Spruce 1 Mine

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This article is part of the Coal Issues portal on SourceWatch, a project of CoalSwarm and the Center for Media and Democracy. See here for help on adding material to CoalSwarm.

Spruce No. 1 Mine is an existing surface coal mining operation in Logan County, West Virginia, operated by Mingo Logan Coal and owned by Arch Coal. A proposed expansion of the Spruce No. 1 Mine would make the mine one of the largest in Appalachia; this expansion has been the subject of extensive controversy for over a decade.

EPA began a veto process in October 2009 and issued in March 2010 a preliminary determination that the mine would cause unacceptable impacts. EPA held a public hearing in May 2010, and EPA Regional Administrator Shawn Garvin issued the formal recommended veto in October 2010. On January 13, 2011, the EPA vetoed a Clean Water Act Section 404 "dredge-and-fill permit" that would have expanded the mine.[1]

On March 23, 2012, U.S. District Judge Amy Berman Jackson overturned the EPA veto, saying the agency did not have the authority.[2] On April 23, 2013, a federal appeals court ruled that the EPA's retroactive veto was legal, sending it back to the district court for further consideration.[3]

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History

History from 1997 through September 2010

The following history of Spruce Mine No. 1 from 1997 through September 2010 was compiled by Rory McIlmoil and Laura Hartz of Downstream Strategies as part of a study of the mine expansion prepared for Rainforest Action Network:[4]

