E.P.A. Suggests Veto of Mine Permit Under the Clean Water Act

WASHINGTON - The E.P.A. (EPA) today announced its suggestion under the Clean Water Act to significantly restrict or prohibit mountain top mining at the Spruce No. one surface mine in Logan County, W. Va. Spruce No.1 mine is one of the biggest mountaintop removal operations ever suggested in Central Appalachia. The plan was permitted in 2007 and subsequently delayed by litigation. The Spruce No. one mine would bury over seven miles of headwater streams, directly impact 2,278 acres of forestland and degrade water quality in streams adjacent to the mine.

EPA's suggested determination comes after extended discussions with the company failed to produce an arrangement that would lead to a significant decrease of the environmental and health impacts of the Spruce No. one mine.

"Coal, and coal mining, is part of our nation's energy future, and for that reason E.P.A. has made repeated efforts to foster dialogue and find a responsible path forward. But we must prevent the significant and irreversible damage that comes from mining pollution -- and the damage from this plan would be irreversible," said E.P.A. Regional Administrator for the Mid-Atlantic, Shawn Garvin. "This recommendation is consistent with our broader Clean Water Act efforts in Central Appalachia. E.P.A. has a duty under the law to protect water quality and safeguard the people who rely on these waters for drinking, fishing and swimming."

E.P.A. has used its Clean Water Act veto authority in just twelve circumstances since 1972 and never for a previously permitted project.

The suggested determination, signed today by Regional Administrator Garvin, identifies numerous potential adverse impacts associated with the Spruce No. one project:


· Water Quality Impacts: The mine will cause adverse impacts to drinking water, native aquatic and water-dependent communities in the Spruce Fork watershed. Drainage from the Spruce No. one plan is likely to include high levels of total dissolved solids (TDS) and selenium which adversely affect the naturally occurring aquatic communities. These include birth defects in fish and other aquatic life and can also result in toxic effects to embryos, resulting in abnormal development or death for those organisms.

· Fish and Wildlife Impacts: Mining waste placed into headwater streams will impact fish and wildlife which depend for all or part of their lifecycles on these headwater systems. Ecosystem functions performed by headwaters are lost when the headwater stream is buried or removed. These functions are lost not only to the headwater stream itself, but also to downstream aquatic ecosystems.

· Mitigation Impacts: The project's mitigation project inadequately evaluates the nature and extent of mining related aquatic impacts and therefore fails to replace streams' lost ecological services. Natural stream channels buried by mining will be replaced, in part, by ditches being built to drain stormwater off of the mine, not to compensate for natural stream losses. These ditches will also drain water contaminated by mining into streams adjacent to the mine.

· Cumulative Mining Impacts: E.P.A. believes that the Spruce No. one project, in conjunction with numerous other mining operations either under construction or suggested for the Coal River basin, will contribute to the cumulative loss of water quality, aquatic systems, and forest resources. The Coal River basin is already heavily mined and substantially impaired. Landscape and location specific assessments reveal that past and current mountaintop mining has caused substantial, irreplaceable loss of resources and an irreversible effect on these resources within the Coal River basin.

CWA Section 404(c) authorizes E.P.A. to restrict or prohibit placing certain pollutants in streams, lakes, rivers, wetlands and other waters if the agency determines that the activities would result in "unacceptable adverse impacts" to the environment, water quality, or water supplies. This authority applies to suggested plans as well as plans previously permitted under the CWA. A final decision to restrict or prohibit the Spruce No.1 mine will be made in E.P.A. Headquarters based on a recommendation from the Regional Administrator, public comments, and discussions with the Army Corps of Engineers and the Mingo Logan Coal Company.

The suggested determination is being published in the federal register and E.P.A. is taking public review for 60 days. E.P.A. is also scheduling a public hearing in West Virginia to provide an additional opportunity for public input.

The suggested determination: http://www.epa.gov/region03/mtntop/spruce1documents.html

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