Obama seeks to block record mountaintop removal permit

September 8, 2009 by Ken Ward Jr.

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Late last week — just before the Labor Day holiday — the Obama administration EPA issued a mountaintop removal bombshell: A major letter that blasts a whole host of problems with the largest strip-mining permit ever issued in the state of West Virginia.

EPA experts have concluded that the mine, as currently designed and permitted, would violate the federal Clean Water Act. They’ve urged the Army Corps of Engineers to suspend, revoke or modify the permit. In response, Corps lawyers have asked U.S. District Judge Robert C. Chambers for a 30-day stay in legal proceedings over this permit, to give Corps staffers time to re-examine the project.

I’ve posted a copy of the EPA letter to the Corps here, and a copy of the Corps’ legal motion here. The letter was dated last Thursday and the legal motion was filed the following day.

In the five-page letter, EPA experts express grave concerns about the mine’s “potential to degrade downstream water quality, and to cause or contribute to potential excursions of West Virginia’s narrative water quality standards.”

EPA also cautioned that “additional valley fill minimization techniques such as further backstacking material on-site where appropriate, inclusion of sidehill fills with stream relocations, or other design modifications to ameliorate water quality impacts need serious consideration” from the company.

And, EPA said that “scientific and field observations strongly suggest that compensatory mitigation measures heretofore accepted by the U.S. Army Corps of Engineers, such as on-site stream creation, may not result in functional replacement with specific performance criteria.”

Read on for more on the EPA letter …

The Corps approved this permit — all 2,278 acres and 8.3 miles of valley fills and other stream-filling — back in January 2007.  The proposal was scaled back slightly, from more than 10 miles of valley fills and 3,113, acres, from the original Spruce No. 1 Mine, proposed for the Pigeonroost Hollow area of Logan County, near Blair.

For those who don’t recall, this was one of the major mountaintop removal permits that was the subject of the early public protests and legal actions against the practice back in the late 1990s. Judge Charles H. Haden II blocked the permit, which Arch Coal Inc. had hoped would allow it to continue operations of its Dal-Tex complex. But when Arch couldn’t come up with a permit that would pass legal muster, the operation closed and more than 300 UMWA members lost their jobs. Updated to clarify: Arch Coal has shifted the Spruce Mine to its non-union subsidiary, Mingo Logan Coal.

Work on the permit continued though, and as far as I know, this is the only individual mountaintop removal permit for which regulators have ever completed a formal Environmental Impact Statement.

After the Corps issued the Clean Water Act permit for the mine more than two years ago, environmental groups asked Chambers to block the operation as part of a larger suit pending over Corps’ permitting practices. Since then, Chambers has ruled against the Corps, demanding more rigorous permit reviews.  The 4th Circuit Court of Appeals overturned that decision. But, the Spruce Mine was not one of those that Chambers had specifically blocked. The permit remained in front of the court, but the company agreed to only operate on part of the site, to avoid another legal skirmish while waiting for the appeals court decision.

Back in July, the company cited that 4th Circuit decision in asking Chambers  to dismiss the legal action against the Spruce Mine. Since then, Chambers has several times given the Corps more time to respond to the company’s request.

While officials from the Manchin administration here in West Virginia have complained that EPA has little in the way of evidence — or at least new evidence —  about the damaging impacts of mountaintop removal, this new EPA letter on the Spruce Mine cites “new information and circumstances” since the permit approval in January 2007 and “recent data and analysis” about downstream impacts of valley fills.

Among the EPA findings:

“Recent data and analysis have revealed that downstream water quality impacts have not been adequately addressed by the permit, especially in light of clear evidence that effluent from valley fill sedimentation ponds is very likely to elevate conductivity and thus negatively affect healthy aquatic communities.” 

EPA reported that the Little Coal River watershed — where the mine is located — “contains the largest number of impaired stream miles in the Central Appalachian Ecoregion in West Virginia.” But Spruce Fork and the Little Coal River have EPA- and court-mandated plans to require cleanup of excess iron, aluminum, selenium, acidity, sediment and fecal coliform bacteria. EPA noted these cleanup plans “identified mining as  a source for many of these impairments, and this project will likely discharge these same pollutants into these watersheds.” 

The final EIS for the Spruce Mine stated that “[A]n increase in total dissolved solids is expected in the early stages of the project when clearing and filing of each valley fill site begins.  EPA stated, “This temporary increase would be expected to return to pre-mining conditions as areas are regraded and revegetated … [but] the scientific literature as well as many state watershed reports have consistently shown that this assertion is not technically supportable.

