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.


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”



  2. Josh says:

    This will surely see legislative proposals against the EPA from congress, especially the new house.

  3. Bo Webb says:

    This is encouraging news to so many people living near this illegal activity. The Clean Water Act was written with a purpose. It is high time it is being enforced. The next logical step, in the interest of public health is to announce an immediate moratorium on all mtr activity.

  4. Bob Kincaid says:

    I commend the EPA for standing tall in the face of withering criticism and fear-mongering by the coal industry. Coal industry intimidation tactics can be more than daunting, and I’ve no doubt that this decision required both political and personal courage.

    Today, I am proud of my government and the Obama Administration.

    More importantly, thousands of West Virginians have, thanks to the EPA’s decision, at least a little better chance at a decent life, unpoisoned by their air and their water.

  5. Richard Hypes says:

    Wonderful news!

  6. robbe says:

    FINALLY: an Environmental Protection Agency who will do just that: protect the environment for residents, eco-systems, and others of us who simply love it and need it to survive!! This is the change we can believe in – for the sake of ourselves and, more importantly, future generations who need clean water and healthy eco-systems!

  7. Antrim Caskey says:

    Thank you Ken Ward Jr for your tireless reporting keeping us so well informed.

    great news!

  8. bc says:

    It’s about time this nonsense was stopped.

  9. Mark says:

    The Administration is simply saying “scale it down, folks.” Nobody is trying to “kill coal.” I wish we could have a governor (or congressional member, for that matter) who would make a speech similar to Obama’s in Tuscon. The heated and hyperbolic rhetoric of the Friends of Coal is as calculatedly disingenuous and counter-productive as “death panels” and threats of “second amendment remedies.”

  10. Aaron Staats says:

    With the EPA awarding the union Hobet 45 a permit at the same time it took actions to strip the non-union Spruce Mine, the ONLY mine to undergo an environmental impact study of it’s permit leads many like me to believe the process of mine permits is nothing more then politics.

  11. cindy rank says:

    The late Judge Haden had it right back in 1999 when he recognized the irreparable harm that would be done by this mine. It is unfortunate that it’s taken more than a decade for our regulatory agencies to accept the multitude of legal, scientific and moral arguments against this permit, but I’m sure Judge Haden is smiling with us as we gratefully acknowledge EPA’s momentous and justifiable decision at long last.

  12. cathy says:

    As someone living in an area where I can’t drink the water thanks to the coal industry’s pollution, it is really great to see the EPA finally taking these water quality issues seriously.

  13. Thank you EPA for using your authority, for enforcing the Clean Water Act, for honestly examining the science and for hearing our voices.

  14. Mike says:

    From the Boone Examiner, Delegate Gary Howell wants to pass law that says the EPA can’t regulate coal mines that only sell coal inside the state. “Howell maintains that the regulatory authority granted to the EPA falls under the guise of interstate commerce and is nullified if the coal does not leave the state. If the coal does not cross state lines then the entire permitting process becomes a state’s rights issue.”

    While I personally think that’s absurd (I can’t imagine a mine this big selling coal to only one customer), a law like this might lead to coal brokers inside the state who act as middlemen to sell that coal out of state and bypass EPA and ICC regulations.

  15. debbie says:

    I can’t help but feel an arm slide around my shoulder when hearing this.
    It’s about time someone look at scientific evidence and use common sense when referring to our water and health here in the coalfields.
    As quotes in this article show ‘the fear mongering’ has begun.

  16. BGB says:

    This is wonderful news. For years Big Coal has been promising forward-thinking and new methodology, but why bother when the same old methods keep getting approved? This is a step in the right direction and a chance for Big Coal to put their money (and they’ve got plenty of it) where their mouth is. Should the EPA continue to take a hard-nosed stance against mountaintop removal, Big Coal will have no choice but to employ R&D and come up with a better, safer, and cleaner way to mine coal — and it’s about time.

  17. Ken Ward Jr. says:


    Thanks for your comment … In case you didn’t notice it, EPA discussed that in its statement:

    “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.”

    But regarding the Spruce Mine, EPA said:

    “Despite EPA’s willingness to consider alternatives, Mingo Logan did not offer any new proposed mining configurations in response to EPA’s Recommended Determination.”

    There’s more discussion of that in the Final Determination itself, and in the response to comments on EPA’s site.

    Also, I believe that the Pine Creek Mine that EPA approved was a non-union operation.


  18. Bitmapped says:

    I’m glad to see EPA veto this troubled permit.

