Breaking news: EPA issues ‘proposed determination’ to block Clean Water Act permit for the largest mountaintop removal mine in W.Va. history

March 26, 2010 by Ken Ward Jr.


The U.S. Environmental Protection Agency just issued its “proposed determination” to block the Clean Water Act permit for the Spruce No. 1 Mine in Logan County, the largest mountaintop removal permit in West Virginia history.

EPA has posed this proposed determination document on its Region 3 Web site, along with a Technical Support document and other materials about the Spruce Mine.

According to EPA:

EPA has reason to believe that the Spruce No. 1 Mine, as currently authorized, could result in unacceptable adverse effects to fish and wildlife resources.

EPA is concerned that the project could result in unacceptable adverse effects on the aquatic ecosystem, particularly to fish and wildlife resources and water quality. EPA is also concerned that the project may have cumulative adverse impacts. EPA believes that the Spruce No. 1 project, in conjunction with numerous other mining operations either under construction or proposed for the Coal River sub-basin, may contribute to the cumulative loss of water quality, aquatic and forest resources. The Coal River sub-basin is already heavily mined and demonstrates impacts associated with surface coal mining.

There’s also a press release available that includes comments from Region 3 Administrator Shawn Garvin:

Coal, and coal mining, is part of our nation’s energy future, and for that reason EPA has made repeated efforts to foster dialogue and find a responsible path forward. But we must prevent the significant and irreversible damage that comes from mining pollution — and the damage from this project would be irreversible. This recommendation is consistent with our broader Clean Water Act efforts in Central Appalachia. EPA has a duty under the law to protect water quality and safeguard the people who rely on these waters for drinking, fishing and swimming.

As I explained in an earlier post, this EPA notice starts another long process of review and debate — including a mandatory public hearing if EPA finds a significant degree of public interest — before EPA would actually veto the permit.


Arch Coal just issued the following statement —

After various efforts over the past few months to address EPA’s concerns with the Spruce permit, Arch Coal is disappointed that EPA has chosen to take the unprecedented action to initiate the veto process under Section 404(c) of the Clean Water Act against a validly issued and existing permit.  The Spruce permit is the most scrutinized and fully considered permit in West Virginia’s history.  The 13-year permitting process included the preparation of a full environmental impact statement, the only permit in the eastern coal fields to ever undergo such review.  We are evaluating all possible options for relief from the government’s actions and intend to vigorously defend the Spruce permit by all legal means.  Further, we intend to oppose the government’s efforts to extend the stay in Judge Chambers’ court with respect to our pending motion for summary judgment.

Updated 2:

Department of Justice lawyers have filed papers asking U.S. District Judge Robert C. Chambers to stay legal proceedings — in a case where environmental groups challenged the Corps’ approval of the Spruce Mine — pending completion of EPA’s possible veto action.

24 Responses to “Breaking news: EPA issues ‘proposed determination’ to block Clean Water Act permit for the largest mountaintop removal mine in W.Va. history”

  1. Ken Ward Jr. says:

    Reactions are starting to roll in … here’s one from Congresswoman Shelley Moore Capito:
    “Today’s announcement by the EPA to begin the veto process for the Spruce Mine permit confirms what many have long suspected: the Agency has no regard for the economic hardship created by their policies, or for the judgment and authority of the state and federal agencies involved.

    “I am extremely disheartened by the Administration’s unprecedented decision to revoke this highly reviewed permit. For nearly a decade, the Army Corps of Engineers—with the EPA’s input—rigorously reviewed the environmental impact of expanding the Spruce Mine before lawfully issuing the permit. What’s to stop the EPA from going after more permits that have already been issued and are fully operational? This action disregards the expertise of both the West Virginia Department of Environmental Protection (DEP) and the Corps, and puts all of West Virginia miners at risk of losing their jobs.

    “These are not abstract consequences in some far away land; these are our friends and neighbors who are losing their jobs for no other reason than because a faceless bureaucracy says so. The EPA should let our people work.

    “As the veto process advances, it is my hope that the EPA reevaluates their position on the Spruce Mine and honors their original permit commitment. It is imperative that West Virginia mining families have security in this difficult economic time.”

  2. Austin Hall says:

    My wholehearted thanks to the EPA for relying on sound science to protect the HUMAN and environmental health of Southern West Virginia.


  3. Ken Ward Jr. says:

    Here’s a release from the Sierra Club:

    “It is good to see the EPA applying more scientifically rigorous analysis to these permits. The best available science tells us that proposed mines like the massive Spruce Mine would pollute waterways, destroy mountains and devastate communities.

    “We hope that the agency follows through on this recommendation. This massive mine would bury seven miles of streams, destroy thousands of acres of land and disrupt local communities. Mountaintop removal coal mining is an egregious environmental injustice and an embarrassment for America.