According to EPA, “These studies and reports indicate that surface mining with valley fills in Central Appalachia is strongly related to downstream biological impairment. They also show that surface mining impacts on aquatic life are strongly correlated with ionic strength (conductivity) in the Central Appalachian stream networks.

EPA concluded: “This increase in conductivity impairs aquatic life use, is persistent over time and cannot be easily mitigated or removed from stream channels.”

EPA is concerned that the permit and the EIS “do not reflect the data and analyses and … their implications regarding water quality impacts associated with surface coal mining.” These studies together, EPA said, “strongly suggest that further water quality degradation and water quality exceedences may occur as a result of new mining activities at Spruce No. 1 Mine.”

EPA also noted that there are 11 additional mining projects proposed within the Coal River Sub-basin, including four pending permits under consideration within the Obama administration’s enhanced permit review process.  These 11 projects would impact nearly 34 miles of streams, EPA said. Also, there are six other permits which have been issued by the Corps, but for which work has not yet commenced because of ongoing litigation.

EPA added:

In light of these potential significant cumulative impacts to the watershed and latest information about water quality impacts associated with surface mining with valley fill operations, the mitigation plan should be re-evaluated to ensure that we are achieving functional replacement of the lost aquatic resources.

The mitigation plan included the creation of on-site stream channels through the use of sediment ditches. EPA has consistently objected to the use of these ditches as compensation for lost headwater stream channels. These channels are often only evaluated for success utilizing structural performance critieria, and not incorporating biological and chemical performance criteria to ensure success.

Without monitoring to ensure restored or created streams provide chemical, physical and ecological functional replacement for streams being destroyed by mining activities, these channels will only serve as a conduit for pollutants from the site to downstream waters. It is unlikely that the proposal as permitted will achieve functional replacement.

EPA concluded by  proposing that the Corps prepare a supplemental EIS to try to address these new issues and concerns …

34 Responses to “Obama seeks to block record mountaintop removal permit”

  1. […] Blogs @ The Charleston Gazette – » Obama seeks to block record mountaintop removal permit blogs.wvgazette.com/coaltattoo/2009/09/08/obama-seeks-to-block-record-mountaintop-removal-permit – view page – cached […]

  2. Jerry Cope says:

    Looks like the EPA is no longer for sale to the highest bidder…….

  3. Chuck Nelson says:

    It is good to know the EPA is now taking the science that’s available, and making it a part in deciding whether valley fills is a violation of the Clean Water Act. It ‘s also good to see that the EPA, is not caving in, to the coal industry. This is some relief for communities,and it’s people.

  4. […] Ken Ward Jr. and his Coal Tattoo blog: Late last week — just before the Labor Day holiday — the Obama administration EPA issued a […]

  5. WVJustice says:

    This is great! I’m glad to see the EPA looking at REAL SCIENCE about the real life impacts of Mountaintop Removal on our state. I hope they continue to move in this direction

  6. civil joe says:

    While I applaud this first step toward the EPA doing their job to protect the environment from mountaintop removal, the first link shared in this article highlights the simple fact that, even if the permits were revised to eliminate valley fills, mountaintop removal still has a devastating effect on the most valuable species in Appalachia – human beings who live there.

  7. Clem Guttata says:

    Ken — I’m not sure if I totally agree with your characterization of the WV DEP’s current position.

    Yes, one reasonable reading of Huffman’s testimony is that the WV DEP complained about a lack of new information. But, since the time of that testimony we also have the clarification statement by the WV DEP:

    “The sentence in [Sec. Huffman’s] testimony that is the subject of the issue should not have been construed to mean that the only impact of valley fills was a diminished number of a certain genus of mayflies.”

    To me, that’s a definitive disclosure that there are indeed additional, yet to be officially revealed, impacts of valley fills known to the WV DEP. (Presumably including, but not necessarily limited to, the contents of the leaked memo.)

    It’s been two weeks since the WV DEP’s clarification memo. With this EPA permit recommendation, it would be an excellent time for Sec. Huffman to definitely state what his department knows about valley fill impacts.