1997-1998: Hobet’s Spruce No. 1 mine
As proposed, the Spruce No. 1 mine was to be the largest mountaintop removal mine permit in history, spanning 3,113 acres and creating five valley fills that would permanently fill six miles of streams, and directly impact more than ten miles of streams (USEPA, 2010a). Spruce No. 1 mine was originally permitted by the West Virginia Department of Environmental Protection (WVDEP) to Hobet Mining, Inc., a subsidiary of Arch Coal, Inc., in November 1998. The 404 permit associated with valley fills proposed for the mine was initially approved by USACE in January 1999. However, subsequent events prevented the mine from moving forward in the permit process until 2007.
1998-2000: Contention brews
From its inception, Spruce No. 1 mine incited contention from local landowners and environmental groups. The initial lawsuit attributable to the mine, Bragg v. Robertson (Bragg v. Robertson, 1998), was one of many that contested the legality of issuing a permit for the construction of valley fills in the streams surrounding Spruce No. 1 mine. Initially, the suit included citizens (Bragg et al.) and the West Virginia Highlands Conservancy as plaintiffs, and USACE (Robertson), WVDEP, and the West Virginia Coal Association as defendants. Later, the suit gained the attention of USEPA, who sided with the plaintiffs, and the United Mine Workers of America and members of the West Virginia political establishment, who sided with the defendants. Chief District Judge Charles H. Haden II in the Southern District Court of West Virginia granted an injunction against USACE in March 2009, preventing the agency from further issuing mining permits, but the injunction was stayed as soon as the decision was appealed. The appeal went to the US 4th Circuit of Appeals, where the appeal was upheld on two counts and remanded back to the applicable district court.
2000-2006: Compromise begins
Between 2000 and 2006, most activity on Spruce No. 1 revolved around the composition of various iterations of the Environmental Impact Statement (EIS). Per compliance with the National Environmental Policy Act, USACE filed a notice of intent to complete an EIS in February 2000.The next six years were filled with public scoping meetings, rounds of revisions, and dialogue between Arch Coal, the USACE Huntington District Office, the USEPA Region 3 Office, andthe public. USACE modified the EIS and Arch Coal modified its various permits. Even though the EIS was formally re-drafted at least twice, both the US Fish and Wildlife Service (USFWS) West Virginia Field Office and USEPA Region 3 Office issued formal letters expressing dissatisfaction with the proposed stream mitigation plans contained in the permit. USACE heeded these and other comments and re-formulated the EIS to contain other alternatives; simultaneously, WVDEP and Arch Coal formally modified its National Pollutant Discharge Elimination System (NPDES) permit four times. After rounds of EIS revisions and NPDES modifications, the potential impact from the Spruce No. 1 mine had been reduced to 2,278 acres, six valley fills, and over 42,000 feet of ephemeral, intermittent, and perennial stream channels (USEPA, 2009a). In 2007, NPDES permit modifications authorized 28 different outfalls. The Spruce No. 1 mine also changed hands from Hobet Mining, to another of Arch Coal’s subsidiaries, the Mingo Logan Coal Company. While the Spruce No. 1 EIS and permit applications evolved, regulation of mountaintop removal mining in Appalachia developed in parallel. In 1999, USACE, USEPA, OSMRE, USFWS, and WVDEP filed a notice of intent to prepare a programmatic EIS to standardize the regulation surrounding mountaintop removal in Appalachia. This process was accelerated by the pending suit that contested the legality of valley fills (Bragg v. Robertson, 1998). In February 2005, USACE, USEPA, OSMRE, and USFWS signed a MOU committing to enhanced coordination of valley fill permitting review. Finally, in October 2005, USACE, USEPA, OSMRE, USFWS, and WVDEP released a final programmatic environmental impact statement (PEIS), to “improv[e] agency programs under the Clean Water Act, Surface Mining Control and Reclamation Act, and the Endangered Species Act… to reduc[e] the adverse environmental impacts of mountaintop mining operations and excess spoil valley fills in Appalachia” (USEPA, 2005, p. 1).
2006-2008: USACE and USEPA cooperative efforts wane
From 2006 to 2008, federal agencies continued to modify the Spruce No. 1 EIS and NPDES permit. On September 22, 2006, USACE issued its final EIS for Spruce No. 1 mine; barely one month following its release, USEPA released comments on the final EIS that express concerns with the inadequacy of the EIS. In November 2006, USEPA wrote in the Federal Register that it “continues to have environmental concerns about the project’s contribution to cumulative impacts,…methods used for the stream functional assessment, and the ability of the proposed mitigation to offset impacts to the aquatic environment” (USEPA, 2006, p. 1). USEPA formally offered to help USACE to develop a stream functional assessment protocol. Despite this attempt at continued cooperation, USACE issued the CWA Section 404 permit (199800436-3, Section 10) on January 22, 2007, authorizing the discharge of fill material from the Spruce No. 1 mine, effectively authorizing the commencement of mining on the site. Later that month, Mingo Logan Coal Co. began limited mining activities, and on January 30, 2007, several environmental groups, including the Ohio Valley Environment Coalition, filed suit against USACE for the issuance of the permit (OVEC v. USACE, 2005). While the suit unfolded in federal district court, Mingo Logan Coal Co. agreed to restricts its mining activities while it and the WVDEP modified the NPDES permit for Spruce No. 1 another seven times, totaling eleven different NPDES permit modifications by July 23, 2009. As noted in USEPA’s Proposed Determination published on April 2, 2010 (and described in detail in Section 3), Mingo Logan Coal Co. has, pursuant to the agreement with the plaintiffs, “been operating in a portion of the project in the Seng Camp Creek drainage area, including construction of one valley fill” associated with a limited amount of coal production. Additionally, USEPA notes that Mingo Logan, without objection from the plaintiffs, has expanded operations beyond the area of mining initially agreed upon (USEPA, 2010a). Since 2007, the Spruce No. 1 mine has produced 1.58 million tons of coal and employed an annual average of 24 miners (MSHA, 2010b).
