Coal Tattoo

The success of our environmental efforts depends on earning and maintaining the trust of the public we serve. The American people will not trust us to protect their health or their environment if they do not trust us to be transparent and inclusive in our decision-making. To earn this trust, we must conduct business with the public openly and fairly.

— EPA Administrator Lisa P. Jackson, April 23, 2009

Anyone who follows Coal Tattoo, especially the comments section, knows there’s quite a lot of mistrust out there among coal industry supporters of the U.S. Environmental Protection Agency and the Obama administration. Not everyone in the environmental community exactly trusts EPA, either. They think the agency hasn’t done nearly enough about mountaintop removal.

EPA officials read this blog, and they know this as well.

So it’s hard to understand what they think they’re accomplishing by not releasing to the public a copy of EPA Region 3 Administrator Shawn Garvin’s “recommended determination” about the Clean Water Act permit for the Spruce Mine. EPA is claiming the document is part of its “internal and deliberative process” and therefore not something the public has a right to see.

How does withholding this document help EPA to earn the trust of those in the coal industry who believe the agency has a hidden agenda to destroy all coal mining? How does keeping it secret maintain the trust of those in the environmental community who believe EPA has not gone nearly far enough in trying to reduce the impacts of mountaintop removal?

How is this document any more protected from public disclosure under the federal FOIA than any of the previous documents that EPA has made public in this permit review, especially a “proposed determination” that was hardly a final agency decision?

I’ve filed my own FOIA request for a copy of the recommended determination, and EPA handled it the way the Bush administration EPA used to handle such things — they fired back a letter saying I hadn’t made enough of a showing of an “urgent to inform the public about actual or alleged government activity” to merit expedited processing of my request. This is a standard slow-down tactic that agency officials use to stonewall FOIA requests … it’s the sort of thing President Obama said he would stop agencies from doing.

Earlier today, lawyers for EPA and for Arch Coal’s Mingo Logan subsidiary filed papers to update U.S. District Judge Robert C. Chambers on the Spruce Mine permit review. Recall that Judge Chambers has granted a stay of litigation over the permit through Oct. 22, while EPA sorts out what action it plans to take regarding the initial permit approval by the federal Army Corps of Engineers.

In their filing, EPA lawyers noted that under federal regulations, the Corps and Arch Coal could still take advantage of the opportunity for “consultation” and “corrective action” that would convince EPA to approve the permit.

That seems unlikely at this point, so that would leave it to EPA to issue a final determination on the permit by Nov. 24, the day before Thanksgiving, though the regulations also allow EPA to extend its decision for another 60 days beyond that. The point for Judge Chambers was that it’s almost certain that EPA will seek another extension of the judge’s stay beyond Oct. 22.

Arch Coal lawyers told the judge that the company would oppose such an extension, and at the least believes Judge Chambers should force EPA to release to the company a copy of the agency’s preliminary determination.

Stay tuned …