Coal Tattoo

The politics of the Spruce Mine: Do facts matter?

My good friend Sen. Joe Manchin is in the midst of something his staff is calling the “Call for Common Sense Tour” of West Virginia.  After yesterday’s performance by all of the state’s major political leaders, you have to wonder if somebody ought to organize a “Call for Facts” tour of the state.

Because, gosh, facts were in short supply in the statements Acting Gov. Earl Ray Tomblin and the state’s congressional delegation issued about the U.S. EPA’s veto of the Spruce Mine.  Sen. Manchin made the most of the situation, throwing together a press conference at his Charleston office, knowing that local television crews wanted video to go with the political rhetoric. And Manchin’s statement embodied the general narrative being pushed by the coal industry and its supporters:

The EPA is setting a dangerous precedent with this decision.  According to the EPA, it doesn’t matter if you did everything right, if you followed all of the rules. Why? They just change the rules. But what the EPA doesn’t seem to understand is that this decision has ramifications that reach far beyond coal mining in West Virginia. The EPA is jeopardizing thousands of jobs and essentially sending a message to every business and industry that the federal government has no intention of honoring past promises and that no investment is safe. That message will destroy not only our jobs, but our way of life.

The basic idea being pushed here: The Spruce Mine got every approval needed every step of the way, cleared every regulatory hurdle required, and was ready to go — but for the meddling of those anti-coal lefties from the Obama administration.

Industry lobbyists from the National Mining Association pushed this view, and two dozen other business groups jumped on board, arguing that if EPA could revoke a permit for a coal mine, they could revoke any permit at any time for just about any reason they wanted:

The implications could be staggering, reaching all areas of the U.S. economy including but not limited to the agriculture, home building, mining, transportation and energy sectors.

If EPA is allowed to revoke this permit, every similarly valid … permit held by any entity — businesses, public works agencies and individual citizens — will be in increased regulatory limbo and potentially subject to the same unilateral, after-the-fact revocation.

This argument is built on the assumption, declared by Sen. Manchin at his press conference, that:

This permit had gone through the proper channels … It had cleared at every aspect.

That sure sounds good. And when you hear it repeated by every media outlet in the state, you can easily be convinced that this is some terribly frightening action by those nasty folks at EPA.

There’s just one problem … it’s not true.

First of all, the U.S. Environmental Protection Agency never signed off on this permit. Never.

In fact, if you read yesterday’s Final Determination document issued by EPA, you learn that agency officials had raised questions about the Spruce Mine from the very beginning … See the history, starting on page 18. It’s especially important to note that the position taken by EPA on the Spruce Mine prior to the current veto proceeding was a June 2006 letter in which Bush administration EPA officials commented on the Corps’ draft study of the permit’s environmental impacts. In that five-page letter, then-EPA regional administrator Donald S. Welsh praised Arch Coal for some of the modifications in the Spruce Mine contained in that version of the permit:

… Due to the diligent and earnest efforts of the applicant and its representatives, progressive engineering, and a commitment by Mingo Logan Coal to minimize the footprint of the proposal, its impacts have been significantly reduced.

… The applicant has made many improvements to this project that will result in reduced on site impacts compared to previously submitted alternatives. These reductions will be achieved by extracting less coal and using smaller equipment for the operations. The overall footprint of the mining operation has been reduced from 3,113 acres to 2,278 acres. Twelve miles of stream impacts were reduced to eight miles of impacts. The White Oak Branch, a high quality stream that was to be significantly impacted, has been avoided. In addition, the applicant proposes to reforest the project area and mitigate for the loss of waters to the U.S.

But, Welsh also noted:

The new Spruce No. 1 proposal still reflects unavoidable impacts.

Welsh outlined that the proposal would:

… include mining of an average of 2.73 million tons of bituminous coal annually via mountaintop mining methods with incidental contour, auger, and/or highwall/thin -seam mining. The preferred alternative would result in a total surface disturbance of 2,278 acres of land. Approximately 500 acres would be actively mined at any one time, based on sequential backfilling and concurrent reclamation of the mine areas. The mining process would remove 400 to 450 vertical feet or 501 million cubic yards of overburden material. Nearly 391 million cubic yards would be placed within the mined area and the remaining 110 million cubic yards placed in the 6 proposed valley fills. The proposed Spruce No. 1 Mine would result in the discharge of approximately 110 million cubic yards of dredged and fill material into waters of the U.S. over a period of 15 years.

