Comments Regarding Spruce Mine No. 1 Permit Revocation

The West Virginia Coal Association (WVCA) hereby submits the following comments and observations regarding the federal Environmental Protection Agency’s (EPA) proposal to revoke the Clean Water Act (CWA) Section 404 permit issued by the U.S. Army Corps of Engineers (Corps) to Mingo-Logan Coal Company for its Spruce No. 1 Mine (Spruce) in West Virginia.

 

WVCA is a state coal trade association representing the interests of companies engaged in the mining of coal within the state of West Virginia. WVCA’s producing membership accounts for over 90 percent of the Mountain State’s underground and surface coal production. WVCA also represents some 250 associate members that supply an array of services to the mining industry. These associate members include permitting, environmental and engineering consulting firms, mining equipment manufacturers, coal transportation companies, coal consumers and land and mineral holding companies. WVCA’s primary goal is to enhance the viability of West Virginia coal as a source of domestic energy by facilitating environmentally-responsible coal mining through reasonable, equitable and achievable state and federal policy and regulation.

 

WVCA’s members routinely seek CWA Section 404 permits from the Corps to facilitate underground and surface coal production. Because of the steep, rugged terrain of West Virginia and Central Appalachia virtually all coal production within the state depends on the ability to obtain CWA Section 404 permits from the Corps and keep the issued permits. It is for this reason that WVCA offers the detailed comments that follow below regarding EPA’s proposed action relative to the Spruce No. 1 Mine. WVCA firmly believes that EPA’s actions to REVOKE a validly issued permit upon which construction and coal production has commenced, casts a dark shadow over all federal regulatory permit actions related to the coal industry in West Virginia and elsewhere. As EPA itself has admitted, moving to revoke an issued and operating permit is extremely rare, if not unprecedented in the history of the CWS Section 404 program. EPA’s actions relative to the Spruce permit are the ultimate manifestation of regulatory confusion and uncertainty – that a company could pursue for decades a permit, negotiate in good faith with federal regulators to receive a permit, mobilize and deploy significant resources, equipment, personnel and investment to activate the permit, operate under that lawfully issued permit in full compliance with its terms and conditions only to then be faced with its revocation is evidence of EPA’s attempts to manipulate the CWA to satisfy the political whims of its administrators. The very fact that EPA has initiated this action further ingrains the feeling of regulatory uncertainty and doubt that has descended on West Virginia’s most important industry since EPA began its campaign to interfere with and essentially block all CWA permitting actions associated with coal mining operations two years ago. If EPA actually proceeds to revoke this permit, any faith in the regulatory processes and the clearly defined separation of authorities and responsibilities between federal and state permitting programs will vanish.

 

WVCA also believes that EPA’s proposed actions relative to the Spruce Mine come nowhere near satisfying the bar set by Congress for CWA Section  404© actions. Instead, it represents a selective recitation of EPA’s involvement with permitting actions associated with the Spruce operation, regurgitates concerns that were addressed almost a decade ago by the applicant and state regulatory authority and seeks to disguise acknowledged environmental results of mining as some new evidence that the operation will violate established standards. Finally, to serve its anti-Appalachian coal mining agenda, of which the Spruce permit action is but one example, EPA is attempting to interpret West Virginia’s water quality standards, substituting its own judgment for that of the state and trampling the distinctions of authority established by the CWA. This substitution comes in the face of repeated statements from the stat regulatory authority and the West Virginia Legislature that these standards were never intended to be implemented in such a manner.

 EPA’s Proposed Determination Document Does Not Adequately Describe the Agency’s Involvement with the Spruce Permit. 

EPA’s proposed determination document does not adequately describe the agency’s previous involvement with the Spruce Mine. These convenient omissions conceal the fact that the EPA has been involved in the review and approval process for the Spruce Mine far earlier than revealed in the determination document. They also serve to hide the reality that its concerns have been resolved through the existing, appropriate regulatory channels and its moves to revoke the now issued permit are a perversion of the CWA and the clear lines of authority and separation of duties established in the statute by Congress.

