EPA Pulls the Permit for Arch Coal’s Mountain Top Mining

EPA on Jan. 13 revoked the permit for a controversial mine that proposed taking the tops off of some of West Virginia’s mountains. Mingo-Logan Coal Co.’s proposed Spruce No. 1 Mine has been controversial since the Bush administration in 2007 issued the company the permits necessary to move forward with the mountaintop mining operation in Logan County.

After extensive scientific study, a major public hearing in West Virginia and review of more than 50,000 public comments, EPA said it was using its authority under the Clean Water Act (CWA) to halt the proposed disposal of mining waste in streams at mine site. The agency said it “is acting under the law and using the best science to protect water quality, wildlife and Appalachian communities, who rely on clean waters for drinking, fishing and swimming.”

EPA has used this CWA authority in just 12 circumstances since 1972 and reserves this authority “for only unacceptable cases.” The administration last year moved to rescind the CWA Section 404 permit, a move applauded by environmentalists and residents but criticized by the state of West Virginia, Arch Coal and coal industry interests.

“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,” said EPA Assistant Administrator for Water Peter S. Silva. “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 waters. We have a responsibility under the law to protect water quality and safeguard the people who rely on clean water.”

The proposed mining operation would have involved dynamiting the tops off mountains over an area of 2,278 acres. The rubble would have been dumped into nearby valleys and streams, killing fish and other wildlife. EPA had several, major environmental and water quality concerns about the project, which would have:

  • Dumped 110 million cubic yards of coal mine waste into streams.
  • Buried more than 6 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.

EPA’s final determination on the Spruce Mine came 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 of 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.

“We breathe a huge sigh of relief today and we thank the EPA and the Obama administration for enforcing the Clean Water Act,” said Janet Keating, executive director of the Ohio Valley Environmental Coalition. ”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.“

Kim Link, a spokesperson for Arch Coal, parent company of the Mingo-Logan Coal Co., said the company plans legal action, claiming EPA’s action is blocking $250 million in investment and 250 jobs. She also claimed the agency’s action would impact other businesses and industries. “Every business possessing or requiring a permit under Section 404 of the Clean Water Act will fear similar overreaching by the EPA,” said Link.

Not surprisingly, a group called The Federation for American Coal, Energy and Security (FACES of Coal) called the move to block the permit an “assault on the U.S. economy.”

“Today's unprecedented action by the EPA offers more proof that this administration and EPA are paying lip service to the employment and economic challenges this state and our country are facing,” said Bryan Brown, West Virginia executive director of FACES of Coal. “Every road project, construction project or mine site that has received valid CWA 404 permits in the past is now in jeopardy of having that permit vetoed or revoked. It's absurd.”

Former West Virginia governor and current senator Joe Manchin is not happy with the decision, saying, “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.”

Groups as diverse as the National Cattlemen’s Beef Association and the National Realtors Association have joined together to ask that the permit be approved, saying the implications of revoking the permit “could be staggering” and could subject entities in the agriculture, home building, mining, transportation and energy sectors “to the same unilateral, after-the-fact revocation.”

Jon Devine, a senior attorney in the Water Program at the Natural Resources Defense Council, commented, “In the face of the political and industry forces pressuring EPA to ignore the damage this mine would cause, it took guts for the agency to follow the science and the law. The agency made the right decision to prevent the destruction that would have been caused by this enormous mountaintop-to-moonscape project.

“Now, he added, “EPA needs to apply the same scientific rigor to all other pending mountaintop removal proposals and it must enforce the Clean Water Act to permanently protect Appalachian communities.”

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