Coal Tattoo

Jay to EPA: Let the Spruce Mine permit go

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No word yet today from EPA on its “initial list” of mountaintop removal permits it wants to more closely review (the list was due to be made public Tuesday) … but the politicians continue to weigh in on coal’s side in the Obama administration’s effort to block the largest strip-mining permit in West Virginia history.

A little while ago, U.S. Sen. Jay Rockefeller, D-W.Va., joined West Virginia Gov. Joe Manchin  in blasting the Obama EPA for urging the federal Army Corps of Engineers to revoke the nearly 2,300-acre permit to mine in Pigeonroost Hollow near Blair in Logan County, W.Va.

In his two-page letter  to EPA Administrator Lisa Jackson, Rockefeller expressed “grave concern” about the agency’s move:

Such an action not only affects this specific permit, but would also needlessly create great uncertainty surrounding other currently operational permits.

Rockefeller took the unusual action — for a member of the Senate — of encouraging a specific action by a regulatory agency on a specific matter pending before that agency (and also pending before a federal judge), telling Jackson that EPA should “retract” the agency’s Sept. 3 letter to the Corps and “to remove any further impediments to this mining operation.  In a handwritten note at the end of the letter, Rockefeller said:

Obviously, I feel more than strongly about this matter. It needs to be corrected.

Rockefeller noted that the Corps reviewed the Spruce Mine proposal for nearly a decade before it was approved in January 2007, and that this was the only mountaintop removal mine for which the agency ever completed a full Environmental Impact Statement, or EIS:

In fact, the satisfy the environmental concerns raised by the EPA at the time, the permit was substantially scaled back. As approved, the final permit reduced the acreage of the permit by 835 acres or 27 percent and excess spoil by 150 million cubic yards, a 57 percent decrease.

These dramatic reductions in environmental impact were noted specifically by the EPA before the final permit was issued. All parties involved, including the EPA and the Corps, highlighted this process as a model for future efforts.

Rockefeller appears to be the only member of the West Virginia congressional delegation — so far — to have stepped forward to defend the Spruce Mine (which, interestingly, was moved at some point from Arch Coal’s unionized Hobet subsidiary to the company’s non-union arm, Mingo Logan Coal). No word on any action regarding this permit by Rep. Nick J. Rahall, who has been closely watching EPA’s actions on mountaintop removal. And nothing from Sen. Robert C. Byrd, whose office has said nothing about any results of a staff fact-finding mission to the coalfields back in June.

Updated, 1 p.m. Sept. 11:

This statement just in from EPA spokeswoman Adora Andy:

“We take the senator’s concerns seriously but believe that this mine raises unique and serious issues that deserve further consideration by the Army Corps of Engineers, the permitting agency, as our letter to the corps explains.”

Rockefeller’s letter continued:

I strongly support careful environmental review of all mining permits, but just as strongly believe it is more than inappropriate to revoke a permit that was rigorously reviewed, lawfully issued, and has been active for two years.

When businesses make good faith efforts and fully comply with all applicable laws and regulations, they must have the confidence that the commitments made by the government will be honored.

To revisit these issues long after the fact calls into question EPA’s commitment to negotiations and agreements.

On this issue of the permit being “lawfully issued,” it’s important to note that whether or not the Spruce Mine permit was “lawfully issued” has yet to be resolved … Just a few days after the Corps issued the permit, environmental group lawyers rushed into U.S. District Judge Robert C. Chambers courtroom seeking a temporary restraining order to block the mine.

As we know, the ruling by Chambers blocking four other mining permits (not the Spruce Mine) was overturned by the 4th U.S. Circuit Court of Appeals.  Arch Coal lawyers cited this 4th Circuit ruling in seeking to have Chambers throw out the legal challenge to the Spruce Mine.

But the Spruce Mine, and the legal challenge to it, appear quite different from the mines Chambers and the 4th Circuit already considered. For one thing, there’s the matter of the EIS.  Environmental group lawyers want a chance to show Chambers why they think the Spruce Mine EIS was inadequate, and did not properly examine the mine’s potential environmental effects.  And there’s the matter of the new EPA objection letter, which spells “new information and circumstances” since the permit approval in January 2007 and “recent data and analysis” about the impact of mountaintop removal mines.

Allegations that the Spruce Mine is illegal haven’t been resolved by any court. They’re still pending before Judge Chambers.The legal challenge to it was filed while Chambers was hearing a larger mountaintop removal case, and Arch Coal agreed to restrict its operations to avoid a court battle until that larger case was resolved.

Now, the company argues it “has deployed millions of dollars in capital and put dozens of persons to work, but must soon develop more fill capacity or cease operation.” The Corps asked Chambers for 30 days to review the EPA letter; Arch Coal opposes that request. The judge has yet to rule.

Is Rockefeller essentially throwing himself into the middle of a pending federal court case? Well, in his letter, the senator addressed that issue this way:

The fact that the Spruce Mine is the subject of litigation by private parties in no way alters the status or validity of the government’s permit, in this or any other permitting matter.

There’s another line in Rockefeller’s letter to EPA that says:

I am a long-time supporter of surface mining operations when done in accordance with the law. Surface mining is vital to the economy of southern West Virginia and our nation’s electricity needs and it certainly can be carried out in a way that addresses environmental impacts.

Things sure have changed since 1972, when Rockefeller said this in his losing bid for governor of West Virginia:

We know that strip mining is tearing up the beauty of our state. We know that strip mining is not a good economic future for West Virginia and not a good economic future for our children. And we know that, whatever advantage it has now, the damage that it leaves is a permanent damage.