Breaking news: EPA regional administrator recommends historic veto of Spruce Mine permit

October 15, 2010 by Ken Ward Jr.

This just in: The U.S. Environmental Protection Agency’s regional administrator, Shawn Garvin, has recommended that his agency veto the Clean Water Act permit for the controversial Spruce No. 1 Mine in Logan County, W.Va.

EPA has posted a copy of Garvin’s recommendation here, and there are some companion documents online here. The recommendation concludes:

… Region III has determined that discharges of dredged and/or fill material to Pigeonroost Branch and Oldhouse Branch for the purpose of constructing the Spruce No. 1 Surface Mine as currently authorized … would likely have unacceptable adverse effects on wildlife … [the permit] authorizes construction of valley fills and sedimentation ponds and other discharges into Pigeonroost Branch and Oldhouse Branch that will bury approximately 6.6 miles of high quality headwater streams.

… Burial of Pigeonroost Branch and Oldhouse Branch would likely result in effects to downstream waters and downstream wildlife caused by the removal of functions performed by the buried resources and by transformation of the buried areas into sources that contribute contaminants to downstream waters. In addition, currently authorized discharges to Pigeonroost Branch and Oldhouse Branch would be likely to contribute to conditions that would support blooms of algae that release toxins that kill fish and other aquatic life …

The regional EPA administrator also concluded:

… Because construction of the Spruce No. 1 Mine and 11 additional mining operations would increase the percent of the sub-basin that is impacted by mining activity, it can be expected that these water quality effects will likely be exacerbated by these additional mines. EPA believes that the Spruce No. 1 Mine project, in conjunction with the other mining operations either under construction or proposed for the Coal River sub-basin, will be likely to contribute to the significant cumulative loss of aquatic resources and degradation of water quality.

In a prepared statement just issued, EPA said:

After an initial review by EPA’s Office of Water at Headquarters, the Agency is releasing the recommendations made by EPA Region 3 Regional Administrator regarding his Clean Water Act review of the proposed Spruce coal mine in West Virginia. It is important to emphasize that this is only one step in the process—EPA has not reached a final decision on this project. EPA’s next step will be to reach out to the mining company, the U.S. Army Corps of Engineers, and West Virginia State officials to engage in discussions about potential actions that can be taken to reduce impacts to the environment and to the waters that Appalachian communities depend on for drinking, swimming and fishing. EPA determined that releasing the Recommended Determination now would ensure that our consultation process is as constructive and productive as possible. Following these discussions, EPA’s Office of Water will issue a final decision after a thorough review of the Regional Administrator’s recommendation, the science, the 50,000 public comments received and careful consideration of our discussions with the State, Corps and Company. EPA is expected to make a final determination later this Fall.

EPA released Garvin’s recommended decision publicly and filed a copy of it in federal court in Huntington, asking U.S. District Judge Robert C. Chambers to extend for another 120 days — until Feb. 22 — the judge’s order suspending litigation over the Army Corps of Engineers-issued permit until EPA can complete its review and potential veto of the operation.

Recall that EPA had initially refused to release Garvin’s recommendation, claiming that it was an internal document. Judge Chambers apparently didn’t buy that. But the judge gave EPA until last Friday to file a legal brief explaining its position — an offer that EPA lawyers apparently declined.

This is just another step in the process of EPA’s trying to either block this permit or perhaps push the company to find a way to further reduce its potential impacts, as was done with the Hobet 45 Mine and the Pine Creek Mine, both in West Virginia.

For more background in the Spruce Mine, be sure to check out previous posts here, here, here and here.


17 Responses to “Breaking news: EPA regional administrator recommends historic veto of Spruce Mine permit”

  1. Amanda Starbuck says:

    “Well done” to EPA regional administrator Garvin, and I hope the EPA heeds his recommendations and moves quickly ahead to veto the disastrous Spruce No. 1 mine.

    The science is clear that mountaintop removal is harming water resources in real and measurable ways. I hope the EPA is going to use its full authority under the Clean Water Act to protect Appalachia’s drinking water and resist the enormous pressure coming from the coal industry.