  8. bo webb says:

    It’s encouraging that the EPA is finally looking at the reality of mtr. Coal is a declining industry. There is far less demand for coal today than just two short years ago when it supplied 53 percent of our electrical suppl; that number is currently down to 42%. That is a major shift. Every state in the U.S. has a growing number of green energy projects in the works, but here in WV, we have zero. I’ve never been opposed to underground coal mining, and I have the utmost respect for those that go underground. I thank them all for the sacrifices they have made for our country. They are as brave as it gets, but their jobs are disappearing. I’m smart enough to realize that the combination of less demand for coal coupled with the coal industry continuing to look for ways to replace workers with machines means all types of coal mining jobs will continue to spiral down. There will be no more booms, but continued busts. The question we face is; what are we going to do to create new jobs for West Virginia workers? Blankenship’s dream is to divide people, create tension and violence in order to continue the path of destruction that has made him personally rich. Our dream should be one of coming together, coal miner, strip miner, treehugger, (if that’s what you want to call people who oppose mtr) to demand and work towards NEW JOBS for West Virginia workers. Jobs that will be there for our kids. Blankenship’s message yesterday was one of greed, hatred and the overthrow of the U.S. government. He showed his true colors and they weren’t red, white, and blue. West Virginians message should be one of unification and willingness to demand NEW JOBS that will create a sustainable future for all.

  9. Brad says:

    Ken, thanks for the treasure trove of information.

  10. eastwood78 says:

    All of the millions of dollars that Mr. Blankenship spent on his great Labor Day celebration did not keep the EPA from shutting down the largest mountaintop mining operation in West Virginia.

    How wonderful that the Government will not cave in to Mr. Blankenship, and also it was not a Massey operation. All we hear is everyone has it in for Massey. Well Arch Coal is not Massey owned.

    I can’t wait to hear the cries of what are we going to do now from the strip miners. Our big SUV and truck and four-wheeler. How will we pay for them? Why just go ask Mr. Blankenship for a job or a loan. I am sure he will gladly open his bank account for you.

    Way to go Obama. You are finally keeping your word. Go EPA for the WVEPA is not going to do anything. They are under Mr. Manchin’s thumb and would not dare to do anything without his approval.

    Thanks Ken for keeping us informed. Keep up the good work.

  11. Shane says:

    Until all of you pull the meter off the side of your house you need to thanks Blankenship for his efforts. I think all the coal fired Power Plants should shut down for a day every month to remind everyone were all the power comes from these Servers are useing. We need to protest the power use of all these book shops, with their coffee shops and servers. Servers alone in America use 18% of our power and cell phones another 14% towers,charging, and not to mention battery polution. But no one wants to give these up to save the mountains.

    You cant have it both ways

  12. JB says:

    Shane, you are mistaken in your assessment in that we as West Virginians can have it both ways as long as there is a willingness on the part of government and the private sector to play a role in the creation with incentives of new green jobs. The future of West Virginia’s economy is dependent upon new innovative ideas that spur green development in ways that will sustain us for the next fifty years. We have the will, we have the people, now it’s up the governor, the legislature, and the regulatory agencies to help us make the transition. It can be accomplished with or without the coal industry, that’s a decision they alone have to make.

  13. Mary Lee Scalf says:

    Thank God the EPA is finally doing its job. Thank God for a president with a brain and the guts to use it . Thank God he has concern for our people, our mountains and the enviroment.

  14. scott 14 says:

    Fecal bacteria coming from valley fills. That a new one to me.

  15. Casey says:

    You go to a store for five loaves of bread which costs $2 each so you can host a tree hugger get together. You are told that the bread has been moved and is now $3. At the other section of the store you find out that you are limited to three loaves of bread and the bread is only sold at their store in the next county. By the time you drive way over there you have to cancel the party, Daryl Hannah finds out there’s no sandwiches and flies back to her home in Illusion, CA, and Heckler goes home because the media guys leave because there’s nothing to eat. At the other store you’re told you can buy two loaves only and they are $5 each but you have to produce no CO2 while transporting the bread (that’s holding your breath a long time on a bicycle), you have to have a PIS (party impact statement) which requires biodegradable plates, silverware, etc with food that’s organically grown by you and no Co2/CH4 producing animal between the slices of bread. Plus the government is backlogged with PIS reviews and they don’t really know what they require in them anyway. So you reschedule the party for 10 years later, get the PIS approved after you agree to cut the invitees in half, disconnect from the electrical grid and install a windmill with a bicycle powered back-up generator. You comply with all conditions, buy the bread (now $50 per loaf) and then the newly elected Federal government determines that party-generated noise and dust will be excessive and cancels the party. When you publicly complain about the system you are labeled greedy, full of hatred and want to overthrow the government.

    Welcome to Arch Coal’s world.

  16. connie says:

    One day, hopefully before the expiration of my children’s lives, there will be other viable methods to produce electric other than coal. The hype that WV can’t live without destroying its mountains, all to benefit the big corporations, is just that. Big business has controlled our local and federal governments for years because of their ability to “buy” what it takes to keep the laws in their favor. Nothing about our state government is about the people who live here, just the businesses who flurish here. Our current governor is just picking up where Bush and his administration left off.

