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.
… 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.