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The Charleston Gazette, October 16, 2009

Huge MTR news: EPA moves to veto Spruce Mine permit
By Ken Ward, Jr.

U.S. Environmental Protection Agency officials today announced the gigantic news that they have formally moved to veto the Clean Water Act permit for the largest mountaintop removal mine in West Virginia history.

Details of the action are just now coming out, but EPA has been warning since early September that it would do this if the federal Army Corps of Engineers and Arch Coal Inc. officials did not do more to reduce the environmental impacts of the company’s proposed Spruce No. 1 Mine in Logan County, W.Va.

In a statement just issued, EPA said:

EPA is taking this action because it is concerned about the magnitude, scale, and severity of the direct, indirect, and cumulative adverse environmental and water quality impacts associated with this project . The Spruce Mine as currently configured would bury more than seven miles of streams.

I’ve posted a copy of EPA regional administrator Bill Early’s letter to Corps of Engineers District Commander Robert D. Peterson here.

Early wrote the letter to inform Peterson that EPA plans to issue a public notice that it has determined the Spruce Mine, as currently designed, “may result in unacceptable adverse impacts to fish and wildlife resources.” Under the law, that notice is EPA’s first step toward officially vetoing the Corps’ approval of this highly controversial permit.

In the letter, Early explained:

We are taking this unusual step in response to our very serious concerns regarding the scale and extent of significant environmental and water quality impacts associated with the Spruce No. 1 Mine … 

The Spruce No. 1 Mine represents the largest authorized mountaintop removal operation in Appalachia and occurs in a watershed where many streams have been impacted by previous mining activities.

While we recognize that the project has been modified to reduce projected impacts, the project will still bury more than seven miles of streams and additional analyses by EPA and in a TMDL by the West Virginia Department of Environmental Protection and approved by EPA provide evidence that there is the potential for its associated discharges to cause further stream degradation.

This move by EPA is certain to draw more attacks on the agency from Gov. Joe Manchin, other West Virginia political leaders and the mining industry. But let’s remember that the veto of the Spruce Mine permit comes just a day after EPA revealed that it had reached a deal with Patriot Mining that should allow that company to move forward with a huge permit to expand its Hobet 21 complex along the Boone-Lincoln County line.

In addition, Early emphasized in his letter to the Corps that, because of “the magnitude and scale of anticipated direct, indirect, and cumulative adverse environmental impacts associated wit this mountaintop removal mining operation” EPA’s move to veto the project:

… Represents an unusual set of circumstances we do not expect to be repeated again.

Environmental groups have been fighting the Spruce Mine since 1998, when it was proposed as a 3,113-acre mine that would bury more than 10 miles of streams in the Pigeonroost Hollow area near Blair. Arch Coal had proposed it as a continuation of its Dal-Tex mountaintop removal operation.

U.S. District Judge Charles H. Haden II blocked the permit, prompting Arch Coal to close Dal-Tex and lay off more than 300 UMW members employed there. Since then, Arch has continued to seek the permit but shifted it to a non-union subsidiary, Mingo Logan Coal Co. Along the way, Arch Coal has also sold most of its Appalachian holdings, and is focused primarily on coal production in Wyoming’s Powder River Basin.

As I wrote at the time, Haden in his ruling did try to not downplay the potential economic harm to the company and its employees:

Hobet has made a significant investment in the Spruce Fork mine, considering the cost of the operation itself, the cost of purchasing homes around the proposed mine, and preparing permit applications.

However, Haden ruled that, when it wrote federal mining laws:

Congress recognized the need to ensure the balance is maintained among protecting the environment, protecting the citizenry and coal industry. Nonetheless, against a backdrop of prior mining with little environmental regulation, it is clear the laws’ primary protections extend to the citizenry and the environment.

Concerning the impacts of mining, Haden wrote:

If the forest canopy of Pigeonroost Hollow is leveled, exposing the stream to extreme temperatures, and aquatic life is destroyed, these harms cannot be undone.

If the forest wildlife are driven away by the blasting, the noise, and the lack of safe nesting and eating areas, they cannot be coaxed back. If the mountaintop is removed, even Hobet’s engineers will affirm that it cannot be reclaimed to its exact original contour.

Destruction of the unique topography of Southern West Virginia, and of Pigeonroost Hollow in particular, cannot be regarded as anything but permanent and irreversible.

At the time, UMW President Cecil Roberts criticized Haden’s ruling and the fact that his members were “caught dead in the middle.”  But Roberts also had this to say about the whole mountaintop removal issue:

I’m not an advocate of knocking every mountain in West Virginia down. Quite frankly, we ought to take an assessment of how much coal should be mined this way, but we could have done that in a lot more intelligent way.

These jobs should be maintained. But at the same time, we shouldn’t be knocking people’s houses down.

Later, the Corps actually pulled its approval of the Spruce Mine permit — after trying to do so secretly — saying it had “virtually no chance” of winning a lawsuit over its approval of the mine through the streamlined “nationwide” permit process that the Obama administration is now trying to get rid of.  Instead, the Corps told Arch Coal it needed to resubmit its application, this time through the more detailed “individual permit” process.

In January 2007, corps officials issued an individual permit for a slightly scaled back version of the Spruce Mine, a nearly 2,300-acre mine. The corps said the new version of the mine reduced environmental impacts, while allowing Arch Coal to reach about 75 percent of its coal reserves:

The applicant made additional modifications to further avoid and minimize impacts to the environment, while satisfactorily meeting the purpose and need for the project

Soon after that, environmental groups sought to have U.S. District Judge Robert C. Chambers block the permit.