September 2009 – March 5, 2010: inter-agency cooperation fails
Still unsatisfied with the permit, on September 3, 2009, USEPA formally issued a letter to USACE asking that Huntington District Director use discretionary authority to “suspend, revoke, or modify” the Spruce No. 1 mine permit. In the letter, USEPA highlighted the concern that the permit would degrade downstream waters and “contribute to potential excursions of West Virginia’s narrative water quality standards” (USEPA, 2009a, p. 1). USEPA highlighted the recent evidence that valley fills are likely to “elevate conductivity and thus negatively affect healthy aquatic communities” (USEPA, 2009, p. 2). USEPA drew attention to the fact that the USACE’s final EIS included the assumption that high conductivity levels would be only temporary, a fact that was recently shown to be not “technically supportable” (USEPA, 2009, p. 2). Recent scientific evidence suggested that not only are elevated conductivity levels “persistent over time,” but also that they “cannot be easily mitigated” and “are strongly related to downstream biological impairment” (USEPA, 2009, p. 2). USEPA recommended that USACE consider this new information, suspend the permit, and prepare an additional EIS. Demonstrating a renewed interest in MTR, Department of Justice lawyers intervened on behalf of the Obama administration, petitioning US District Judge Robert C. Chambers to allow USACE to revisit the Spruce No. 1 mine permit. Judge Chambers granted the request. However, on September 30, 2009, the USACE Huntington District Director released a statement responding to USEPA’s letter, expressing his refusal to halt the Spruce No. 1 mine permit. He addressed each of the four main concerns expressed by the September 3 letter from USEPA—fill minimization, water quality excursions and significant degradation, cumulative impacts, and compensatory mitigation—by referencing the permit’s history of revisions and modifications, and by consulting with WVDEP to ascertain whether Mingo Logan Coal Co. was currently in compliance. Concerning elevated conductivity levels, USACE added that USEPA’s comments on water quality “are not considered new information that would warrant revisiting the issue” (USEPA, 2009, p. 3), and concluded, “no additional evaluation of the project’s effects on the environment are warranted, the permit will not be suspended, modified, or revoked, and a supplemental EIS will not be prepared” (USEPA, 2009, p. 3). At the conclusion of the first stay, on October 16, 2009, USEPA responded to USACE threatening to issue a Proposed Determination on Spruce No. 1, which would essentially veto the proposal. USEPA predicted that granting the Spruce No. 1 mine permit would probably result in “unacceptable adverse impacts to fish and wildlife resources” (USEPA, 2009, p. 1). Nothing significant happened after the initial delivery of the threat. Department of Justice lawyers stepped in to stay court proceedings, USEPA requested a stay of proceedings, and Judge Chambers granted these delays three times, effectively granting USEPA more time for a response. Finally, on March 5, 2010, Judge Chambers granted a final stay of proceedings and advised the USEPA to reach a final Proposed Determination.
March 26, 2010 – September 2010: USEPA proceeds with 404(c) veto process
On March 26, 2010, USEPA issued the landmark “proposed determination to prohibit, restrict or deny the specification, or the use for specification, of an area as a disposal site; Spruce No. 1 surface mine, Logan County, West Virginia” (USEPA, 2010a, p. 1). This is the first time since the CWA’s inception in 1972 that USEPA has initiated the process for using its veto power for a Section 404 permit. By vetoing USACE’s permitting of discharges into the Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch, and tributaries in Logan County, USEPA will effectively prevent the majority of mining in the Spruce No. 1 permit area. Following CWA procedure, USEPA issues the Proposed Determination and then conducts an investigative process that could result in a withdrawal of the permit, restrictions to the permit, or a declaration of permit sufficiency (USEPA, 2009c). The issuance of the Proposed Determination effectively reopened the EIS process to evaluate new information related to conductivity and narrative water quality standards, in addition to the information already contained in the final EIS. Following this landmark event, Judge Chambers further stayed the legal proceedings to allow time for public feedback on the Proposed Determination. At the conclusion of the public comment period and public hearings, more than 4,000 comments had been posted. Finally, on July 12, 2010, USEPA published in the Federal Register that it would delay a Recommended Determination until September 24, 2010.
April 15, 2011: 4th U.S. Circuit Court of Appeals dismisses November 2009 appeal by Judge Chambers
On April 15, 2011, the 4th U.S. Circuit Court of Appeals dismissed the November 2009 appeal by Judge Chambers that concluded federal regulators wrongly did not give the public enough input into the review of mountaintop removal mining permits. The ruling by Chambers focused on the federal Army Corps of Engineers’ practice of considering permits to be administratively complete and ready for public notice and comment before some key documents — most importantly the “mitigation plans” through which companies try to compensate for burying streams — are available for the public to examine and comment on.[5]

