The politics of the Spruce Mine: Do facts matter?

January 14, 2011 by Ken Ward Jr.

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.”


23 Responses to “The politics of the Spruce Mine: Do facts matter?”

  1. Jim Sconyers says:

    What a breath of fresh air – fact-based reporting of the truth. Thanks Ken – what a shame that this kind of reporting becomes rarer and rarer.

  2. cindy rank says:

    Thank you for setting the record straight, Ken.

    The portions of history and comments by EPA on the Spruce Permit that you have tediously highlighted here are essential to understanding the falacies being repeated over and over again by Senator Manchin and other representatives of the coal industry.

    The twists and turns of the past 12 year history of the Spruce #1 permit are many and complex – even for those of us who have been there from the beginning. The latest industry PR about EPA overstepping its authority and already approving the Spruce permit is hogwash that can be countered only by repetition of the facts you’ve pointed out.

    EPA has done a thorough job of documenting its reasons for this recent totally justifiable action and i for one thank you for your attention to these details.

  3. mlevans says:

    Thank you presenting the facts here about the history of the Spruce Mine permit. It is important to note that at no time was it ever approved. I realize this action may cost jobs, but it will also save the water and environment of thousands. I hope this inspires acting Gov Tombin and Senators Manchin and Rockefeller to being thinking more about diversifying the economy of WV—before we are left with only a memory of what will seem our glory days.

  4. Ken Ward Jr. says:

    Mlevans,

    Just to be clear … the permit WAS APPROVED. It was approved by the Army Corps of Engineers, prior to EPA’s issues being resolved, and so far the legal issues raised by citizen groups have not been ruled upon.

    What’s incorrect is to say that the mine has cleared every possible hurdle. That’s incorrect.

    Ken.

  5. Thomas Rodd says:

    Ken, great truth-telling, as usual.

    As to whether it’s fair for some people to say that there is a “war on coal,” here’s a quote from a July 2010 article in Sierra Magazine by Jeff Biggers:

    “As early as 1892, a Chicago Tribune editorial questioned the wisdom of relying on coal: “Doubtless the end of the coal, at least as an article of a mighty commerce, will arrive within a period brief in comparison with the ages of human existence.” The editorial lambasted Americans for their unwillingness to conserve energy and their need to “invent appliances to exhaust with ever greater rapidity the hoard of coal.” “How long can the earth sustain life,” it asked, if we depend on the “wonderful power of coal?” More than a century later, it’s come to this: “Coal is the single greatest threat to civilization and all life on our planet,” climatologist Hansen said. “Our global climate is nearing tipping points.” So, at last, is the future of coal.”

    Reading this sort of language would make many people feel that it’s not unreasonable to say that there are forces in the US and globally that have declared a “war on coal” — for the understandable reason of trying to save the planet from catastrophe.

    See also “Killing King Coal,” Sierra Magazine, http://www.sierraclub.org/sierra/200903/kingcoal.aspx; Pittsburgh Post-Gazette, “War On Coal Pits Miners Against Environmentalists,” http://appalachiantransition.blogspot.com/2010/11/pittsburgh-post-gazette-war-on-coal.html

    It would be entirely wrong to say that the EPA or the Obama Administration, or many of the folks who are specifically upset about strip mining, water pollution, etc. have the elimination of the burning of coal as an energy source as a primary goal — but it’s hardly paranoia to see the cumulative and many-faceted efforts to rein in the coal industry, add to coal’s market cost by forcing it to pay its true costs, etc., as part of a “war on coal.”

    The industry, by helping to defeat cap-and-trade, refused to cut a deal with climate change policy leaders — and so the war is intensifying, permit by permit, power plant by power plant, etc.

    The issue for us here in West Virginia — can we deal with this situation with “eyes wide open” — or will we resort to denial and demagoguery?

    This blog and ALL of its commenters are doing a great job in taking the better path.

  6. Mammaw says:

    Thank you, Ken! As always, you have cut through the hysteria and found the facts! I wish our government representatives were even half so interested in the truth.

  7. ed442 says:

    Is that an actual photo of Spruce No. 1? If so, it looks like they have already mined a lot of the mountain. I wonder how much this 404(c) will actually do to reduce the impacts of the project?

  8. Stan says:

    Ken,
    There is a war on coal. Nothing you write even argues there isn’t.

    Thanks for this narrative. It was very informative.

  9. Josh says:

    Some would call it a “war on dirty energy that pollutes the local to global environments and poisons the people of Appalachia”. It would be irresponsible to write something indicating that the majority of the US doesn’t want to wage that war.

