The EPA put its promise to protect mountain streams into action today, taking a rare first step toward vetoing a permit for the largest mountaintop mining operation in Appalachia.
The agency has used that authority only 12 times since the Clean Water Act was enacted in 1972. And it has never vetoed a water permit for an already-approved mine.
“That it is necessary in this circumstance to initiate Section 404(c) review reflects the magnitude and scale of anticipated direct, indirect and cumulative adverse environmental impacts associated with this mountaintop removal mining operation,” William Early, acting administrator for EPA Region 3, wrote in a letter today notifying the Army Corps of Engineers of the decision.
Under the Clean Water Act, the Corps issues permits that allow strip mining companies to push their mining debris into adjacent valleys with streams, but the EPA has the power to review those permits and order changes.
If the Spruce No. 1 mine were allowed to continue as planned in Logan County, W.Va., Early writes, it would bury seven miles of streams in the Coal River sub-basin, in a watershed where one-third of the streams have already been degraded by mining activity. The mining debris carries metals such as nickel, lead, cadmium, iron and selenium that can leach into the water, contaminating the streams and often nearby wells.
Early emphasizes that the Spruce No. 1 mine "represents an unusual set of circumstances we do not expect to be repeated again."
However, his letter also suggests that the standard procedures used by the Corps for issuing water permits to mining operations weren’t strong enough because they didn’t sufficiently consider the impact downstream:
"With respect to water quality, we recognize that the Corps has followed applicable procedural steps; specifically, procuring a certification from the state pursuant to Section 401 of the Clean Water Act, relying upon the National Pollutant Discharge Elimination System (NPDES) permit, and reviewing analyses of hydrologic consequences prepared pursuant to requirements of the Surface Mining Control and Reclamation Act, that are intended to ensure water quality is protected.
“Nevertheless, EPA believes the analyses relied upon by the Corps did not sufficiently consider the potential impact of this project with respect to narrative criteria and downstream aquatic life uses. As described in more detail above, the collective science strongly suggests that projects similar to the Spruce No. 1 project are associated with impairment of downstream aquatic life use.”
The letter cites potential impacts on 50 or so endangered, threatened or rare species in the river basin, including birds and salamanders, that rely on a healthy river system for either food or habitat.
Early is also critical of West Virginia’s Approximate Original Contour Plus policy for strip mining mountains, saying it “sets minimally acceptable methods” when “every effort should be employed to maximize avoidance to aquatic resources.” The effects of that policy are discussed in the new Yale Environment 360 documentary Leveling Appalachia.
The regional administrator’s letter to the Corps is only one step in a long process. It formally notifies the Corps that the EPA intends to issue a public notice of a proposed determination to restrict or prohibit valley fills at the Spruce No. 1 mine. The Corps and mine owner Mingo Logan Coal Company, an Arch Coal subsidiary, will still have the opportunity to make changes to the mining plan, and the EPA could eventually allow the permit.
For that to happen, Early writes that the EPA wants:
* the mine owner to do more to minimize the impact of the project on waterways and to allow monitoring for each portion of the project;
* the Corps to change the permit so it requires specific actions by the company if monitoring data shows serious changes in the water quality, and so it more clearly specifies both the criteria for successful mitigation and the steps to be taken if those criteria are not met;
* and it wants the Coal River watershed to be assessed for the impact of mining on its water quality and the ecological services it provides the region.
The EPA last month requested that the Corps re-evaluate its approval of the Clean Water Act permit for Spruce No. 1, but the Corps refused, which led to the EPA’s action today. For a more detailed review of the long history and many court fights involved in the Spruce No. 1 saga, read Ken Ward’s post at Coal Tattoo.
The Sierra Club called the EPA’s continued scrutiny of the mine’s permit encouraging. Ed Hopkins, director of environmental quality for the environmental group, lauded the agency for looking closely at the impact of mountaintop removal and for relying on scientific studies.
"Local residents have been actively challenging the approval of this permit at the Spruce No. 1 Mine in Logan County for more than a decade,” Hopkins said, adding that today’s EPA action "underscores the need for the Obama administration to develop new regulations to end mountaintop removal mining once and for all."
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