Coal Tattoo

Breaking news: EPA vetoes Spruce Mine permit

January 13, 2011 by Ken Ward Jr.
Word is just coming down that the U.S. Environmental Protection Agency has vetoed the largest single mountaintop removal permit in West Virginia history.

The move is part of an Obama administration crackdown aimed at reducing the effects of mountaintop removal coal-mining on the environment and on coalfield communities in Appalachian — impacts that scientists are increasingly finding to be pervasive and irreversible.

The final EPA decision document withdrawing the Clean Water Act Section 404 permit is available here.  EPA has also now posted some appendices to that document, including a response to comments.

EPA officials this morning were alerting West Virginia’s congressional delegation to their action, and undoubtedly preparing for a huge backlash from the mining industry and its friends among coalfield political leaders.

In making its decision to veto the U.S. Army Corps of Engineers’ approval of the 2,300-acre mine proposed for the Blair area of Logan County, EPA noted that it reviewed more than 50,000 public comments and held a major public hearing in West Virginia. EPA officials said their agency is “acting under the law and using the best science available to protect water quality, wildlife and Appalachian communities who rely on clean waters for drinking, fishing and swimming.”

Peter S. Silva, EPA’s assistant administrator for water, said:

The proposed Spruce No. 1 Mine would use destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and clean water on which they depend. Coal and coal mining are part of our nation’s energy future, and EPA has worked with companies to design mining operations that adequately protect our nation’s water. We have responsibility under the law to protect water quality and safeguard the people who rely on clean water.

The agency also said:

EPA’s final determination on the Spruce Mine comes after discussions with the company spanning more than a year failed to produce an agreement that would lead to a significant decrease in impacts to the environment and Appalachian communities. The action prevents the mine from disposing the waste into streams unless the company identifies an alternative mining design that would avoid irreversible damage to water quality and meets the requirements of the law. Despite EPA’s willingness to consider alternatives, Mingo Logan did not offer any new proposed mining configurations in response to EPA’s Recommended Determination.

In addition, EPA argued:

EPA believes that companies can design their operations to make them more sustainable and compliant with the law. Last year, EPA worked closely with a mining company in West Virginia to eliminate nearly 50 percent of their water impacts and reduce contamination while at the same time increasing their coal production. These are the kinds of success stories that can be achieved through collaboration and willingness to reduce the impact on mining pollution on our waters. Those changes helped permanently protect local waters, maximize coal recovery and reduce costs for the operators.

Readers will recall that the Obama EPA began looking more closely at the Spruce Mine in September 2009.  But debate over the proposed operation dates back to the late 1990s, when then-U.S. District Judge Charles H. Haden II issued an injunction that blocked the mine, which then was proposed for more than 3,000 acres. After the Haden ruling, the company reduced the size of its proposal and the operation underwent much more intense scrutiny, in the form of a full-blown Environmental Impact Statement by the Corps of Engineers, which approved the new mining configuration in January 2007.

EPA began the veto process in October 2009 and issued in March 2010 a preliminary determination that the mine would cause unacceptable impacts. EPA held a public hearing in May 2010, and EPA Regional Administrator Shawn Garvin issued the formal recommended veto in October 2010.

In today’s announcement, EPA outlined these concerns that the proposed mining operation would have:

— Disposed of 110 million cubic yards of coal mine waste into streams.

— Buried more than six miles of high-quality streams in Logan County, West Virginia with millions of tons of mining waste from the dynamiting of more than 2,200 acres of mountains and forestlands.

— Buried more than 35,000 feet of high-quality streams under mining waste, which will eliminate all fish, small invertebrates, salamanders, and other wildlife that live in them.

— Polluted downstream waters as a result of burying these streams, which will lead to unhealthy levels of salinity and toxic levels of selenium that turn fresh water into salty water. The resulting waste that then fills valleys and streams can significantly compromise water quality, often causing permanent damage to ecosystems and streams.

— Caused downstream watershed degradation that will kill wildlife, impact birdlife, reduce habitat value, and increase susceptibility to toxic algal blooms.

— Inadequately mitigated for the mine’s environmental impacts by not replacing streams being buried, and attempting to use stormwater ditches as compensation for natural stream losses.

UPDATE: It’s important to clarify this from EPA:

… EPA’s decision prohibits five proposed valley fills in two streams, Pigeonroost Branch, and Oldhouse Branch, and their tributaries. Mining activities at the Spruce site are underway in Seng Camp Creek as a result of a prior agreement reached in the active litigation with the Mingo Logan Coal Company. EPA’s Final Determination does not affect current mining in Seng Camp Creek.

EPA also said:

With today’s action, EPA has exercised its Section 404(c) authority only 13 times in its history of the CWA. EPA recognizes the importance of ensuring that its Section 404(c) actions are taken only where environmental impacts are truly unacceptable and will use this authority only where warranted by science and the law.

But, as EPA has said before, none of the previous 12 permit vetoes involved projects that had already been permitted. But there was one instance, in 1978, where EPA rejected major changes proposed in a permit that had already been issued for a landfill in Florida.

Reactions began coming almost immediately after EPA made its announcement.