    “Local residents have been actively challenging the approval of this permit at the Spruce No. 1 Mine in Logan County for more than twelve years. With the 40th anniversary of Earth Day approaching, it’s time for the Obama administration to fix the Bush administration rulemaking that allows mines to fill waterways with waste.”

  4. Bill Howley says:

    Now no one can complain about “regulatory uncertainty.”

  5. Ken Ward Jr. says:

    Here’s a statement issued by WV congressman Nick Rahall:

    “This is an unprecedented, unjustified and undeserved decision and I completely disagree with it as I told EPA Administrator Lisa Jackson directly. The owners of the Spruce Mine worked in good faith over the course of many years with State and Federal permitting agencies, including the EPA, and the permit was issued after the conclusion of a full environmental impact statement. To come back now and pull the rug out from under this mining operation is unconscionable.”

  6. Ken Ward Jr. says:

    Here’s a statement from Sen. Rockefeller:
    “I have said this before, and will say it again: it is wrong and unfair for the EPA to change the rules for a permit that is already active.
    “The Spruce Number 1 Mine has made good faith efforts to comply with all applicable laws and regulations, and I believe the EPA should honor their commitment in return. I will continue to push EPA officials until we can find a workable, long-term solution.”

  7. Pat Moore says:

    Congratulations to the citizens of West Virginia, who will not be subject to yet
    one more huge project which will devastate the health and well-being of these
    beautiful mountain communities.

    To the politicians and coal companies: If these projects are so great, why is your state still so poor after many years of coal mining. And why are the citizens suffering so many health consequences if it is so safe?

    This should not be about profits for coal companies or contributions to politicians, but about the health and well-being of these communities.

  8. Jason says:

    The EPA is simply doing its job. All the reactions from the members of Congress seem to push economic impact and ignore the impacts for which the EPA is charged with mitigating. I get the impression that Rockefeller & Rahall (and possibly Capito) realized this was inevitable based on the scope of the project and the destruction it will cause. Their adherence to “good faith efforts” and retroactive action as the basis to criticize the decision is very telling. They don’t even touch the social and environmental consequences.

  9. Ken Ward Jr. says:

    Here’s how to comment to EPA:

    Submit your comments, identified by Docket ID No. EPA-R03-OW-2009-0985, by one of the following methods:

    — Federal eRulemaking portal at

    — email to include the docket number in the subject line of the message

    — Mail to: No. EPA-R03-OW-2009-0985, Spruce No. 1 Surface Mine, U.S. Environmental Protection Agency, EPA Docket Center, Mail Code 28221T, 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460.


  10. Ken Ward Jr. says:


    Just to remind you … no cursing and no name-calling is allowed in comments on Coal Tattoo … if you do that, your comment will be removed.

    If folks can’t control themselves, I will shut down the comments feature on this post.


  11. Ken Ward Jr. says:

    Here’s a statement just issued by Sen. Robert C. Byrd:

    “The announcement by the EPA today of its Proposed Determination to exercise its veto authority over the Spruce #1 Mine permit begins a process that enables the company and the public to comment on the matter in writing and at public hearings. I would strongly encourage all parties to seek a balanced, fair, reasonable compromise.”

    “EPA Administrator Jackson reiterated to me that more wide-ranging guidance is forthcoming in the near future, providing clarity relating to water quality issues and mining permits. I encouraged her to move forward as soon as possible so those seeking approval of permits can fully understand the parameters for acceptable activity under the Clean Water Act.”

  12. Ken Ward Jr. says:

    And here’s a statement from Gov. Joe Manchin:

    EPA Administrator Lisa Jackson this morning informed me of the EPA’s proposed veto of the Spruce No. 1 mine permit. I have also spoken with Steve Leer, CEO of Arch Coal, about the impact of this decision.

    “I am obviously very disappointed, because, the way it stands now, it means a major loss of potential jobs.

    “However, it is my understanding that the door is not completely closed on this process and Hobet will now need to look at its options on moving forward with continued discussions.

    “I am still hopeful that something can be worked out. As governor, I will continue to do everything in my power to protect and create jobs for West Virginians.

    “Coal is essential to our state’s economy and to our nation’s energy future, so we must continue to find the balance between our environment and the jobs that this reliable and affordable source of energy creates.”

  13. blue canary says:

    After seeing the violence that’s occurred after the health care bill was passed, I can’t help but be worried for the safety of my friends in the coalfields. Let’s hope the backlash on this stays civil, and that those in positions of authority don’t fan the flames. The EPA is simply (finally!) doing its job to protect the environment and the health of US citizens.

