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 hereEPA 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.”

71 Responses to “Breaking news: EPA vetoes Spruce Mine permit”

  1. mike roselle says:

    I’m guessing now that I’ve been banned from yet another West Virginia comment log?

  2. Ken Ward Jr. says:

    And here’s a statement issued by Sen. Jay Rockefeller:

    “I am deeply angered by the EPA’s decision to revoke the Spruce Mine permit,” said Rockefeller. “Their decision is wrong and unfair – Spruce Mine has always made good faith efforts to comply with the applicable laws and regulations. But this fight is not over. Ultimately, this is a decision that has a strong chance of being overturned by the courts, and I will continue to do everything in my power to stand up for our West Virginia miners and their jobs.”

    Sen. Rockefeller also wrote a letter about the issue to President Obama, http://rockefeller.senate.gov/press/EPA.pdf

    Ken.

  3. Gregg says:

    This is truly wonderful news! Finally an E.P.A. that actually enforces the Clean Water Act! This environmental destruction fueled by pure greed must stop!

  4. Stevenson says:

    Definitely good news. Time for industry to quit bawking and spend more time considering impact…rather than just money. Also, time to look at evolved practices. Progression of every industry requires ongoing evolutionary technogies…heaven forbid those evolutions include due diligence of environment outcomes. In the end, energy production through coal sources will still be cheaper than alternatives. As an environmentalist I can settle for this compromise. Less environmental destruction, yet still cheap production. After all, money is directly related to energy production itself.

    P.S. Being an environmentalist doesn’t mean you should lack practical realism. Rather one should recognize balance between human kind(its needs) and nature.

    In the extremist point of view; essentially, would require the absence of human kind for systems to operate naturally.

    Cheap industry production would, typically, require seemingly endless real estate and the destruction of its resources.

    Practical ideals, would recognize that integration of natural systems and human technologies is the proper course. Unfortunately, greed and stupidity are tangential.

  5. Al Justice says:

    Finding a balance between the environment and coal is the real goal, irregardless of the fact that it’s truly oddly, never been done. The take and destroy days of an industry out of control, have to be over. Even if global warming is not true, though I think it probably is, destroying entire regions for pure greed is simply unacceptable, especially when other extraction methods are available.

  6. Bob Kincaid says:

    The responses of WV’s highest ranking politicians paints a picture of the political problems that beset West Virginia.

    It appears they take to these issues as articles of faith not subject to question, rather than fact-laden circumstances subject to debate. Nick Rahall has screamed at a coalfield human rights advocate. Jay Rockefeller won’t even speak to us. Shelly Moore Capito, as noted above, was surprised to find out we, in our thousands, even exist. Joe Manchin tells us we need to have “balance” when we ponder being exposed to virulent toxins in our water and air.

    Opponents of the ongoing toxification of our air and water can be forgiven their disdain for WV’s congressional delegation, since politicians’ responses to this news seem to make clear that they have no interest in any opinion save that of the coal companies, made manifest in the quotes Ken has kindly provided.

    More than anything else, such comments show why we NEED the EPA to step in. Lord knows, our own representatives won’t. It’s “Mountaintop removal yesterday, mountaintop removal today, mountaintop removal forever” with them.

  7. rhmooney3 says:

    The noted concerns would be nearly universal to most of coalfields in Appalachian region.

    This is from the EPA decision:

    VI.B. Environmental Justice
    (Excerpt)
    According to the 2000 United States Census, Spruce No. 1 Mine is located in a census block group that contains 335 people. A census block group is a geographical unit used by the U.S. Census Bureau (Bureau) that is between a census tract and a census block in size and scale. It is the smallest geographical unit for which the Bureau publishes data. Census block groups generally contain between 600 and 3,000 people, with a target size of 1,500 people.