  17. Ken Ward Jr. says:

    Scott 14 …

    EPA is not suggesting, I don’t think, that the fecal problems come from coal mining … note the exact language of the letter says that mining is the cause of “many” of the impairments.

    Ken.

  18. […] toward revoking the largest mountaintop-removal permit in West Virginia history.” Citing “clear evidence” of likely damage, the EPA has asked the U.S. Army Corps of Engineers to “suspend, revoke or […]

  19. […] toward revoking the largest mountaintop-removal permit in West Virginia history.” Citing “clear evidence” of likely damage, the EPA has asked the U.S. Army Corps of Engineers to “suspend, revoke or […]

  20. […] toward revoking the largest mountaintop-removal permit in West Virginia history.” Citing “clear evidence” of likely damage, the EPA has asked the U.S. Army Corps of Engineers to “suspend, revoke or […]

  21. Art N. Livestock says:

    Dear Casey,

    With all due respect, you’re no Johnathon Swift. Perhaps humor requires something of an open mind.

    Speaking of satire, where did Shane get those Brobdingnagian numbers? From the fiction aisle, I’d reckon.

  22. […] toward revoking the largest mountaintop-removal permit in West Virginia history.” Citing “clear evidence” of likely damage, the EPA has asked the U.S. Army Corps of Engineers to “suspend, revoke or […]

  23. […] toward revoking the largest mountaintop-removal permit in West Virginia history.” Citing “clear evidence” of likely damage, the EPA has asked the U.S. Army Corps of Engineers to “suspend, revoke or […]

  24. Casey says:

    Art,

    You’re correct I’m not much of a writer or satirist. The point is that Arch has spent 12 years doing what was required (and beyond) to procure a mining permit. And after this interval and excessive expenses, it still does not have a permit in the moving target of permitting. And if this is fair then I guess I’m close minded.

    Shane,
    Valid points!

  25. […] toward revoking the largest mountaintop-removal permit in West Virginia history.” Citing “clear evidence” of likely damage, the EPA has asked the U.S. Army Corps of Engineers to “suspend, revoke or […]

  26. […] EPA Seeks to Block West Virginia’s Largest Mountaintop Removal Project.By Ken Ward, Jr., Charleston Gazette, September 8, 2009. “The EPA issued a letter that blasts a whole host of problems with an Arch Coal project, initially approved by the Army Corps of Engineers, that is the largest strip-mining permit ever issued in West Virginia. EPA experts have concluded that the mine, as currently designed and permitted, would violate the federal Clean Water Act. In response, Corps lawyers have asked U.S. District Judge Robert C. Chambers for a 30-day stay in legal proceedings over this permit, to give Corps staffers time to re-examine the project.” […]

  27. […] EPA Seeks to Block West Virginia’s Largest Mountaintop Removal Project.By Ken Ward, Jr., Charleston Gazette, September 8, 2009. “The EPA issued a letter that blasts a whole host of problems with an Arch Coal project, initially approved by the Army Corps of Engineers, that is the largest strip-mining permit ever issued in West Virginia. EPA experts have concluded that the mine, as currently designed and permitted, would violate the federal Clean Water Act. In response, Corps lawyers have asked U.S. District Judge Robert C. Chambers for a 30-day stay in legal proceedings over this permit, to give Corps staffers time to re-examine the project.” […]

  28. […] of the action are just now coming out, but EPA has been warning since early September that it would do this if the federal Army Corps of Engineers and Arch Coal Inc. officials did not […]

  29. […] just before labor day the EPA released a letter that indicates that the Obama administration and the EPA are seeking to block one of the largest […]

  30. […] of the action are just now coming out, but EPA has been warning since early September that it would do this if the federal Army Corps of Engineers and Arch Coal Inc. officials did not […]

  31. […] we’re considering EPA’s efforts to block the largest mountaintop removal mine in West Virginia history, and waiting on the agency to come up with a list of other permits it wants to more closely review […]

  32. […] of the action are just now coming out, but EPA has been warning since early September that it would do this if the federal Army Corps of Engineers and Arch Coal Inc. officials did not […]

  33. […] Since first threatening in early September to block the Clean Water Act permit for the Arch Coal Inc. operation, EPA has asked Chambers to suspend that litigation and then to further delay any action while it thought some more about the matter and met with coal company officials to see if there was  a compromise to be had. […]

  34. […] U.S. District Judge Robert C. Chambers today gave the Obama administration another week to decide what it’s going to do about the largest mountaintop removal mine in West Virginia history. […]

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