Welsh wrote:

We hope to continue to work with Mingo Logan Coal Company and state and federal regulatory agencies to address the cumulative impacts that result from mountaintop mining activities in the Little Coal watershed …

… We recognize that despite government and industries’ best efforts, mountaintop mining will continue to have impacts on the environment. We have remaining environmental concerns based on the uncertainty of the mitigation proposals and an as yet incomplete cumulative impact assessment and management plan for the Little Coal River watershed.

EPA staffers rated the Corps of Engineers’ environmental study of the Spruce Mine as “EC-2,” which means “environmental concerns and insufficient information.”  Welsh wrote:

We would like to work with the Huntington District [of the Corps], other Federal and State agencies, and representatives of the mining industry to address these concerns as the final EIS is developed and subsequent decisions regarding the permit are made.

Three months later, in September 2006, the Corps of Engineers issued its final environmental study on the Spruce Mine, a major step toward the Corps actually approving the permit.

Were EPA’s concerns addressed in the final study? Let’s see what EPA said in this Oct. 23, 2006, letter to the Corps:

EPA continues to have concerns over this project’s contribution to cumulative impacts within the Little Coal watershed. While potentially productive discussions with the applicant have occurred which may lead to a progressive watershed approach to these impacts, we are concerned that the mitigation does not address the following issues: stream functional assessment with appropriate stream mitigation credits, headwater stream mitigation and cumulative impacts. We also have concerns regarding the review of potential impacts to low-income and minority populations.

We recommend that the parties agree to a collaborative effort to address the cumulative impacts of this and future mining projects within the Little Coal watershed. In this regard, we would like to work with the Huntington District, other Federal and State agencies, and representatives of the mining industry to develop and commit to an agreement that would outline an approach for watershed stewardship and restoration efforts in the Little Coal watershed.

In its attached comments, EPA expressed concern that the Spruce Mine would downstream water quality would be impaired by the mining, and questioned whether the Corps had properly studied and considered such impacts.

So what happened next? Well, on Jan. 22, 2007, the Corps of Engineers issued the permit, without the issues raised by EPA being resolved.

A week later, environmental and citizen groups went to federal court to challenge the Corps’ approval of the permit. In a motion for a temporary restraining order, their lawyers argued that the Corps’ permit study was inadequate in a number of ways:

In the Spruce No. 1 Permit, the Corps again assumes that the mine operators can replace the biological and aquatic functions of over seven miles of buried streams by creating eight miles of drainage ditches in the mined area and on top of the valley fills.

The motion noted that U.S. District Judge Robert C. Chambers previously heard “extensive testimony” on these issues, including that:

— The Corps has no scientific basis or substantial evidence to assess the functions of streams that are buried by valley fills;

— The Corps has no scientific basis or substantial evidence to conclude that the structures or functions of buried streams will be offset by attempted stream re-creation, restoration or enhancement pursuant to compensatory mitigation plans; and

— The Corps has no scientific basis or substantial evidence to conclude that the cumulative environmental effects of the new mines be insignificant either individually or collectively with other mining projects.

It’s also likely that the legal challenge to the Spruce Mine would have touched on other issues:

— The Corps actually argued that “no impacts to surface water quality would be expected” from the Spruce Mine and that “an overall gain of water quality and quantity” would occur.

— While the Corps admitted that “conductivities and metals” were higher in streams below valley fills, the agency claimed that these pollutants would not cause biological impairment.

Judge Chambers never ruled on these issues, though. As EPA explains in its Final Determination, environmentalists reached a “stand still” agreement in which Arch Coal agreed to mine only in a limited area of Seng Camp Creek while an appeal of an earlier, somewhat related, ruling by Judge Chambers was appealed to the 4th Circuit.

Of course, Arch Coal also wants its day in court in front of Judge Chambers. Company lawyers argue that the 4th Circuit decision to overturn that previous ruling by the judge means the case of the Spruce Mine should also be thrown out.

Judge Chambers has never ruled on the Spruce Mine. Over the last year or more, he’s been waiting for EPA to go through its review and potential veto of the permit. Now that’s been completed, and there’s an opportunity for both sides to have their say and get a ruling.

So when politicians say the Spruce Mine has crossed every hurdle, they’re just wrong. But it makes for a nice narrative, and fits neatly into their arguments that there’s a “war on coal.”