    Spruce No. 1 Mine is located in a census block group where the average per capita income is $15,411. This is more than $6,000 less than the national average of $21,587 and more than $1,000 less than the West Virginia state average of $16,477. The average median family income is also almost $13,000 less than the national average of $52,029. Moreover, 24% of the residents of Logan County live below the poverty line, which also exceeds state and national averages. Studies have highlighted that, despite the economic benefits provided by coal extraction, coal-producing counties in Central Appalachia continue to have some of the highest poverty and unemployment rates in the region (McIlmoil and Hansen 2010).

    The Corps included a discussion of environmental justice in the Spruce No. 1 EIS. However, as noted in comment letters in June and October 2006, EPA’s environmental justice analysis indicates that there may be a disproportionately high and adverse impact on the low-income population affected by the mining activity. Additionally, EPA remains concerned that the local community did not have the necessary information, or the opportunity, to meaningfully participate in the EIS process. Specifically, EPA is concerned the community was not informed when changes were made to different aspects of the mine project during the permitting and EIS process and therefore was not able to meaningfully comment on the final aspects of the mine. The mountains affected by Spruce No. 1 Mine are an important cultural resource for many residents. In many cases the mountains have helped define their culture, and they are an integral part of their daily lives. For example, the mountain ridges of southern West Virginia have for over two centuries been viewed largely as a “commons”, where local residents have gathered wild medicinal herbs such as American Ginseng (Panax quinquefolius) and Goldenseal (Hydrastis canadensis) (Hufford 2003). In many cases, collection of these wild herbs provides much needed extra income to local communities during times of unemployment or economic hardship (Bailey 1999). Removing these mountains may have profound cultural changes on the residents in the area, and so it is important that cultural impacts be considered as well.

  8. armored face conveyor says:

    There have been many comments here that Arch has displayed “Greed” by being unwilling to modify their mine plan for this permit. While I suppose one could characterized wanting to make a profit on a project as greed, the fact is that companies are in business to make money. Another fact is that in many cases the margins on proposed mines are rather thin. Arch has likely looked at the EPA’s proposals and determined that it can not achieve an acceptable return if it makes those changes.
    Many people who have posted seem to think that the alternative is to mine this coal by surface mining or by deep-mining. In reality the alternative is probably mine it by surface methods or add another spread to one of the mines in Wyoming.
    Many who post here rail against the environmental performance of US mining companies and regulators, but I hope most of them are intellectually honest enough to admit (at least privately) that the US is likely to have more responsible mining practices than China, or Mozambique, or Russia or Indonesia, or Mongolia. I read one comment that said the earth is smiling. Well, no its not, because this decision singlehandedly moved millions of dollars of investment capital to countries that could care less about environmental justice.
    The Colombian mining operations of Drummond (producing about 50 million tons/year) are about to be bought by a large Swiss mining firm for $8 billion dollars. This is significantly more than the market capitilization of Arch Coal which I believe produces over 100 million tons/year. It says a lot when Colombia is a safer business investment than the United States.
    I know it has become something of a joke to many, but “Atlas Shrugged” moved me when I read it. If John Galt was alive today he would be on strike.
    AFC – (ordering “Spanish” from Rosetta Stone)

  9. Ken Ward Jr. says:

    AFC,

    Thanks for your comment.

    One of the major problems here, at least from where I sit as a reporter, is that EPA has so far not released the report that engineer John Morgan did for it outlining alternative mining plans for these reserves … without access to that, it’s impossible for the public to judge if Arch Coal made reasonable decisions about whether they could live with EPA’s proposals.

    Ken.

  10. Vernon says:

    Remember the Dr. Seuss cartoon “Horton Hears a Who?” Horton was the only one who could hear the voices of the Whos who lived in Whoville on a speck of dust on a flower. Horton’s neighbors denied the existence of the Whos and tried to boil the flower in oil. Only when little Cindy Lou Who added her tiny voice to the Whos’ chorus of pleas did the neighbors hear. EPA is like Horton, and Manchin, Rahall, etc. are like the neighbors, denying the fact that we even exist. Who will be our little Cindy Lou Who?

  11. Cheryl Wagner says:

    Thank you so much for vetoing the Spruce Mountain mountain-top removal permit.