 

Prior to 2002, EPA and the Corps maintained different definitions of the CWA term “fill material”. The existence of these definitions, which were ultimately remedied with a joint federal rulemaking effort, allowed EPA to use its CWA Section 403 NPDES permitting oversight authority as a means to permit mining-related discharges of fill material. Throughout this timeframe EPA applied policies that were derived from and cited to the CWA Section 404(b)(1) Guidelines under the NPDES program to review discharges of fill material. [1] Relying on this regulatory structure, EPA twice objected to the draft NDPES permits associated with the Spruce operation. The first objection from EPA was in 1998 when WV DEP was prepared to issue a NPDES permit for a much larger version of the Spruce Mine permit and took the form of an NPDES “specific objection” letter. EPA’s specific objection letter contained three conditions that could be satisfied to address the initial objections. After a lengthy deliberation process, that included a public hearing and downsizing of the operation, EPA acknowledged that WV DEP and the applicant had satisfied its original conditions for withdrawal of the objection.[2]

 

Following the resolution of its NPDES-based objections, EPA concurred in the Corps’ initial permitting action associated with the Spruce Mine – the issuance of a Nationwide Permit 21 (this permit was subsequently suspended in the face of litigation.) In correspondence to the Corps, EPA acknowledged the actions taken by the applicant and WV DEP to reduce the footprint and impacts of the mine in response to the federal agency’s NPDES objections in 1998-1999.[3]

EPA’s next involvement with the Spruce Mine’s NPDES permitting actions came in 2002 by way of another specific objection letter related to a modification of the issued NPDES permit for the Spruce Mine. In this objection, EPA raised the very same issues that it now relies on as “new” information to justify the unprecedented action to revoke the issued CWA Section 404 permit. EPA’s 2002 letter referenced possible impairment of aquatic life, violation of water quality standards and higher conductivity ad selenium levels among other issues. Just as it had done in 1998, EPA suggested conditions that, if satisfied, would result in the federal agency removing its objections. Based on the inclusions of its suggested conditions in the modified NPDES permit, EPA officially withdrew its objections.[4]

 

The discussions of EPA’s involvement in the NPDES permitting actions associated with the Spruce Mine is extremely important for three reasons. First, it clearly shows that EPA has been far more involved in the review and authorization of this particular mining operation than one is lead to believe in the proposed determination document. Second, and most critically, it demonstrates that EPA had ample opportunity through the NPDES permitting program to address its concerns related to water quality are not new at all, but simply a convenient way for EPA to once again obstruct a permit that it has analyzed, considered and approved in some form or fashion for the past 13 years. It is also worth noting that EPA, by way of twice removing its NPDES-based objections and approving the Corps’ issuance of an NWP 21, in three instances approved a mining operation that is larger than the current configuration of the Spruce Mine.

 EPA’s Proposed Revocation Incorrectly and Inappropriately Interprets West Virginia’s Water Quality Standards. 

As part of its proposed revocation of the Spruce Mine permit, EPA has attempted to illegally hijack the interpretation and application of West Virginia’s water quality standards. In its proposed determination document, EPA discusses, at length, possible benthic impacts and conductivity discharges from the Spruce Mine in statements very similar to comments the agency has filed on other pending CWA Section 404 permits for coal mining operations in West Virginia and Appalachia. This discussion totally fails to acknowledge the existence of West Virginia’s approved water quality standards program and previous statements from the West Virginia Legislature regarding the state’s water program.

 

As noted previously, EPA has raised similar concerns in its review and comment on other mining-related CWA Section 404 permits. WV DEP has officially responded to EPA’s claims regarding violations of the state’s narrative water quality standard:

 Based on the Pond study, [the] USEPA letter contends that water quality is not being protected downstream of the fills proposed by these mining companies. As you are aware, the downstream water quality is principally regulated through the NPDES permit issued by WV DEP. The WV DEP believes that NPDES permits it issues for these types of mining operations fully comply with all requirements. The recently published Pond study does not change this belief.[5] …USEPA contends that these mines will violate one of the State’s narrative water quality standards. This water quality standard prohibits a ‘significant adverse impact to the … biologic component of the aquatic ecosystems’ … The WV DEP understand that the Pond study found a shift in the benthic macroinvertebrate community downstream from mining activity but did not otherwise correlate this finding with any significant or adverse impairment of the ecosystem. Where the only impacts of this component of the ecosystem are diminished numbers of certain genera of mayflies, without evidence that this has had any adverse impact of any significance on the rest of the aquatic ecosystem, the State cannot say there has been a violation of its narrative standard.[6] 

WV DEP’s conclusions regarding EPA’s interpretation of West Virginia’s narrative water quality standards was also addressed by the West Virginia Legislature in the 2010 Regular Session the passage of House Concurrent Resolution No. 111, which reaffirmed the Legislature’s intent with the respect to the state’s narrative water quality standards:

 Whereas, As an exercise of its sovereign and primary right to plan the development and use of its lands and water resources the West Virginia Legislature previously enacted Chapter 22 Article 11 of the 1931 Code of West Virginia as amended, the West Virginia Water Pollution Control Act, and in that enactment declared it to be “the public policy of the State of West Virginia to maintain reasonable standards of purity and quality of water of the state consistent with (1) public health and enjoyment thereof; (2) the propagation and protection of animal, bird, fish, aquatic and plant life; and (3) the expansion of employment opportunities, maintenance and expansion of agriculture and the provision of a permanent foundation for healthy industrial development.”; and  Whereas, The State of West Virginia has developed and implemented environmental protection performance and permitting standards to adequately protect the waters of the State consistent with this statement of public policy; and Whereas, Such standards have been promulgated by the West Virginia Department of Environmental Protection and the Legislature and submitted to and approved by the United States Environmental  Protection Agency pursuant to the federal Clean Water Act; and Whereas, These environmental protections and permitting measures include narrative water quality standards codified at 47 CSR 2-3; and Whereas, West Virginia’s narrative standards must be implemented and interpreted in a manner that is protective of aquatic communities consistent with the Legislature’s statement of public policy and applicable laws; and  Whereas, The State of West Virginia has not adopted subcategories of special use to protect a certain species of mayfly but protects the aquatic community consistent with the Legislature’s statement of public policy; and Whereas, West Virginia’s economic stability relies on the accurate implementation of applicable laws as enacted by the Legislature; and Whereas, The current method in which the United States Environmental Protection Agency is interpreting the West Virginia Water Pollution Control Act is hindering economic opportunities available to all West Virginians; and Whereas, The West Virginia Legislature would not enact legislation that would have a detrimental effect on the industrial progression of the state and cause or contribute to environmental degradation; therefore be itResolved by the Legislature of West Virginia:  That any interpretation and implementation of West Virginia’s narrative water quality standards is the responsibility of the West Virginia Department of Environmental Protection; and, be it Further Resolved, That the requirements of the narrative criteria are met, when a stream (a) supports a balanced aquatic community that is diverse in species composition; and (b) contains appropriate trophic levels of fish (in streams with sufficient flows to support fish populations); and (c) the aquatic community is not composed only of pollution tolerant species, or the aquatic community is composed benthic invertebrate assemblages sufficient to perform the biological functions necessary to support fish communities within the assessed reach (or, if the assessed reach has sufficient flows to support a fish community, in those downstream reaches where fish are present); and, be it Further Resolved, That interpretation of West Virginia’s narrative water quality standards must faithfully balance the protection of the environment with the need to maintain and expand opportunities for employment, agriculture and industry as set forth in the Legislature’s statement of public policy as contained in the West Virginia Water Pollution Control Act; and, be it Further Resolved, That the West Virginia Legislature encourages the United States Environmental Protection Agency to change their current interpretation of the West Virginia Water Pollution Control Act to include the intent of the 72nd and subsequent Legislatures;[7] 

WV DEP has responded specifically to claims regarding its approved water quality standards program in the context of the Spruce Mine permit:

 Consistent with our charge from Congress, the WV DEP takes its responsibilities and rights to review applications for water quality certifications seriously and expects the agencies of the federal government to honor them. In this case, the WV DEP issued a water quality certification on December 19, 2005, and to my knowledge, USEPA has never provided this agency with any information that could lead us to conclude that the certification was deficient, despite claims that in its September 3, 2009 letter that “new information and circumstances have arisen, which justify reconsideration of the permit.” None of the information alluded to in EPA’s letter would cause the WV DEP to change the water quality certification that is issued for this project.[8] 

Additionally, the West Virginia Legislature specifically addressed the interpretation and application of the narrative standard with respect to the Spruce Mine permit:

 Whereas, In the course of its deliberation regarding the Spruce Mine, the U.S. Environmental Protection Agency has raised concerns regarding water quality; and  Whereas, Interpretations and implementation of West Virginia’s water quality standards is the responsibility of the West Virginia Legislature and the West Virginia Department of Environmental Protection, who has previously determined that the Spruce Mine complies with the water quality standards, including the narrative standards approved by the Legislature and implemented by the West Virginia Department of Environmental Protection…[9] 

Finally, WV DEP has previously addressed EPA’s attempts to impose a new water quality standard or threshold on West Virginia and the Appalachian region, and attempt it repeats in the Spruce Mine proposed determination document:

 The USEPA’s letter makes reference to a specific conductance level of 500 uS/cm as if this has some established regulatory significance. This value is based on an unidentified data set and lacks a regulatory nexus. EPA’s National Recommended Water Quality Criteria 2006, has no recommended water criteria for freshwater aquatic life for dissolved solids.[10] EPA’s Information Regarding the Spruce Mine Does Not Constitute New Evidence 

Ignoring the purpose of this particular discussion that compliance with and concerns regarding water quality standards are the province of the WV DEP through Section 402 and Section 401 programs, WVCA believes that the research upon which EPA raises these objections falls far short of demonstrating the impacts that EPA references.