    This is not a war on coal, it is the EPA enforcing the Clean Water Act. Arch could mine this site without this permit if they wanted; they just can’t dump overburden and waste into valleys.

  19. EKY gal says:

    Yippee! This is such great news. Finally we have a regulatory that is actually doing it’s job. It seems unsurprising that the WV politicians would have such a reaction. It sure would be nice if they put the interests and health of the people first like the EPA has done. Now I just hope that this isn’t an isolated incident. We in East KY are concerned about our health and heritage, especially in Benham and Lynch where the highest peak in the state is threatened.

  20. Aaron Staats says:

    “EPA believes that companies can design their operations to make them more sustainable and compliant with the law.”


    I read that, and even went back and read your blog from Jan 10 discussing the Hobet 45 mine. My comment to that statement would be, didn’t the Spruce Mine do dust that during their 10 year environmental impact study when they significantly reduced the size and scope of the mine?


  21. TED says:

    Right on! Great news…

  22. Observer says:

    “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.”

    Anybody know which permit this is??

  23. Ken Ward Jr. says:


    There’s no question the size of the permit was reduced (as a result of citizen group protests, lawsuits and pressure from regulators). More details on those changes here, .

    But, as discussed here, … EPA had an analysis done that indicated more changes to further reduce impacts were possible, and Arch Coal wouldn’t go along with those proposals.


  24. Vernon says:

    This is definitely good news for the people of WV who breathe air and drink water. I hope the EPA holds fast against the inevitable political backlash. I expect acting gov. Tomblin to declare a state of emergency or some other political stunt.

  25. Ken Ward Jr. says:

    Arch Coal hasn’t responded to my query yet, but the New York Times has these comments from a company spokeswoman:

    “We remain shocked and dismayed at E.P.A.’s continued onslaught with respect to this validly issued permit,” said Kim Link, the company’s spokeswoman. “Absent court intervention, E.P.A.’s final determination to veto the Spruce permit blocks an additional $250 million investment and 250 well-paying American jobs.”

    “Furthermore, we believe this decision will have a chilling effect on future U.S. investment,” she added, “because every business possessing or requiring a permit under Section 404 of the Clean Water Act will fear similar overreaching by the E.P.A. It’s a risk many businesses cannot afford to take.”


  26. Taylor says:

    What wonderful news. Way to go, EPA! Thank you!
    I just wish this had happened before Judy Bonds passed.

  27. Monty says:

    I’m of two minds on this. On the one hand, sure, is any one really surprised by EPAs decision? They’ve been telegraphing this move for months, although they have tried to give Arch, and the DEP, lots of wiggle room and do-overs. That ultimately was unproductive, as the EPA noted in its final decision.

    On the other hand, we now have a Republican majority in Congress, and a non-veto-proof Democratic majority in the Senate. Anyone want to place bets as to how long it is going to be before 1) Congress starts holding hearings on the EPAs rule-making AND enforcing authorities, and 2) the Senate movs to return the EPA to its Bush-era level of inaction. I’m going to give it less than a month.

  28. Phyllis Price says:

    Joe Manchin is nothing more than a bought and paid for Corporate shill taking the interests of big business over the health and welfare of the good people of West Virginia who have placed their trust in our elected officials to do what is right. Hopefully he’s a one time Senator. There are better ways to do things that will lessen the impact of destruction to our state and create jobs. As it stands now according to the Fishing guide issued by the State there isn’t a river or stream that isn’t polluted making eating the fish a risk. When will we wake up and realize Corporations are not our friends. They could care less about the impact on human and wildlife as long as their bottom line is in the black I applaud the EPA for taking a stand to protect us all

  29. Chris says:

    I see all your names and the funny thing is I don’t recognize any of you. I grew up in a small coal town. The great Town of Man. All the jobs down there were 99% coal or coal related/induced. It was a great place to live and grow up. I bet most of you have never been to this beautiful area of the State. Everyone I know made there living at the coal mines. Is it dangerous work and have a negative impact on the environment? you bet it does. However, the reason I don’t live there anymore is because my coal mine dad made a GREAT living and sent three boys and a wife to school on that coal miners salary. One teacher, two engineers and a Pharmiceutical Rep. Not bad for a dumb old coal miner? One question. When all the mines are finally closed are all you environmentalist going to come down there and support the local economy. I would bet not. If you just think use a little common sense this would not be a problem. If the regulations are actually followed, you can protect the environment and still mine coal and let an area of the State survive on it own. Are you guys going to complain when all of Southern WV is on food stamps and unemployment? If you don’t come to our community then why do you care? Great, 10 years from now we will have the wonderful mountains to look at but you won’t be able to enjoy them because the only thing down there will be the mountains if you don’t leave the coal mines alone. Regulate them. By the way, I worked at the DEP for a while and did Title V permitting for Air Quality. I know how the back door deals work.

