The Daily Mail’s got the big screaming headline this morning: Officials fear huge mine may be nixed.
Indeed, today is yet another deadline in U.S. District Court in Huntington in the case of the Spruce Mine, the largest mountaintop removal mining permit in West Virginia history. And most everybody I’ve talked to says the same thing my buddy Ry Rivard’s sources tell him: That whatever EPA files in federal court or otherwise publicly announces will not be good news for Arch Coal Inc. and its supporters.
But believe it or not, despite more than a decade of debate over this particular mountaintop removal permit, whatever EPA decides today will still only be the beginning of a long process of deciding if EPA will block the Spruce Mine.
The Clean Water Act gives EPA extraordinary authority to veto permitting decisions made by the federal Army Corps of Engineers. And given that extraordinary authority, the law and its implementing regulations also set out a detailed — and time-consuming — process that EPA officials must follow to do so.
So just to review, where are we in that process?
Last October, EPA regional officials notified the Corps of Engineers under the regulations that they intended to issue a public notice of a proposed determination to “restrict or prohibit the discharge of dredged and/or fill material” (that means veto the permit) by the Spruce Mine. In doing so, EPA cited its “very serious concerns regarding the scale and extent of significant environmental and water quality impacts” associated with the mining proposal.
Since then, EPA has been — depending on who you believe — trying to work with Arch Coal to get the company to reduce the mine’s potential impacts or really not talking to the company at all and just delaying and delaying this major decision. And of course, as shown again in today’s Daily Mail story, coal industry officials and their political friends have been making much of this permit and the continued delays by EPA. In that regard, politically at least, EPA has played right into the industry’s hands.
The next step in the process, if EPA moves forward to try to veto the permit, is for that agency to publish this public notice — a move that must would almost certainly include announcement of a public hearing on the proposed EPA veto and of a 30- to 60-day public comment period.
After that, EPA regional officials must prepare a “recommended determination” of their decision to veto the permit, or withdraw its initial veto proposal. If a recommended determination is prepared, it is forwarded to the EPA Assistant Administrator for Water in Washington, D.C.
Then, EPA contacts the Corps and the company and gives them another 15 days to fix the permit in a manner that would prevent “unacceptable adverse effects.”
Finally, a final determination is then made by the EPA Assistant Administrator. This is supposed to be done within 60 days of receipt of the recommended decision from the regional office.
The bottom line point I’m trying to make is this issue is far, far from over. There’s going to be plenty of time for industry and environmental groups — and all of the politicians — to be heard about this matter.
Take a look at the list of previous EPA permit veto actions and the chronology of those actions. From initiation (such as the EPA October letter on the Spruce Mine) to final determination, these veto actions have taken anywhere from six months to more than a year and a half. On average, they take about 10 months.
But it’s also interesting to compare how long it typically has taken EPA from the time of that initial veto threat letter to take the next formal step in the process, publication of the public notice. The average has been about three months. On the Spruce Mine? EPA has already taken more than five months, and they haven’t published the public notice yet. So … who knows how long this process is going to take.
And look at that issue of how long EPA has waited to publish its public notice another way — that’s five months that the Obama administration has given Arch Coal to come up with ways to further reduce its impacts to a point where EPA would — as it did with the Hobet 45 permit — allow mining to move forward. So, we’re coming up on EPA giving Arch Coal nearly twice as long as it typically gives companies in similar situations in other industries to try to fix a problem permit before it moves forward with a veto.
Finally, another very important point that you probably won’t read in any other West Virginia media outlet but the Gazette and Coal Tattoo … EPA’s concerns about the Spruce Mine are hardly new. The agency has consistently questioned the potential impacts, even after the company reduced the size of the operation as part of the January 2007 permit approved by the Corps.
Even the Bush administration, in its formal comment letter on that permit, ranked the proposal as “EC-2”, or “Environmental Concerns and Insufficient Information.” While EPA praised the company and the Corps for reducing the mine’s impacts, the Bush EPA said the permit still did not contain adequate mitigation for water-quality damage, sufficient study of cumulative impacts or a detailed review of potential environmental justice effects of the operation. According to then-EPA regional administrator Donald Welsh:
We have remaining environmental concerns based on the uncertainty of the mitigation proposals and as yet incomplete cumulative impact assessment and management plans for the Little Coal River watershed.