    My own opinion on the answer to the question posed by the title of this blog post: Facts matter to the folks who are relocated, poisoned, intimidated, and forgotten about by big MTR coal. The facts do not matter to the short-term benifiters i.e. politicians, execs, Chinese consumers of coal. In the long term everyone loses if the facts don’t start mattering more.

  10. Becke says:

    This coming from someone whose posts are his opinion – biased that it is with only chosen facts to support his opinion while conveniently leaving out the facts that show the whole picture.

  11. Aaron Staats says:

    Ken,

    Where is the actions taken by the EPA when this permit was issued to stop mining? After all, the powers by which they are revoking this permit is surely not a new power and as you pointed out EPA officials had grave concerns abut this mine so where can we find a link to detail their response to the COE issuing the permit?

    Aaron

  12. Ken Ward Jr. says:

    Aaron,

    I am not aware of any action taken by EPA between the Jan. 22 issuance of the permit and the filing of the court action by the environmental groups. If I were, I would post those documents as well.

    I believe that mining at the site, beyond the “stand still” agreement area was not imminent, so EPA did not take action at that time.

    Becke — Thanks for your comment. I would encourage you to post any facts that you believe haven’t been reported by Coal Tattoo or the Gazette that are important to readers understanding those issues, and would welcome such information … Thanks, Ken.

  13. Aaron Staats says:

    Ken,

    I realize who was in Washington at the time of the permit was issued but for them to take no action regardless of who was in charge, to pull the permit does appear political.

    After all, could EPA officials not have filed some sort of interest suit aligning themselves with environmental group in the same manner Manchin did as Governor of WV when he sided with coal companies?

    So while they may not have explicitly supported the permit, to stand by and remain silent when they could have spoken out against the permit (regardless of what political party was in charge) when it was issued can indeed to viewed as confirming their approval of the permit.

    I would disagree with your assertion that the EPA [b]NEVER[/b] signed off on this permit as their silence spoke volumes.

    Sincerely,

    Aaron

  14. Ken Ward Jr. says:

    Thanks for your thoughts, Aaron.

  15. rhmooney3 says:

    Ken,

    True, but the permit did not require approval or disapproval from the EPA — the U.S. Corps of Engineers has the authority to issue the 404 permits — and the EPA retains the authority to override or otherwise change the Corp’s decision. Something that is very, very rarely done.

    In honesty, the company did have what was needed to proceed except, of course, for the court challenges which had been filed and not resolved.

    None of that really matters since it’s now in the lawyer’s hands — plenty of them.

  16. Scott14 says:

    Ahh, lest we forget the political winds of change that blew thru washington in november. Just because the permit is stalled now dosent mean it will never be surface mined. With a coal state republician as speaker of the house. A bill hand cuffing the EPA’s purse strings has a possibility of passing easily. In the senate, with president Obama wanting to continue his great social entitlements, a deal with one of many coal state senators is a GREAT possibility. Earmark it to the Student loan give away that the president so dearly wants and says we need and its as sure as signed. The EPA out of MTR enforcement money. While most americans care about the enviroment, in these economic times with almost 10 million out of work, many can understand loosing a job and worring about paying your bills. With the rally comming up the 20th it will be interesting to see if a bill to handcuff the EPA is mentioned. Let the Fireworks begin.

  17. cindy rank says:

    Aaron and rhmooney3,

    I think it would be wrong to assume EPA did nothing or even implicitly confirmed/approved the Corps permit when it was granted.

    Indeed the documents Ken cites in this blog indicate EPA did what i’m sure any industry supporter would want the agency to do with regard to their objections — i.e. they worked with the company and the Corps to resolve their differences….

    EPA didn’t just charge blindly out of the gate to veto the permit on the spot, but rather took great pains to work through a reasoned and defensible review process that should have been undertaken prior to approval by the Corps.

    As part of that process the EPA continued to accumulate more information and to clarify the processes and scientifically based measurements that should be used to evaluate such applications. The end result is the very detailed ‘guidance’ issued April 1, 2010 which has been implemented to evaluate the various mining applications in the Corps pipeline.

    [As Ken and others have noted a couple of those applications have been approved. And it’s my understanding from the EPA website updates other applications have been withdrawn or are being reworked and others are still moving through the scientifically based review process as originally submitted.]