    If any of you environmentalist extremist play golf, go to Twisted Gun one of the best golf courses in the State. Of course, it was just built on a fill by a coal mines but hell they just want to destroy the enviroment.

    I really do hope you guys support the economy down there when everyone is gone. My 4.5 year old son loves to visit down there and I hope that he will be able to for the next 50 years or so.

    I’m done. Congrats.

  30. Ken Ward Jr. says:

    Here’s another statement, this one from Rep. Shelley Moore Capito, R-W.Va.:

    For nearly a year, the EPA has kept the Spruce Mine Permit in limbo by continuing to delay action on the permit in question. As the EPA has been purposefully slow to act, hundreds of mining jobs have been put at stake. This action is hard evidence of the EPA’s anti-coal agenda, as well as their intent to use their regulatory authority to dismantle the coal industry. What’s more, this veto puts all previously issued permits at risk, casting a wide veil of uncertainly over not just coal, but any industry subject to 404 permits,”

    There has to be a middle ground here to honor our resources and allow miners to put food on the table. This was a drawn out, staged event to reward a core constituency that doesn’t want any coal mining or coal plants, no matter the cost to West Virginia or our nation.


  31. Ken Ward Jr. says:

    OK, folks …

    Just a friendly reminder … no name calling of any kind. No need to refer to folks you disagree with as “extremists” or “shills.”

    If you can’t or won’t be respectful of those you disagree with, please go comment on some other blog.

    And let’s try to keep remarks that are no more than cheer-leading to a minimum, OK? More substantive comments and thoughts on today’s news would be much more helpful to everyone and much more welcome on this blog.


  32. Johnny Severe says:

    Chris, I hope you will remember that MTR is a way not of preserving jobs but of getting rid of them. The great mining jobs that earned your family their well-deserved success have disappeared not because of environmentalists but because the mining companies figured out how to a lot more work with a lot fewer people. If they could do this work with robots or monkeys, I assure you no mining jobs would remain whatsoever. And when the coal is gone, I don’t think you’ll be able to count on Massey to hang around and make everything better–I really think you’d be better off betting on the environmentalists! I hope to God your son will be able to visit the great Town of Man forever, but unless some alternative to the current economic structure is found, he’ll be visiting a moonscape dotted by private prisons, landfills, and the other kind of bottom-feeder developments that inhabit much more of the “reclaimed” mine space than do golf courses. (By the way, read up on the use of pesticides and herbicides on golf courses and you’ll think twice before proclaiming them an environmentally friendly land use.)

    Chris, let’s work together to make a real, prosperous future for Appalachia! I think it will happen and it will probably take a form we can’t even predict right now. But if we destroy the mountains and poison the water it won’t happen at all.

  33. watcher says:

    This EPA decision helps explain why Bill Gates and Warren Buffett landed in Gillette Wyo. to look at coal rather than Charleston W V. Western coal is largely held in faderal hands, the same hands who control the EPA.

  34. Rory says:

    Here’s my take.

    The EPA decision document says multiple times that they feel the mine could have proceeded with a different mining plan, one that I guess the coal company rejected. So if I read it right, it’s still possible that mining may occur on the mountain beyond what Arch will be able to do while continuing to use Seng Camp Creek as a disposal site. They just won’t be able to construct any new valley fills in Oldhouse or Pigeonroost Branch.

    The EPA decision document does also make it clear that the Spruce decision holds no bearing on decisions made for other permits. However, as long as this EPA is in control, I doubt many new valley fills for other permits will be approved, because from what I’ve read of the scientific analyses of the mine’s potential impacts (and existing impacts from nearby mines), EPA’s decision is consistent with federal laws and regulations, and I doubt EPA has any plans to discontinue applying the law as based on sound science.

    I would finally like to point out that reports I’ve seen (I believe from the 2003/2005 EIS on MTR and valley fills) on the remaining land area suitable for MTR mining suggest that few remaining sites are available. Much of that area falls within the Coal River watershed, which has been heavily impacted by previous mining operations and shows significant degradation of water quality. Therefore, it is unlikely that any new large permits will be approved under the current EPA, given that they would likely depend on the availability of suitable sites for valley fills.

