| Cindy Rank has generously provided permission to reprint this article from the February Highlands Voice, the monthly newsletter of the West Virginia Highlands Conservancy.
By Cindy Rank
From WV Highlands Conservancy's perspective as the organizational plaintiff in the 1998 Bragg v Robertson litigation, this Environmental Protection Agency (EPA) veto of the Clean Water Act (CWA) 404 fill permit for Spruce #1/Pigeonroost has been long in coming but is much welcomed. Agency personnel deserve a great deal of gratitude for the work they have done to make it happen at long last.
Of course in the midst of celebratory moments we need also pause to remember the late Sibby Weekly who endured far more than any person should have to during the years of fighting for her home. And of course Sibby's husband Jimmy who still lives on his family homeplace in Pigeonroost hollow at the foot of the mountain where mining in Seng Camp (the northern portion of the Spruce #1 permit) continues ... and is not part of the recent veto.
And then there is the 'spin'. Among the more frustrating aspects of the EPA veto is the mileage gained by industry supporters from the misstatements and misleading information intentionally promoted by industry reps, and even our Congressional and state leaders, misinformation that is repeated and published in whatever media outlets are willing to give space to their statements without investigating for further accuracy.
For purposes of this February issue of the Highlands Voice John McFerrin has included some of these details in his concise summary of the veto itself, but allow me to focus on just a few of what I consider the major misleading myths.
Myth #1 - EPA granted then revoked the Spruce #1 permit
[Or, as John McFerrin would describe it, the "EPA offered a cookie and then jerked it back"]
FALSE - The Army Corps of Engineers approved the Clean Water Act (CWA) Section 404 (fill) permit for the Spruce #1 coal mine - not EPA.
However, the Clean Water Act designates EPA as lead agency overseeing ALL CWA permits and has given the agency final veto authority over CWA permits - whoever approved them. In the case of the Spruce #1 permit, EPA determined the environmental impacts of the planned mine to be unacceptable and that a veto was warranted by science and the law.
[Again, as John McFerrin has said, industry and its supporters are using a lawyer trick. If you can't win on the merits (your guy is guilty as sin) then complain about the procedure. If they're wrong on the procedure, what do they have left?]
BACKGROUND - The confusion arises from a somewhat unique set of shared authorities established when the Clean Water Act became law in the early 1970's.
i.e. When writing the Clean Water Act Congress incorporated the Army Corps' historic role and authority established under Section 10 of the Rivers and Harbors Act of 1899 (and amended several times after that). Section 404 of the Clean Water Act specifically designates the Corps to be responsible for approving dredge and fill activities in waters of the U.S. and outlines considerations that need to be made when reviewing applications for Section 404 permits.
To assure the basic tenets of the Clean Water Act are enforced properly the Environmental Protection Agency (EPA) was given the authority to oversee ALL activities - including those taken by the Corps under Section 404 of the Act. To accomplish this, the EPA was given the authority to have input to and comment on 404 permit applications, and in the event approval of permits by the Corps were determined to contradict the fundamental protection measures of the CWA, the EPA is authorized to VETO those actions.
EPA has exercised its Section 404(c) authority only 13 times in its forty year history. See... http://www.epa.gov/region03/mt...
Myth #2 - EPA did nothing for three years after the Corps granted the permit. This decision was totally unexpected - It came out of the blue.
FALSE - during the decade long discussion, debate and study of the Spruce#1 application EPA consistently voiced its concerns about the permit, worked with the company and Corps to resolve those concerns, and continued to gather documentation about the damage already being done in the area proposed to be mined. The US Fish and Wildlife Service also continued to voice concerns, but in the end the Corps basically thumbed its nose at those concerns and approved the permit.
BACKGROUND: For the three years following Corps approval of the permit EPA continued to gather the information about the growing body of knowledge about the impacts of mining in the watershed area and how the Spruce permit would contribute to further degradation. The agency carefully followed procedures in Section 404 about preparing documentation and allowing ample time for company and Corps response and public input to the proposed determination to veto the permit, all the while working with the Corps and the company to resolve long standing objections.
The painstaking and mind-numbing detail of EPA's efforts documented in the 226 page final determination document (PDF), especially in the first 25 pages of history, are more than proof that this decision could not possibly have come as a surprise to anyone involved with state and federal agencies or politics these past twelve years.
Myth #3 - OPTIONS - EPA was never serious about considering alternatives that would allow mining to proceed
FALSE - EPA hired a well known and respected engineering group to suggest alternative mining methods that would reduce the stream impacts of the permit without overly restricting the amount of coal produced from the site. There is no indication that Arch Coal had or has any intention of proposing to use one of the suggestions detailed in the September 2010 Morgan Worldwide report. Nor is the company proposing a different option of its own despite EPA's efforts to work with the company.
As originally proposed the mine was to encompass 3,300 acres [nearly 5 square miles]. The original area was reduced to 2,278 acres as a result of an earlier EIS and input from the same engineering firm but did not reduce the environmental impacts enough to warrant approval - hence the ongoing attempts to consider further changes to the mine plan and EPA's contracting with Morgan Worldwide to suggested alternatives to further reduce the impact area.
Whether the company is unwilling to absorb the additional cost involved with the proposed alternatives, or even if EPA would be willing to accept any of those alternatives as sufficient to justify the permit remains to be seen. [... From my reading of the proposed alternative mine plans, I personally can't imagine any of them could sufficiently reduce the cumulative impacts EPA cited as reasons for veto. ]
MYTH #4 - EPA had no valid reasons to VETO.
FALSE - One need only to read the over 200 hundred pages of the final determination document and Appendices to see how ridiculous this claim is.
And if someone thinks EPA hasn't taken seriously the challenges from industry and government officials one need not look any further than the 309 pages of detailed responses to comments and questions submitted during the public comment period (PDF) for the proposed determination to veto the 404 fill permit for the Spruce #1 mine.
BACKGROUND - In addition to the environmental impacts to stream quality and aquatic life cited by EPA as support for its veto and partially listed in John's summary article in this issue of the Voice, the irreversible negative impacts experienced by people depending on those streams and local wildlife, were clear in comments from, meetings with, and testimony by residents of Blair and other nearby communities to EPA during the programmatic Mountaintop/Valley Fill EIS (1998-2005) and to the WV state Governors Task Force on Mountain Top removal and to legislative and Congressional hearings this past decade.
Twelve years later EPA has that much more documentation of stream degradation from these mining operations and negative impacts to fish and other wildlife. ... Twelve years later there is an explosion of individual communities and directly impacted citizens speaking out and relating similar experiences.
The negative impact of these big mines is disproportionately high in the mostly lower income mountain communities of Appalachia. This is true in Blair, and Lindytown and Twilight and Mud and Sharples and Kayford and Whitesville and Edwight and Sylvester and Prenter and so many other small communities throughout southern West Virginia, eastern Kentucky southwest Virginia and parts of Tennessee, one can only hope concern for these environmental justice issues will not end with this one permit. |