The Spruce Mine was not among those halted by a March 2007 ruling by Chambers or directly affected by the 4th U.S. Circuit Court of Appeals decision overturning Chambers.  Company lawyers reached a “stand-still” agreement with environmentalists, limiting mining and stream-filling activities while the 4th Circuit heard the appeal. Last year, Mingo Logan reported having about 30 workers and mining about 600,000 tons of coal at the site.

Since July, Arch Coal has been citing the 4th Circuit decision in asking Chambers to end a court challenge to the Spruce Mine approval.  Mingo Logan lawyer Bob McLusky said in a court filing:

[The company] has constructed fills, ponds and conducted mining, but in a constrained manner since early 2007. 

As part of that effort, Mingo Logan has deployed millions of dollars in capital and put dozens of persons to work, but must soon develop more fill capacity or cease operations.

The Spruce Mine is without question the most reviewed strip mine in history, having gone through a formal Environmental Impact Statement — something I don’t believe has ever been done on any other specific mountaintop removal proposal.

But … in its letter Friday, the EPA outlines major areas of concern that its staffers still don’t believe have been adequately addressed:

Environmental and water quality impacts –  The Spruce No. 1 Mine will affect streams that empty into the Little Coal River and the Coal River. Already, a full third of the streams in the Little Coal watershed are impaired and nearly as much of the Coal is impaired. The mine’s drainage — Pigeonroost Branch and Oldhouse Branch — are not listed as impaired, and may be providing clean freshwater that is helping to dilute the downstream waterways, providing some measure of protection there.  Mining and filling associated with the Spruce Mine could change that, adding to the downstream problems.

– Cumulative adverse impacts — At least 12 mining operations are either propsed or authorized, but not yet started, in addition to the Spruce Mine, in the Coal River sub-basin. In all, these mines could impact nearly 36 miles of streams. EPA is concerned that the cumulative impacts “have not been sufficiently analyzed” and wants to “ensure that a robust cumulative impacts analysis has been undertaken.”

– Mitigation — EPA noted that the Spruce Mine permit contains requirements for monitoring for biological and chemical functions, as well as habitat. But, the agency said, the permit does not appear to identify actions “to be taken when the monitoring being conducted indicates the biological and chemical parameters are being adversely impacted.”

Under Section 404(c) of the Clean Water Act, EPA may override Corps decisions to grant valley fill permits. EPA can do so only after first issuing a public notice and providing opportunity for public hearings, and if the agency determines that the proposed permit:

… Will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.

Recall that in early September EPA officials urged the Corps to revoke, suspend or modify the Spruce permit, citing a long list of problems with the current mining proposal.  DOJ lawyers then asked and obtained a 30-day stay from Judge Chambers on Arch Coal Inc.’s efforts to have the permit tossed from an environmental group lawsuit still pending before the judge.

Arch Coal had strenuously objected to the stay,  and political leaders including Manchin and Sen. Jay Rockefeller jumped in to complain about EPA’s actions. The Corps also refused to go along with the additional review that EPA sought, setting up a showdown between the two agencies.

It’s worth reviewing exactly what procedural step EPA has taken here, and the agency has a helpful Fact Sheet about Clean Water Act Section 404(c) — commonly called EPA’s “veto authority” — on its Web site.

Under this section, before it can actually veto a Corps permit approval, EPA has to go through a number of steps, including seeking public comment and, usually, holding a public hearing. All EPA has announced today is that it has notified the Corps that is starting the process, by informing the Corps of its intention to issue a public notice of a Proposed Determination to withdraw, prohibit, deny or restrict the discharge of fill material proposed by the Spruce Mine.

Next, EPA has to publish a Federal Register to announce this Proposed Determination to the public. Then, EPA will have a public comment period and probably a hearing. The corps and the mining company would then get a chance to correct the permit’s flaws before EPA makes a final decision.

EPA has threatened to veto at least one other mining permit this year. But agency officials are continuing discussions with the corps and the mine operator, Central Appalachian Mining of Kentucky, toward a resolution of water quality concerns surrounding that permit.

Use of the EPA’s 404(c) veto authority is extremely rare. The corps processes about 80,000 Clean Water Act permits a year, and EPA has used its veto authority to block permits only 12 times since 1972.

The move against the Spruce Mine is part of the Obama EPA’s ongoing effort to take “unprecedented steps” to reduce the environmental impacts of mountaintop removal in Appalachia.

In the Friday letter, EPA said its staffers have “worked hard to assess the effects of surface coal mining on water quality in streams below mining activities.” The letter goes on:

What we have learned is compelling and further substantiates the scientific literature that points to a high potential for downstream water quality excursions under current mining and valley fill practices.

EPA said that in 80 percent of the streams it assessed, it found two results:

First, in streams where valley fills were proposed but not yet constructed, water quality was within scientifically defensible, acceptable levels to support native aquatic life;

Second, in the streams where valley fills or mining disturbances were evident, water quality as measured by conductivity levels was substantially above levels believed to cause excursion of water quality standards or significant degradation …

Remember what EPA Administrator Lisa P. Jackson testified to Congress yesterday when questioned by Rep. Shelley Moore Capito, R-W.Va., about the agency’s concerns about mountaintop removal:

What we’re seeing with the science here is that as these watersheds have more and more valley fills in them, frankly, we see water quality impacts. We believe that over time that is going to be a larger problem, not a smaller problem. What really has to happen is rolling up the sleeves to minimize in these instances.

The Charleston Gazette © 2009

Photo © Paul S. Hamilton