  2. Monty says:

    *glances at the calendar* Make no mistake about it, the timing of this release was Political with a capitol P. The EPA knows that things may/probably will change after the Nov. 2 elections – hence the carefully-worded statement where it says it will “reach out to” the coal company.

    Even keeping in mind that this is just another step in the overall approval or disapproval of the permit, it is still a huge and potentially history-altering step in West Virginia, where for decades “environmental permitting” meant the coal companies got everything they wanted, pretty much regardless of the consequences to the land or the people.

  3. Rosie says:

    Way to keep people from going to work, way to keep property values at nil. Have these people even been to Blair? Coal is the only thing worth wild there and they have taken that away.

  4. Casey says:

    Amanda, maybe I’ve overlooked something but what studies have shown that surface mines, or even the one proposed, threaten drinking water from streams?

    Monty, I’m not sure that you are correct in stating that coal companies have gotten everything that they wanted. It seems to me that regulations and permitting requirements have gotten more and more onerous over the years and I’m sure that this has not been at the coal company’s requests.

  5. Brad says:

    Rosie,

    Unless you are a coal or land company, mountaintop removal permits DRASTICALLY reduce the value of your property.

    This is a great first step to ensure that Southern WV is not completely transformed into a toxic wasteland.

    For once, let me tip my hat to the Obama Administration.

  6. Brenda says:

    Thank goodness there are those out there to protect our precious environment as the coal miners within the state can’t see beyond their next pay check. Keep the mining companies in check and make sure they respect our mountains, streams, rivers and heritage. Kudos!

  7. Ken Ward Jr. says:

    Casey,

    I’m not sure if you’ve read the EPA regional administrator’s recommended decision, but I’d point you to page 74, where EPA says it needs more information about potential impacts on drinking water resources:

    “Information concerning sources of drinking water for the effected populations (including municipal water supplies and private sources of drinking water including streams and/or wells) also should be considered.”

    In addition, you might look at Chapter 3 of the Draft Programmatic Environmental Impact Statement on Mountaintop Mining/Valley Fills available here, http://www.epa.gov/region3/mtntop/pdf/III_affected-envt-consequences.pdf and do a word search for “drinking” and you’ll see several references.

    You might also give the entire portion of EPA’s report on the Spruce Mine regarding environmental justice a look, staring on page 73.

    Ken.

  8. Steven says:

    Does this mean that the other permits and operations will undergo the same review as Spruce since they are in the same watershed? If they are citing cumulative effects I would hope that they would but so far this is the only operation really discussed. Would this permit be contested if it was broken into several pieces???

  9. Monty says:

    Steven – I am NOT an expert, by any means, but, under the “cumulative imact” criteria of the Clean Water Act, as it was written and as EPA is finally and belatedly applying it, it wouldn’t matter if it was one big permit or a bunch of small ones. In fact, the impacts of a number of smaller permits might even be higher on the watershed than one much larger permit, but I’m not a numbers cruncher or a scientist. Just my 2 cents.

  10. Ken Ward Jr. says:

    Steven, Monty, all —

    We had the comments section on this post closed down over the weekend, because of some comments from folks who don’t seem to be able to have a reasonable discussion with people they disagree with … but to the issue of breaking this permit into several pieces:

    In the original Spruce Mine case, back in 1998-99, I believe that one of the legal claims against the mine at that point had to do with what environmental group lawyers called “illegal segmentation” of the mine. Generally, under the law, as I understand it, you can’t break a project into smaller pieces to avoid doing an Environmental Impact Statement under NEPA. Obviously in this case, an EIS has been done — but, of course, some of the claims against the Spruce Mine in the litigation pending before Judge Chambers have to do with the adequacy of that EIS. Those claims have yet to be heard — despite all of the talk from politicians about how this mine passed muster, the legal claims of environmental groups over the January 2007 permit have not been heard by a court yet.