October 2010: EPA administrator recommends water permit veto

On October 15, 2010, the EPA released the recommendation of regional administrator Shawn Garvin, who said the agency should veto the Clean Water Act permit for the Mine. EPA posted a copy of Garvin’s recommendation, which concludes: "Because construction of the Spruce No. 1 Mine and 11 additional mining operations would increase the percent of the sub-basin that is impacted by mining activity, it can be expected that these water quality effects will likely be exacerbated by these additional mines. EPA believes that the Spruce No. 1 Mine project, in conjunction with the other mining operations either under construction or proposed for the Coal River sub-basin, will be likely to contribute to the significant cumulative loss of aquatic resources and degradation of water quality."[6]

EPA released Garvin’s recommended decision publicly and filed a copy of it in federal court in Huntington, asking U.S. District Judge Robert C. Chambers to extend for another 120 days — until Feb. 22, 2011 — the judge’s order suspending litigation over the Army Corps of Engineers-issued permit until EPA can complete its review and potential veto of the operation. The EPA had initially refused to release Garvin’s recommendation, claiming that it was an internal document. Judge Chambers gave EPA until last Oct. 8 to file a legal brief explaining its position — an offer that EPA lawyers apparently declined, choosing to release Garvin’s recommendation instead.[6]

January 13, 2011: EPA vetoes water permit

On January 13, 2011, it was announced that the EPA had vetoed the Clean Water Act Section 404 "dredge-and-fill permit" for the mine, the largest single mountaintop removal permit in West Virginia history. In making its decision to veto the U.S. Army Corps of Engineers’ approval of the 2,300-acre mine, "Final Determination of the U.S. Environmental Protection Agency Pursuant to § 404(c) of the Clean Water Act Concerning the Spruce No. 1 Mine, Logan County, West Virginia", EPA noted that it reviewed more than 50,000 public comments and held a major public hearing in West Virginia. EPA officials said their agency is “acting under the law and using the best science available to protect water quality, wildlife and Appalachian communities who rely on clean waters for drinking, fishing and swimming.”[1]

On the decision, the EPA stated that its "final determination on the Spruce Mine comes 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 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."[1]

In the announcement, EPA outlined the following concerns that the proposed mining operation would have:[1]

  • Disposed of 110 million cubic yards of coal mine waste into streams.
  • Buried more than six 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.

Conservative opposition to veto

In response to the EPA veto, Friends of Coal supported a "call to arms" rally planned by Acting Governor Earl Ray Tomblin for Thursday, January 20th at the state capitol. The rally's "call to arms" was criticized due to the recent shooting of congressional representative Gabrielle Giffords in Tucson, Arizona. Friends of Coal later removed the slogan from their website. The group played defensive when contacted by reporter Ken Ward, Jr., calling it "a figure of speech,"[7]

In his campaign in fall 2010, U.S. Senator Joe Manchin (D-WV) made national news for firing a rifle while invoking President Obama's name in the "war on coal." While shooting the gun, Manchin said he would take "dead aim."[8]

January 14, 2011: Judge rules EPA may be exceeding its authority on water permits

On January 14, 2011, one day after the veto, federal judge Reggie Walton ruled in a preliminary decision that mining companies represented by the National Mining Association (NMA), can proceed with their challenge to the EPA's policies on mountaintop removal coal mining, saying the EPA may have exceeded its legal authority in vetoing the permit. Walton said the NMA appears likely to prevail on that point - whether EPA ignored proper procedures for rulemaking and exceeded its authority - if the case goes forward, but he concluded the plaintiffs have not proved that the agency's actions have caused them harm, so the judge denied an injunction against EPA actions, and the agency will be allowed to continue with its water permitting decisions for the time being. Judge Walton added, toward the end of the ruling that "While it may be true that the challenged EPA actions were 'designed to significantly reduce the harmful environmental consequences of Appalachian surface coal mining operations, while ensuring that future mining remains consistent with federal laws' these environmental interests — the actual environmental impact of surface mining — are not currently before the court."[9]

Eyewitness reports of continuing work on mine after veto

As reported on CounterPunch, eyewitness reports say work on the Spruce 1 Mine has been underway since 2010, and the preparations have actually sped up since the EPA veto was announced. Arch Coal is not dumping mining spoils into Pigeonroost Branch, which runs through the middle of the Spruce 1 Mine, but they are allowed to dump in Seng Creek, one ridge over, which they are reportedly doing with the EPA's tacit approval.[10]

Judge overturns EPA veto

On March 23, 2012, U.S. District Judge Amy Berman Jackson ruled that the federal Environmental Protection Agency is not authorized to withdraw a Clean Water Act permit that was already issued by the Army Corps of Engineers, saying "This is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute.” Jackson called the language at issue in the law unclear and confusing, but said that EPA’s reading of its authority was not a reasonable interpretation.[11]

Appeal court upholds veto

On April 23, 2013, a federal appeals court ruled that U.S. EPA's 2011 retroactive veto of the project was legal. Since Judge Berman Jackson did not rule on the actual merits of the agency's decision, only that the EPA did not have the legal authority to retroactively veto the permit, the appeals court therefore sent the case back to the district court for further consideration.[12]