 

EPA’s water quality concerns are based in large part on a 2008 report authored by staff biologists in the agency’s Wheeling, W.Va. field office titled Downstream Effects of Mountaintop Coal Mining: Comparing Biological Conditions Using Family and Genus Level Macroinvertebrate Tools. Despite EPA’s claims that this Pond-Passmore Report, as it is commonly referred to, represents “new information” regarding the downstream impacts of mining activities, the study presents no such new circumstances or information. It simply presents existing information and data in the context of an assessment tool (that is not endorsed by any agency) that appears to be specifically designed to overstate the effects of mining on a downstream watershed. The exact cause of this shift is disputed, but it is clear that changes in the aquatic communities below mining operations DO NOT represent significant degradation, as the stream is still able to meet its CWA designated use as demonstrated by the comments of WV DEP and the actions of the West Virginia Legislature cited in the previous section.

 

Mining and valley fill construction’s effects on downstream benthic communities have been well-documented. The Programmatic Environmental Impact Statement (PEIS) and several subsequent reports have documented a shift in benthic communities below mining operations. The PEIS was conducted by several federal agencies and the WV DEP to examine the impacts of surface mining in Appalachia and West Virginia. EPA was a primary author and the publishing agency for this activity-specific PEIS that was concluded in 2005. Included in the PEIS findings and conclusions are several statements which are relevant to EPA’s proposed revocation, at issue in this comment period, and specifically relate to the agency’s contention that “new information” exists with respect to aquatic impacts. Additionally, these studies further support the conclusions of the WV DEP and the West Virginia Legislature with respect to compliance with state water quality standards:

 Overall, the abundance of macroinvertebrates was found to be similar in upstream and downstream stations or to be slightly higher in downstream stations.[11] Biological conditions in the mined sites generally represented very good conditions…[12] Watershed impacts directly attributable to mining and fills could not be distinguished from impacts due to other types of human activity.[13] 

The conclusions of these government-sponsored studies have been further confirmed by independent research:

 Neither the changes in the biological community, nor the changes in the water chemistry in the filled sites appear to have a significant adverse impact on the stream function with respect to downstream segments. The most significant changes in the biological community appear to be a shift in the functional feeding groups toward more filter feeding organisms. This typically occurs in streams whenever ponds, dams or municipal discharges are present. The increased abundance at these sites, which likely results from the increased food sources, indicates that sufficient food is available to support a benthic community at these locations and downstream.[14] With no anticipated water quality impairments downstream of the proposed mining and valley fill activities, there should be no long term impacts downstream of mining and valley fill construction after the temporary impacts associated with disturbances in the watershed have abated. These temporary impacts, such as sedimentation from timbering and earth disturbances and the presence of sediment ponds, will be addressed via best management practices, engineered controls (isolation of materials, materials handling plan) and the NPDES permit. Based on the findings of Hendricks (1999), the EPA’s most recent Mountaintop Mining Environmental Impact Statement (MTM EIS), the MTM EIS Supplemental Study conducted by POTESTA and research presented by Merricks (2003), where functional benthic macroinvertebrate communities were documented downstream of valley fills, no significant impacts to streams are anticipated.[15] Overall, the benthic macro-invertebrate community was not significantly hindered by the drainages originating from the hollow fills [valley fills].[16] 

The findings and conclusions of the PEIS and subsequent studies are particularly relevant to the agency’s discussion of the Spruce Mine. As previously noted, EPA has used its NPDES permitting oversight authority to raise concerns regarding water quality and the Spruce operation. In each case, it removed its objections based on the inclusion of EPA-stipulated conditions. Following its original NPDES objection and its concurrence with the Corps’ initial permitting action, EPA participated in the PEIS and its supporting technical studies. During the PEIS, EPA issued another NPDES objection, this time raising the same concerns that it has identified as the basis for this revocation action. Just as before, EPA removed its objections based on permit conditions. Following its last NPDES specific objection, EPA and the other involved agencies completed the PEIS. Perhaps the most important conclusion of the PEIS was its conclusion that “…the EIS studies did not conclude that impacts documented below MTM/VF operations cause or contribute to significant degradation of waters in the U.S.”[17]

 

Since the previously-referenced Pond-Passmore report is nothing more than a restatement of existing data through a new interpretative assessment method, WVCA fails to understand how EPA’s conclusions with respect to the Spruce Mine permit can differ from the findings of the PEIS, regarding significant degradation.

