps is needed to stay on track with the review process of the application.”
In addition to revising the MOA, MEC recommends that the EPA be eliminated from the day-to-day review process, “minimizing their participation in the process until a draft review document has been developed.”