Coal Tattoo

Obama seeks to block record mountaintop removal permit

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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 …