    In addition, this questions of segmenting mines is certain to come up again. Part of EPA’s strategy to permit some mines is to require companies to do one valley fill at a time, testing water quality as they go to see what the impacts are — environmental groups are not especially happy about this, and it’s likely at some point the legality of this might be challenged. Stay tuned…Ken.

  11. Amanda Starbuck says:

    Casey, My main point is that “The science is clear that mountaintop removal is harming water resources in real and measurable ways.”

    In the case of Spruce mine, a RAN-commissioned report by Downstream strategies finds that:

    “water samples from Spruce Fork show that average conductivity in the mainstem of Spruce Fork is as much as ten times the natural levels expressed in unimpacted streams such as Oldhouse Branch, and that the average conductivity at almost every monitoring site exceeded 500 µS/cm. However, conductivity values for several streams draining the proposed Spruce No. 1 mine site currently indicate excellent water quality, and that “discharges from valley fills into Pigeonroost Branch and Oldhouse Branch would both remove sources of freshwater dilution to Spruce Fork and create new sources of TDS and conductivity” (USEPA, 2010a, p. 34).”

    My concern about drinking water is due to my understanding that the “Waterways in Appalachia aren’t just home to some of the most rare and biodiverse aquatic life communities in the world—they also supply drinking water to thousands of people.” (QuotingUpper Watauga Riverkeeper)

  12. Ken Ward Jr. says:

    Amanda,

    Could you provide a link to the Downstream Strategies report you mention? Does it specify any data that suggests the Spruce Mine is a threat to drinking water supplies and, if so, to which drinking water supplies?

    It would also be helpful to have a link to specifically what document by the Upper Watauga Riverkeeper you’re quoting from, so that others know what you’re talking about.

    I think Casey believed you were making some direct connection between this permit and damage to drinking water supplies, so it would be helpful if you would clarify whether you have evidence that supports such a claim.

    Thanks, Ken.

  13. Monty says:

    I’m going from memory here – environmental law classes were a longgggg time ago – but under NEPA and CWA, in general, the concept and standard of “cumulative impact” is intended to mean the completed project as a whole; the intent of which was to stop industry from dividing up one large project into many smaller ones as a way to get under the thresholds that would trigger an Environmental Impact Statement or other, more stringent reviews.

    And while it is true that some in the environmental community are not happy with EPA’s recent permitting of fewer and smaller valley fills in WV, I think the agency is interpreting and applying the CWA the best it can using the best available science.

    However – the EPA appears to be ready to actively enforce the whole “cumulative impact” standard on a permit-by-permit basis. That is a HUGE, game-changing action on the agency’s part, and as Ken correctly points out, no one has even touched that, legally. Coupled with Judge Chamber’s recent landmark selenium ruling, and the winds of change are starting to blow through the coalfields of southern WV.

  14. Andrew says:

    How sad and bizarre that in order to protect human health, we have to use laws that protect fish and wildlife. I’m all for preserving nature, but isn’t the real issue here the people of Appalachia?

    Does anyone really contest the fact that coal mining adversely affects human health, from the miners to the local residents to the residents of towns that burn coal, and that MTR is the more grossly destructive form of coal mining?

  15. Ken Ward Jr. says:

    Andrew,

    Don’t know if you clicked through to read any of the EPA recommended determination … sections on “environmental justice” and “public health” start on page 72 or 73, thereabouts.

    Ken.

  16. Amanda says:

    Here is a link to Rainforest Action Network’s Spruce No. 1 case study report, prepared by Downstream Strategies:
    http://ran.org/content/epa-must-veto-spruce-mine

    I have not (yet) read reports specifically connecting Spruce No.1 with impacts on drinking water. I do agree with Andrew’s comment about using nature protection laws to protect human health.

    My quote from the Upper Watauga Riverkeeper can be originally found here:
    http://riverkeeper.appvoices.org/2010/10/07/busting-big-coal-legal-action-initiated-today/

  17. Shirley says:

    Fantastic. Now let’s see if the recommendation will be followed.

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