Report shows Arch Coal rejected reducing environmental impacts at Spruce Mine

On January 17, 2011, reporter Ken Ward revealed that Arch Coal had reportedly refused to consider paying an extra 55 cents a ton for coal in order to meet EPA and Clean Water Act standards for the Spruce Mine, despite posting over $700 million in earnings for 2010.[13]

Ward uncovered a Sep. 2010 engineering report prepared for the EPA which showed that Arch Coal could have cut the stream damage from its proposed Spruce Mine in half without significantly increasing coal-production costs. Specifically, permanent and temporary stream burial could have been cut from 8.3 miles to about 3.4 miles under one alternative mining plan developed for EPA by engineering firm Morgan Worldwide. The alternative mining plan would have raised production costs for Arch subsidiary Mingo Logan Coal Co. by 55 cents per ton, about 1 percent of the expected per-ton sales price, according to the report obtained under the federal Freedom of Information Act. Arch Coal did not adopt the recommended changes for the Spruce Mine, and in early Jan. 2011, EPA officials revoked the operation's Clean Water Act permit, citing "destructive and unsustainable mining practices" proposed by the company.[13]

West Virginia political leaders have harshly criticized EPA for its action against the Spruce Mine, and the EPA decision prompted Acting Gov. Earl Ray Tomblin to announce a "rally for coal" at the Capitol. Ward points out that supporters of the Spruce Mine have not publicly questioned whether the company could -- or should -- have done more to reduce the project's impacts, as the uncovered report suggested.[13]

Mine Data

  • MSHA ID: 4609174
  • Operator: Mingo Logan Coal
  • Controller: Arch Coal
  • Union:
  • County: Logan
  • State: WV
  • Latitude: 37.91
  • Longitude: -81.8
  • 2007 Production (short tons): 219,682
  • Coal Type: Bituminous
  • Mining Method: Surface
  • Mine Status: Active
  • Average No. of Employees: 12

Citizen Action

In September 2010 the Rainforest Action Network dumped 1,000 pounds of Appalachia dirt on the sidewalk of EPA headquarters in Washington DC in protest of the mine. RAN's message: "EPA: Don't Let King Coal Dump On Appalachia." No arrests were reported.[14]

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References

  1. 1.0 1.1 1.2 1.3 Ken Ward Jr., "Breaking news: EPA vetoes Spruce Mine permit" Coal Tattoo, Jan. 13, 2011.
  2. Ken Ward Jr., "Breaking: Judge overturns EPA veto of Spruce Mine," Coal Tattoo, March 23, 2012.
  3. Manuel Quinones, "Appeals court backs EPA in battle over retroactive veto of Clean Water Act permit," E&E, April 23, 2013.
  4. Rory McIlmoil and Laura Hartz, "Case Study: Spruce Mine No. 1 Surface Mine," Downstream Strategies, September 20, 2010
  5. Ken Ward Jr., "4th Circuit tosses appeal of Judge Chambers’ ruling" Coal Tattoo, April 18, 2011.
  6. 6.0 6.1 Ken Ward Jr., "Breaking news: EPA regional administrator recommends historic veto of Spruce Mine permit" The Charleston Gazette, October 15, 2010.
  7. "Industry Group Portrays West Virginia Pro-Coal Rally As a 'Call to Arms'" Jess Leber, Change.org, January 19, 2010.
  8. Jeff Biggers, "Big Coal's Call to Arms? Should Feds Stop West Virginia Rally from Triggering the Next Arizona?" HuffPo, Jan. 19, 2011.
  9. Ken Ward Jr., "Breaking news: Court ruling in coal industry case over EPA crackdown on mountaintop removal" Charleston gazette, Jan. 18, 2011.
  10. Mike Roselle, "Mammoth Spruce No 1 Mine Goes Forward Despite EPA Veto" CounterPunch, Feb. 3, 2011.
  11. Ken Ward Jr., "Breaking: Judge overturns EPA veto of Spruce Mine," Coal Tattoo, March 23, 2012.
  12. Manuel Quinones, "Appeals court backs EPA in battle over retroactive veto of Clean Water Act permit," E&E, April 23, 2013.
  13. 13.0 13.1 13.2 Ken Ward Jr., "Spruce Mine could have reduced impacts, report says" Charleston Gazette, Jan. 18, 2011.
  14. "RAN Protests Spruce Mine at EPA HQ" Daniel Kessler, Treehugger.com, September 14, 2010.

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