Joe Lovett, director of the Appalachian Center for the Economy and the Environment, said:

It is a relief after all of these years that at least one agency has shown the will to follow the law and the science by stopping the destruction of Pigeonroost Hollow and Oldhouse Branch.

Today, the EPA has helped to save these beautiful hollows for future generations. Unfortunately, the Spruce Mine’s impacts are not unique. Although we are grateful for the EPA’s action today, EPA must follow through by vetoing the scores of other Corps permits that violate the Clean Water Act and that would allow mountaintop mines to lay waste to our mountains and streams.

The Ohio Valley Environmental Coalition said:

We breathe a huge sigh of relief today and we thank the EPA and the Obama Administration for enforcing the Clean Water Act. We are so pleased that this historic veto of the Spruce No. 1 Mine permit halts the destruction of Pigeon Roost Hollow.

Spruce No. 1 is the only individual permit to have undergone a full Environmental Impact Statement (EIS). The science completely validates what we have been saying for more than a decade: These types of mining operations are destroying our streams and forests and nearby residents’ health, and even driving entire communities to extinction. This type of steep slope coal mining is destroying our cultural heritage and our future.

We will continue our work to halt other illegal permits, both in-progress and pending. These other permits should also be subject to an EIS.

W.Va. Senator Joe Manchin said:

Today’s EPA decision is not just fundamentally wrong, it is an unprecedented act by the federal government that will cost our state and our nation even more jobs during the worst recession in this country’s history.

While the EPA decision hurts West Virginia today, it has negative ramifications for every state in our nation, and I strongly urge every Senator and every Member of Congress to voice their opposition.

The National Mining Association said:

EPA’s veto of an existing, valid permit for the Spruce No. 1 mine threatens the certainty of all Section 404 permits—weakening the trust U.S. businesses and workers need to make investments and secure jobs. The Spruce permit was issued after a robust 10-year review, including an exhaustive Environmental Impact Statement. EPA participated fully in the comprehensive permitting process, and the project has abided by every permit requirement.

EPA has taken this unprecedented action—never before contemplated in the nearly 40 years since the enactment of the Clean Water Act—at a time of great economic uncertainty. NMA urges the administration to step back from this unwarranted action and restore trust in the sanctity of lawfully granted and abided by permits and the jobs and economic activity they support.

Rep. Nick J. Rahall, D-W.Va., issued this statement:

The EPA’s unprecedented action today to veto a previously granted permit for the Spruce No. 1 Mine, though highly disconcerting, is far from surprising; Arch, the miners, the community, and I have been opposing this action for months. This veto reaches well beyond one coal mine; it threatens the economic security of every business that relies upon these Clean Water Act permits and that depends upon a fair and consistent permitting process While this Administration claims that it will not take similar action on any other permit, there is nothing to prevent it, or any future EPA, from reaching back to veto a previously granted permit now that this line has been crossed. The good news, if there is any, may be that by EPA’s finalizing this threatened action, the matter can now be taken before the courts, where I hope it will receive a thorough hearing and expeditious reversal.

Acting Gov. Tomblin issued this statement:

This news is devastating to the Southern Coal Fields and our entire state. The Spruce Number One permit was issued years ago after undergoing a comprehensive permitting process. It is hard to understand how the EPA at this late hour could take such a drastic action. We will continue with all efforts to get this decision reversed. Businesses need stability to succeed. I believe we can mine coal in an environmentally safe manner and I will continue to fight this decision.

UPDATED:

So far, none of the politicians have mentioned the serious questions EPA raised about whether much or most of the coal at this site could have been mined by Arch Coal using less damaging mining plans. We discussed that possibility previously in two Coal Tattoo posts, here and here.

For more on that, turn to page 75 of the EPA Final Determination document, which says, in part:

… The permittee has presented only limited alterations to the permitted project that it believes would likely result in environmental improvements. These proposals included additional compensatory mitigation projects, new mine construction practices, and increased water quality monitoring.

EPA maintains, however, that there appear to be additional practicable alternative project configurations and practices that would significantly reduce and/or avoid anticipated environmental and water quality impacts to Pigeonroost Branch and Oldhouse Branch.

… Mingo Logan Company has expressed a willingness to take some additional steps focusing on best management practices to reduce impacts, but has been consistently unwilling to consider needed actions to further reduce the 35,000 feet of direct impacts to valley fills on headwater streams or to phase valley fill construction in a manner that would allow for effective assessment of, and an adaptive management response to, adverse impacts to wildlife habitat  and anticipated water quality problems.

Updated: Here’s a statement just issued by United Mine Workers of America President Cecil Roberts —

It’s never a good day when hard-working people lose their jobs. The current and future job losses caused as a result of this decision will cause great difficulties for the Spruce mine workers, their families and their local communities.

“Although we do not represent the workers at the Spruce mine, every job is precious in the coalfields and we don’t like to see any lost. It is truly unfortunate that the EPA and the mine operator could not come to an agreement that would allow many of those jobs to be saved.

“As we move forward from this day, we must be about the work of creating good, safe coal jobs in the coalfield communities, not eliminating them. We believe that can be done within a reasonable regulatory framework and with a willingness on the part of government to share that goal.”