Waiting on EPA … decision on Spruce Mine?

September 24, 2010 by Ken Ward Jr.

Today’s supposed to be the deadline for the U.S. Environmental Protection Agency’s regional administrator, Shawn Garvin, to make a recommendation to EPA Administrator Lisa P. Jackson about the permit for Arch Coal Inc.’s Spruce Mine.

EPA has delayed that recommendation deadline once, and it sounds like the agency — while Garvin may have made a recommendation — isn’t going to be telling the public what that recommendation was, at least for a while.

Recall, of course, that the Obama administration’s EPA has been seeking to invoke its Clean Water Act authority to veto a permit issued by the U.S. Army Corps of Engineers for the Spruce Mine (see previous posts here, here and here).

I’ve not heard back from EPA officials about what they plan to do — or not do — today. But the Wall Street Journal and West Virginia Media seem to believe that EPA plans no public statements today about the regional administrator’s recommendation. And The Associated Press is reporting:

The EPA’s Region 3 administrator was to send a recommendation about Arch Coal’s Spruce No. 1 mine to headquarters in Washington, D.C., Friday, but an agency spokeswoman won’t say what it is. She says it’s part of the internal review process.

UPDATED: EPA officials issued this statement this afternoon:

EPA won’t be releasing the Region 3 recommendation since it is not a final decision on this matter and it is part of the internal and deliberative process.

Now, I’m not sure that EPA’s regulations specifically require the agency to make this recommended determination from the regional administrator public … But I do know that Administrator Jackson has promised  “increased transparency” in its mining permit reviews, and it’s not clear how not making this recommended determination public right away meets that commitment.

9 Responses to “Waiting on EPA … decision on Spruce Mine?”

  1. Rosie says:

    Don’t these people understand they are playing with people’s livelyhoods here?

  2. rhmooney3 says:

    This administration chats about openness:

    What has resulted is not it.

    In fairness, this entails ongoing ligitation.

    I’ll stay toned down, but we are the ones paying to be kept in the dark.

  3. Ken Ward Jr. says:


    I don’t believe the federal FOIA would shield this document because of any ongoing litigation … the EPA regs do say that this document is to be made part of the administrative record, which seems to me to be a public document.

    I’ve filed an FOIA for this, so I guess we’ll find out if Administrator Jackson really does believe in transparency.


  4. Shelby says:

    Spruce Fork has already been polluted from the the old diggings of Arch mine The creek water is in bad shape, What is needed is for Pigeon Roost branch, and Old House branch to not be disturbed by any new mining. Both streams are in good condition. This will help purify the main stream. This is one reason why it has taken so long for a decision from EPA.

  5. rhmooney3 says:


    Thank you for always digging deeper than most.

    If the attorneys were involved in the preparation of the recommendations, it will be classified as attorney-client privilaged — as you know.

    My money would be on it not being released, but you are among the best at getting such things so I would not wager much against you succeeding.


  6. Ken Ward Jr. says:


    Actually, I don’t agree with that assessment, either. The mere involvement of attorneys in preparation of a document does not give it protection as attorney-client privileged material … Ken.

  7. Lisa says:


    Has there been any news on this? I can’t find any new information. Are they waiting until after elections to announce their decision? I’ve read something about this fall. What have they been doing since June? And April? and all the other postponements.

  8. Ken Ward Jr. says:


    EPA has so far not released the regional administrator’s recommended determination … I’ve filed a Freedom of Information Act to get a copy.

    Remember that this is just the regional administrator’s “recommended determination” to EPA Administrator Lisa P. Jackson … the recommendation has been sent to Jackson, but not shared with the public. I believe the regulations give Jackson 60 days to make a decision.


  9. Rosie says:

    Thanks for all your hard work Ken. Let’s hope they let the people who this affects know something soon. Constantly being in limbo isn’t good for either side and in this economy we need to get people back to work as soon as possible and the property values in Blair are non-existant without the presence of the mines.

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