  14. Nankrow says:

    “Has Reason to Believe” is kind of a loose term to be throwing out after 13 years of approved permitting. Lets see “Could Possibility”, “It Might”, “I’ll Go With”
    As Far as Sen. Byrd , Sen. Rockefeller and Rep. Rahall they voted in favor of the Clean Water Act. Now they are surprised.

  15. Bob Kincaid says:

    Ken, I think the most telling statement is Manchin’s.

    He cites “a major loss of POTENTIAL jobs.” In other words, despite all the braying and posturing from the politicans and their bosses, no jobs will be lost by denying the Spruce Mine permit.

    We all know that MTR requires many fewer jobs than underground mining in the first place. Instead of continuing to cry, let’s see the coal companies get back to honorable mining underground, where there’s potential for more jobs than the Spruce site would ever create.

  16. Ken Ward Jr. says:


    Actually, the mine is operating already on a very limited basis, under a “stand-still” agreement with the plaintiffs before Judge Chambers.

    The number of workers this year has varied from 15 to 39 depending on which quarter you’re looking at.

    So, it’s not just about potential jobs, though the numbers aren’t very high.


  17. Jason Robinson says:

    Nankrow there has been a slew of recent scientific investigation that directly relates to this issue.

    for example

    Greg Pond 2010 Patterns of Ephemeroptera taxa loss in Appalachian headwater streams (Kentucky, USA) Hydrobiologia 641(1) 185-201.

    The upshot is surface mining effects include, like what we already know, destroying water quality and instream habitat as measured by the narrative standards of most states including KY and WV.

    Further, these effects are statistically distinguishable from residential/urbanization effects in terms of both stream habitat and macroinvertebrate assemblage. Narrative water quality standards protect both habitat and assemblages. When the WVDEP secretary said “we don’t know how to enforce the narrative standard” he very well could have been serious. I take him at his word, for the rivers of incompetence and deceit are about the only thing left flowing pure and pristine from some of the mountains of rhetoric dumped by the industry.

    But whether agencies are capable or willing of enforcing narrative water quality standards* it ‘s clear that surface mining violates them.

    * of course we have long known that most of these activities also violate numeric standards. but one chief complaint by some commentors here (Gene Kitts, for example) is that the link between numeric and narrative standards is tenuous and arbitrary. Of course, that is not true except to the extent that we don’t know everything there is to know about Appalachian lotic ecosystems. But that flimsy objection is clearly demolished by this study, the Pond et al JNABS study last year, and the many references they have cited within those papers that all link conductivity and ionic strength to biological impairment.

  18. Andygump says:

    EPA means Environmental Protection Agency. They are doing their job protecting the environment. Let’s support their efforts to stop the destruction of West Virginia and it’s water. When miners talk they are concerned about money. When Coal companies talk they are concerned about money. When politicians talk they are concerned about money. What happened to the rights of human beings to peacefully enjoy their homes without being afraid to drink the water and breathe the air. Let’s all enjoy the quiet beauty of a proud million year old mountain. My soul bleeds when another shot goes off. Thank goodness for an administration that cares for us and not just how many millionaires they can create. Thanks for helping to flatten W Va G.W.B.!

  19. Scott14 says:

    The easiest way to reverse this decision is at the polls in november 2012. Vote these libs out and you will see the coal field economy rebound once again. Its a sad day for surface miners. One more enemy against your job. While WV elected officials are on our side. Obama and his crew have to go in 2012. Vote Republician!!!

  20. Dell Spade says:

    Did anyone believe that EPA would do otherwise? It was a setup from the day they got involved. All the work and years of study on this permit were simply ignored.

  21. Jason Robinson says:

    Scott, why do you say “these libs”? A peek at the long history of this permit should make it obvious that simplistic analyses like that don’t explain the problems getting the mine approved. If it were just “libs” then that wouldn’t explain the bush administration’s reticence to approve the permit, unless you are including GWB et al as “libs”. Are you seriously advocating that the environmental laws should be ignored? Turning a blind eye doesn’t change the fact that surface mining has inevitable environmental effects that are violations of several laws.

  22. Brad says:

    I congratulate the EPA for showing integrity to the science. The agency is doing what is right, not what is politically expedient.

    I was going to vote third-party. But now I am definately voting for Obama.

  23. Mammaw says:

    The EPA is charged with protecting the environment, not every facet of the economy. I don’t know why people can’t seem to get that straight. I am delighted they are doing their job!

  24. Ken Ward Jr. says:

    OK, folks …

    Thanks to everyone for their comments.

    I’m going to be out of pocket and not available for blogging for a bit this weekend, and not able to keep some of the nasty stuff off Coal Tattoo. So I’m shutting comments off on this one until Monday AM.

    Have a good weekend, and enjoy the basketball.