  12. j.r says:

    sorry to see many enviornmental extremist organizations oppose job creation and a much need product to fuel our homes and businesses. I can’t find anywhere where they propose to make up the difference by providing good paying jobs and alternate, viable energy solutions. A person has to have a real job with good benefits these days. where are all these people when so many able and willing workers are starving and losing their homes?

  13. Bob the Miner says:

    On another note related to this post .. I would agree with Ken that it is important to get ALL the information out about this application, including all the reports and information available to EPA in making this decision. I would go further to say that I would like to have a better view as to EPA’s entire decision making process. Did they even consider all the information or did they just dismiss some sources?
    I see the reference to “environmental justice” but I would turn that question around and ask that this standard be applied more broadly — is it “justice” to ask West Virginians to bear the cost of the implementation of the Obama Administration’s apparent determination to pursue cap-and-trade or a broader climate policy despite the clear intent of Congress?
    As I see it, this is what all this is about. The real question is the future of coal — this is evident in the comments made by Obama AND by many of the people in this forum. They want to end the use of coal — PERIOD! Many of them say as much outright. Let’s stop pretending this is about anything else.

  14. Red Desert says:

    Bob,

    Obama doesn’t want to end coal. They are willing to spend billions to prop coal up. This is not about ending coal at all.

    Obama visited the southern Illinois coal fields as a young state senator and it made an impression on them. He wanted to get the miners back to work. It’s not a war on coal. If it’s a war at all, it’s a war on pollution or environmental damage, waged reluctantly and with few resources.

    Is it justice to ask West Virginians to bear the burden of massive coal production, the benefits of which largely flow to those in other states?

    Coal can be burned much more cleanly than it is today and it can be mined much more responsibly than it is today, surface mining included.

  15. concerned miner says:

    Listening to radio news this morning I heard a statement from a well know environmental advocate in WV, I won’t use the name but the statement went something like…that there were hopes that this would lead the EPA to declare a moritorium on all coal mining, I mean all mountain top removal mining, Freud would have a fun time with that statement!!

  16. Taylor says:

    j.r, there are LOTS of proposals for creating jobs through cleaner forms of energy and through energy efficiency; for one source, read the book “Hot, Flat and Crowded” by Tom Friedman. But for this to happen, appropriate policies must be put into place (such as a price on carbon), and I don’t see that happening in the near future, unfortunately.

  17. Peter VanOoyen says:

    Great News ! But Manchin and Rockerfeller should be for this not against. If they truely care for the people of WV, then they would agree, we can live with out coal, but when the water is gone, so are we. Also, if coal is so good for WV, then why do the people of WV not get a dividend check each year like the people of Alaska do for the oil that is taken out of their state.

  18. Former Mountaineer says:

    I was born in Welch, WV, in the heart of coal country, 67 years ago. The coal industry has forever touted the “trickle-down” benefits of its environmental rape of the state: Jobs, jobs, jobs (and money to politicos’ re-election accounts). What is the result? One of the poorest states in the country, next to Mississippi. Where has the promised money gone? Out of state to Arch Coal’s owners, not to the people of WV. I left the state after graduating WVU because of the crushing poverty that is everywhere. The pervading sense of helplessness poisons the spirit as much as Arch Coal poisons the air and water. How many jobs were lost when deep mining was replaced by strip mining/mountaintop removal? Driving through rural counties in the south is like moving through some third world backwater. The sadness becomes so permeating that I will never return to the state.

  19. concerned miner says:

    Isn’t it interesting that Pete Silva resigned today after making this decision?

  20. Ken Ward Jr. says:

    concerned miner,

    Thanks for pointing that out … here’s a link to a story about Silva’s resignation:

    http://thehill.com/blogs/e2-wire/677-e2-wire/138023-top-epa-water-official-resigns

    Ken.

  21. Ken Ward Jr. says:

    Thanks to everyone for all of the comments … we’re going to shut this one down now, at least for the weekend. Ken.