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Late last week — just before the Labor Day holiday — the Obama
administration EPA issued a mountaintop removal bombshell: A major
letter that blasts a whole host of problems with the largest strip-mining permit ever issued in the
state of West Virginia.
EPA experts have concluded that the mine, as currently designed
and permitted, would violate the federal Clean Water Act. They’ve
urged the Army Corps of Engineers to suspend, revoke or modify the
permit. In response, Corps lawyers have asked U.S. District Judge
Robert C. Chambers for a 30-day stay in legal proceedings over this
permit, to give Corps staffers time to re-examine the project.
I’ve posted a copy of the EPA letter to the Corps here, and a copy of the Corps’ legal
motion here. The letter was dated last Thursday
and the legal motion was filed the following day.
In the five-page letter, EPA experts express grave concerns about
the mine’s “potential to degrade downstream water quality,
and to cause or contribute to potential excursions of West Virginia’s
narrative water quality standards.â€
EPA also cautioned that “additional valley fill
minimization techniques such as further backstacking material on-site
where appropriate, inclusion of sidehill fills with stream relocations,
or other design modifications to ameliorate water quality impacts need
serious consideration†from the company.
And, EPA said that “scientific and field observations
strongly suggest that compensatory mitigation measures heretofore
accepted by the U.S. Army Corps of Engineers, such as on-site stream
creation, may not result in functional replacement with specific
performance criteria.â€
Read on for more on the EPA letter …
The Corps approved this permit — all 2,278
acres and 8.3 miles of valley fills and other stream-filling — back
in January 2007. The proposal was scaled back slightly, from more than
10 miles of valley fills and 3,113, acres, from the original Spruce No.
1 Mine, proposed for the Pigeonroost Hollow area of Logan County, near
Blair.
For those who don’t recall, this was one of the major
mountaintop removal permits that was the subject of the early public
protests and legal actions against the practice back in the late 1990s.
Judge Charles H. Haden II blocked the permit, which Arch Coal Inc.
had hoped would allow it to continue operations of its Dal-Tex complex.
But when Arch couldn’t come up with a permit that would pass legal
muster, the operation closed and more than 300 UMWA members lost their jobs.
Updated to clarify: Arch Coal has shifted the Spruce Mine to its
non-union subsidiary, Mingo Logan Coal.
Work on the permit continued though, and as far as I know, this is
the only individual mountaintop removal permit for which regulators
have ever completed a formal Environmental Impact Statement.
After the Corps issued the Clean Water Act permit for the mine
more than two years ago, environmental groups asked Chambers to block
the operation as part of a larger suit pending over Corps’
permitting practices. Since then, Chambers has ruled against the Corps, demanding more
rigorous permit reviews. The 4th Circuit Court of Appeals overturned that decision. But, the Spruce
Mine was not one of those that Chambers had specifically blocked. The
permit remained in front of the court, but the company agreed to only
operate on part of the site, to avoid another legal skirmish while
waiting for the appeals court decision.
Back in July, the company cited that 4th Circuit decision in asking Chambers to
dismiss the legal action against the Spruce Mine. Since
then, Chambers has several times given the Corps more time to respond
to the company’s request.
While officials from the Manchin administration here in West
Virginia have complained that EPA has little in the way of
evidence — or at least new evidence – about the damaging
impacts of mountaintop removal, this new EPA letter on the Spruce Mine
cites “new information and circumstances†since the permit approval
in January 2007 and “recent data and analysis†about downstream
impacts of valley fills.
Among the EPA findings:
– “Recent data and analysis have revealed that
downstream water quality impacts have not been adequately addressed by
the permit, especially in light of clear evidence that effluent from
valley fill sedimentation ponds is very likely to elevate conductivity
and thus negatively affect healthy aquatic communities.â€
EPA reported that the Little Coal River watershed — where
the mine is located — “contains the largest number of impaired
stream miles in the Central Appalachian Ecoregion in West Virginia.â€
But Spruce Fork and the Little Coal River have EPA- and court-mandated
plans to require cleanup of excess iron, aluminum, selenium, acidity,
sediment and fecal coliform bacteria. EPA noted these cleanup plans “identified
mining as a source for many of these impairments, and this project
will likely discharge these same pollutants into these watersheds.â€
– The final EIS for the Spruce Mine stated that “[A]n
increase in total dissolved solids is expected in the early stages of
the project when clearing and filing of each valley fill site begins. EPA
stated, “This temporary increase would be expected to return to
pre-mining conditions as areas are regraded and revegetated … [but] the
scientific literature as well as many state watershed reports have
consistently shown that this assertion is not technically supportable.
According to EPA, “These studies and reports
indicate that surface mining with valley fills in Central Appalachia is
strongly related to downstream biological impairment. They also show
that surface mining impacts on aquatic life are strongly correlated
with ionic strength (conductivity) in the Central Appalachian stream
networks.
EPA concluded: “This increase in conductivity
impairs aquatic life use, is persistent over time and cannot be easily
mitigated or removed from stream channels.â€
– EPA is concerned that the permit and the EIS “do not
reflect the data and analyses and … their implications regarding
water quality impacts associated with surface coal mining.†These
studies together, EPA said, “strongly suggest that further
water quality degradation and water quality exceedences may occur as a
result of new mining activities at Spruce No. 1 Mine.â€
EPA also noted that there are 11 additional mining projects
proposed within the Coal River Sub-basin, including four pending
permits under consideration within the Obama administration’s enhanced permit review process. These 11
projects would impact nearly 34 miles of streams, EPA said. Also, there
are six other permits which have been issued by the Corps, but for
which work has not yet commenced because of ongoing litigation.
EPA added:
In light of these potential significant cumulative impacts
to the watershed and latest information about water quality impacts
associated with surface mining with valley fill operations, the
mitigation plan should be re-evaluated to ensure that we are achieving
functional replacement of the lost aquatic resources.
The mitigation plan included the creation of on-site stream
channels through the use of sediment ditches. EPA has
consistently objected to the use of these ditches as compensation for
lost headwater stream channels. These channels are often only evaluated
for success utilizing structural performance critieria, and not
incorporating biological and chemical performance criteria to ensure
success.
Without monitoring to ensure restored or created streams
provide chemical, physical and ecological functional replacement for
streams being destroyed by mining activities, these channels will only
serve as a conduit for pollutants from the site to downstream waters. It
is unlikely that the proposal as permitted will achieve functional
replacement.
EPA concluded by proposing that the Corps prepare a supplemental
EIS to try to address these new issues and concerns …