    I recommend to anyone who believes the EPA is merely playing politics and trying to stop coal altogether to read the decision document linked above. It describes, in great detail, the scientific evidence underlying their decision as well as the applicable laws and regulations.

  35. Bo Webb says:

    Thanks for reminding us Ken,
    Chris, we aren’t talking about traditional mining. We are talking about a radical form of mining known as mountaintop removal. I for one, live beneath one of these operations. Many people in my community are getting sick, mainly cancer. The EPA has cited health concerns in revoking this permit. It is their job, their mandate, to protect the public from harmful industrial pollution. They are there to protect your family as well as mine. The day that we accept a coal industry, or any industry for that matter to place us in a position of risking our lives, our childrens lives for the benefit of a job is the day democracy has died. Let’s face the problem of mtr, let’s acknowledge the health and welfare problems it poses to our mountain communities, and stop this type of mining. Let’s replace strip jobs with reclamation jobs and sustainable jobs. Let’s understand that mtr is going to be over soon (and it is) and lets move forward to build a better future for our kids.

  36. Bobby says:

    Did the EPA just veto the 404’s with this, or is the whole permit killed with this action.

  37. Ken Ward Jr. says:


    EPA vetoed the 404 permit.


  38. Aaron Staats says:


    Regardless of the reasons Spruce reduced the permit, the fact is (please correct me if I’m wrong) no other mine has undergone the scrutiny that this mine did when it underwent the Environmental Impact Study that resulted in Spruce 1 receiving a permit? And didn’t the United States Environmental Protection Agency participate in that environmental study that resulted in that permit?

    If both are true, and I am pretty sure they are, then how is the EPA under a new administration revoking this permit not a political act? And if that is the case, why would any company invest the money required to mine coal in any state if there is even the slightest possibility that their permit will be pulled with the election of a new administration in Washington?


  39. rhmooney3 says:

    Congress can do a line iterm reversal of the EPA action, but I believe the mining industry, the entire business community and all the states want this to move through the federal courts to the U.S. Supreme Court.

    Congress can always reverse it afterwards if it is upheld in the courts.

    I wouldn’t wager a penny on this decision sticking since there will be more than a lot of money being spent against it.

    I very much hope that I am wrong since any reversal will change a lot more than this one decision.

    P.S. As a result of this EPA action, mining companies have no choice than to play ball with the EPA — in making this decison the EPA has made a lot of other decisions yet to come.

  40. Bob Kincaid says:


    Will you be updating this post with Congresswoman Capito’s remarks? I saw you note them on Twitter, and think it would be valuable here, as well.

    That Rep. Capito thinks rules protecting water and air are something only a “core constituency” needs is proof that she really doesn’t understand the issues at hand.

    It’s like the day last January when we all met under GovJoe’s “big tent,” and she heard (apparently for the first time) a number of actual West Virginians speaking out against mountaintop removal and asked me afterward “So you’re a West Virginian, are you? I didn’t know West Virginians opposed mining, too”

  41. Ken Ward Jr. says:


    Thanks for the discussion …

    I’m not sure it’s appropriate to have a discussion about this “regardless” of EPA’s reasons for it’s action. Shouldn’t fair-minded people consider the reasons for an agency’s action before condemning that action?

    In response to your points:

    — I believe you’re correct. It’s almost certain that no other mine has undergone the kind of scrutiny that Spruce has … Perhaps Cindy Rank can jump in here, though, because she may want to point out that another mine many years ago underwent an EIS … but that was long before my time.

    — Yes. EPA was involved in the process. And here was what I wrote last year about the last comment that the George W. Bush EPA made in June 2006 regarding the Spruce Mine when the Corps issued its EIS:

    During the comment period on the current Spruce Mine permit, in June 2006, the EPA issued a letter that ranked the proposal as “EC-2,” or “Environmental Concerns and Insufficient Information.”
    The EPA praised the company and the corps for reducing the mine’s impacts, but said the permit still did not contain adequate mitigation for water-quality damage, sufficient study of cumulative impacts or a detailed review of potential environmental justice effects of the operation.
    “We have remaining environmental concerns based on the uncertainty of the mitigation proposals and as yet incomplete cumulative impact assessment and management plans for the Little Coal River watershed,” wrote then-EPA regional administrator Donald Welsh.

    These are the same issues that the Obama EPA has raised in vetoing the permit.

    Keep in mind that politics is part of how things are decided in this country. We had an election in 2008 and as I believe Karl Rove has said, “Elections have consequences.”

    It’s also important to recall that the George W. Bush administration greatly changed the direction of EPA’s oversight on mountaintop removal shortly after taking office back in 2001. For those who have forgotten:

    Thanks again for the discussion. Ken.