    Bottom line is EPA’s veto of the Spruce #1 permit comes only after a great deal of intense study, discussions and debate focused on Spruce #1 in particular (and similar permits as well) by several agencies, the coal industry, state and federal officials and members of the public these past few years.

    Upon consideration of the increasing scientific evidence of harmful impacts posed by the Spruce permit and reaching a standstill in talks with the company, EPA took the final step of issuing the veto. The agency knew full well that the company and others would challenge their decision and has prepared for the challenge by doing a thorough job of documenting the reasons for what has to be a legally, scientifically and morally defensible veto.

  18. rhmooney3 says:

    Cindy,

    I fully and completely agree with you — my only point is that EPA did not have to approve or disapprove the permit as the Corps had the authority to do it.

    I don’t disagree at all with the EPA’s action although, as I had noted, its environmental justice findings were very generic to almost anywhere in Appalachia.

    What comes next is a lot of additional attorney work that will likely raise this to the U.S. Supreme Court. It’s far from being a final decision.

    The only thing that will bring an end to the fight over Mountain Top Removal (or Development) coal mining is for electric customers in other states to demand their utilities stop using it.

  19. Casey says:

    I believe that the War on Coal should not be used with quotes as it is not some fictional creation for PR use but is indeed real. EPA’s findings for Spruce can be applied to almost every permit in Appalachia (issued and pending).

    All land uses create negative effects on the environment. The decision to allow is based on the general good to society. The War on Coal is a policy by the Feds to reduce coal usage and the attack is being initiated at the margins. In the future this policy, if left unchecked, will be applied extensively with abundant economic harm for all. There is a “lot of ways to skin a cat” as Obama’s violent and cruel reference states and here we go.

  20. Coal is waging the War, a “scorched earth” war of pillage, destruction, and death. Eviscerated mountains, buried headwaters and blackwater streams, poisoned air and water, and a continuing flight of “refugees” who leave the blighted areas in droves. Then, to add, climate destruction.

    So who is the offensive? Coal. So some of us try to defend the land and people. Yes, I war against coal…to defend.

    Truth-telling is a powerful weapon. Thanks, Ken. Your facts help! But can truth-tellling hold up to coal’s powerful, money-fueled propaganda?

  21. rhmooney3 says:

    Allen,

    Large-scale surface coal mining commenced in the 1940s and really got going in the 1950s with the huge electric shovels — Giant Earth Movers (GEMs).

    What is happening in southern West Virginia and eastern Kentucky occurred in western Kentuck, southern Illnois, southern Indiana and southeastern ohio many decades ago.

    I began seeing it in the mid-1950s and in 1975, just out of college, I began inspecting it as an Ohio reclamation inspector.

    Many communities and lives have been disrupted by coal mining in many ways — including hundreds who have died wrongfully within the mines — and many have put food on the table from it…including me.

    Coal mining has been good to this country and it is still needed for now.

    Yes, there is a need to get away from burning coal for electricity just as there is a need for many other changes.

    If you believe the impacts from coal mining are horrific now, those were much worse not that long ago.

    Yes, things need to be better and can be.

  22. Leon Wood says:

    This is the begining of the end for the EPA Congress now will disband the EPA

  23. PlethoDon Juan says:

    I wouldn’t count on it Leon. As long as there are wetlands to protect, streams to repair, drinking water to keep clean, air to breathe, polluters spewing toxic materials, people who need clean sources of life’s basic needs, etc. there will always be a need for an agency charged with keeping these natural resources reasonably safe for everyone. I imagine the public outcry would be deafening if any proposal to abolish the EPA were to gain any considerable support. The EPA has survived much more hostile conditions in past Congresses and right-wing administrations. The EPA does so much more than just protect waters of the United States. Did you know that the majority of EPA’s annual budget goes directy to the States in the form of grant money? I think many States would cry foul if those sources of funding for protective infrastructure were to dry up. So I don’t believe it is in anyone’s (except polluters and those who profit from them) best interest to disband the EPA.

    So one permit got vetoed. One out of thousands. Two streams were protected. Meanwhile thousands of miles more have been buried, obliterated, or otherwise made foul. The coal industry’s fears are substantial but I really have a hard time understanding how such a powerful group feels threatened by the EPA. EPA hardly has the resources to do the job it is doing and with the tides of politics holding the purse strings there is usually very little time between hostile administrations to pursue any meaningful cause to an effective conclusion. Solutions to this, much like the impacts, need to be considered in the long term…decades at least…in order to be realistic. Coal may not be going anywhere but neither is the EPA.

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