  42. Ken Ward Jr. says:


    See the comments above yours … Rep. Capito’s remarks were added there.


  43. Amanda Starbuck says:

    Observer, I think that reference may be to the Patriot permit that went through in early 2010

    On Spruce: this is wonderful news. The EPA has resisted enormous pressure from Arch Coal and the coal industry lobby in carrying out its responsibility to put the protection of our environment and the communities who depend upon it, ahead of corporate profits.

  44. Ken Ward Jr. says:

    Thanks Amanda … Observer, there have actually been at least two permits that EPA worked out deals on … one is Patriot Coal’s Hobet 45 permit and the other is Coal-Mac’s Pine Creek mine.

    They’ve been discussed in great deal previously on Coal Tattoo:


  45. KEITH SMITH says:

    mother earth is smiling.

  46. Bob Kincaid says:

    Thanks, Ken.

    I went looking in the body of the post. I appreciate you pointing out the location.

    I’ve now read and re-read her remarks. I’m flummoxed. Does she really think the EPA has an “anti-coal agenda,” in light of the fact that Hobet was approved, and numerous other MTR sites are operating even as I type?

    I fully understand that I share a point of view different from Rep. Capito’s, but for her to call for “middle ground” in the same sentence she accuses thousands of other air-breathers of being nothing more than a “core constituency” awarded with a decision solely based on partisan politics is quite dismaying. She does, after all, purport to represent ALL the West Virginians of the Second Congressional District, and not just those who adopt a coal-based agenda.

  47. Aaron Staats says:


    I’m not condemning anything. You pointed out an EPA statement in which they wanted the company to negotiate with them and I merely pointed out that Spruce had already done that and as a result, they were issued a permit.

    I understand that politics play a role and that elections have consequences but when we as a nation start reversing decisions like this permitting process that requires a massive financial investment from a business, we are getting to the point that corporations will simply not invest their money in that type of industry.

    There is too much coal in places like China, Brazil and Russia to deal with American laws if they become so politicized that a company cannot predict their investment beyond a 4 year election cycle. And while that is apparently the ultimate goal of many on the left including our President and Vice President, is it really a prudent direction to take given not our economy but our future energy needs as well.

    I have no problem with regulation but when it gets to the point that a company will simply pull up stakes and take their money and jobs elsewhere because of over-regulation, unsure regulation that results in a reversal of a decision like this or because there is an appearance of impropriety of a union/non-union status, I do believe that is going too far.

    And while many will dismiss me as an ardent coal supporter that doesn’t care about the environment, that is simply not the case. I believe all mining should be regulated in a responsible manner, I have no problem with reversing the changes made by the Bush Administration regarding valley fills; I believe a company should be responsible for either returning a site to its original contour or develop the land for use (including roads and utilities) and that companies should be taxed responsibility and proportionately for the product they remove from our state.

    What I do not believe is that we can simply reverse course on already approved projects based on what appears to man to be political reasons, especially when the statment released by the EPA list concerns, not facts or data. Instead of revoking the permit, shoudln’t officials have continued the delay and completed cumulative impact assessments and management plans for the Little Coal River watershed as well as other concerns instead of revoking the permit? Wouldn’t that have more of a positive impact on businesses and at least given future investors some assurance that EPA would act with a carrot instead of a hammer on future permits?


  48. mike roselle says:

    The middle ground here will get strip mined, so who needs it? Why is a compromise a new mine and the extremist position no strip mines? Mountain top removal is extreme by any rational standard, and it cannot occur without violating the law. This action by EPA was long overdue, and hopefully their promise to use the law and science to guide them in the future is sincere. So now begins a new war, in which the coal industry will try again to gut the law, repeal it or pass something even more to their liking. I don’t think they can succeed here, as this issue has become one of national importance. The whole world is watching.

  49. Ken Ward Jr. says:

    Here’s the complete statement issued by Arch Coal:

    “We remain shocked and dismayed at EPA’s continued onslaught with respect to this validly issued permit. Arch will continue to vigorously defend the permit, now in court, along with the right to have a predictable regulatory environment. Absent court intervention, EPA’s final determination to veto the Spruce permit blocks an additional $250 million investment and 250 well-paying American jobs. Furthermore, we believe this decision will have a chilling effect on future U.S. investment because every business possessing or requiring a permit under Section 404 of the Clean Water Act will fear similar overreaching by the EPA. It’s a risk many businesses cannot afford to take.”