 

Between EPA’s original NPDES objection and the issuance of the CWA Section 404 permit that is now at issue, more information was collected and analyzed by mining regulatory agencies than ever before and the activity-specific PEIS was completed. The PEIS allowed the agencies to programmatically conclude that mining operations were not causing significant degradation. Yet even before the PEIS was concluded, EPA removed an NPDES permit specific objection to the Spruce Mine.

 

Despite this history, the existence of scientific data and conclusions from the EPA-authored PEIS, EPA somehow believes that one study, using an assessment method that is not endorsed or codified by any agency, state or federal, is impetus enough to disregard state interpretation of its own standards and an effort to revoke an issued permit. EPA’s proposal to revoke the Spruce permit would be a laughable exercise in regulatory disbelief if not for the serious ramifications of the actions.

 EPA’s Proposed Revocation of the Spruce Mine Illegally Expands the Agency’s Authority Under Section 404(c). 

Congress carefully crafted the parameters of EPA’s veto/revocation ability to specifically restrict that authority to possible adverse impacts to “municipal water supplies, shellfish beds, fishery areas, wildlife and recreational areas.” Despite this narrow scope of review, in the proposed determination regarding the Spruce Mine, EPA attempts to extend its discussion of potential impacts to areas not subject to the Corps’ jurisdiction under CWA Section 404 and, by extension, certainly not within the scope of EPA’s authority by way of CWA Section 404(c). The proposed determination is full of observation and speculation regarding “uplands” impacts that are permitted by the state regulatory authority pursuant to the Surface Mining Control and Reclamation Act and the Corps.

 

With regards to the areas subject to EPA’s CWA Section 404(c) authority, the agency clearly has failed to demonstrate “adequate cause” to justify revocation of the permit at issue. While the proposed determination is full of observations regarding impacts to the benthic macroinvertebrates, i.e. bugs, the agency has not demonstrated the connection between bugs and the areas for which EPA can exercise its veto authority.

 Conclusion 

WVCA believes that EPA has failed miserably in its attempt to justify revocation of the Spruce Mine permit. While EPA has attempted to selectively present the regulatory history of its involvement in the operation, it has circumvented established CWA authorities and distinctions of authority between state and federal regulatory agencies and tried to describe impacts that are beyond the scope of its consideration in an attempt to taint public response, it has still failed to build a credible case for revocation of this permit. WVCA’s specific, preceding comments have adequately demonstrated the reality of EPA’s contrived “justification” for this action. Given the unprecedented nature of this action and the inherent regulatory and permitting instability it will further foster in the Appalachian coal industry, WVCA strongly urges EPA not to proceed with this permit revocation.

 
 Statement of Bill Raney President West Virginia Coal Association 

Concerning EPA’s Proposed Revocation of the Spruce Mine Permit

 

Mr. Pomponio – Mr. Garvin

 

I’m Bill Raney and I’m very proud to represent the West Virginia Coal Association.

 

We appreciate you being here tonight and we welcome you to Charleston.

 

However, we think if you “dig deep” and “honestly answer” the common workingman’s definition of “environmental justice” you’ll find this “threat” by EPA, your agency to revoke this permit without any reason – to be “wrong.”

 

“Revoking” this permit that was “lawfully issued” almost three years ago, with your “agency’s blessing”. After more than ten years of the “most comprehensive” environmental review, again by your agency, is as “troublesome” – “unnecessary” and “arrogant” as anything we’ve ever seen in West Virginia.

 

“To take these jobs” which are “real” – “tangible” – and “a source” of confidence and value for the people of West Virginia and Appalachia without any suggestion that performance has not been “in complete compliance” on this job for nearly three years, is an “injustice.”

 

This action seems to be based on “supposition and self-conducted studies” that are designed to “support” the “personal opinions and objectives” of people in Washington and Philadelphia.

 

There is no “evident concern” for the “real impact” of taking “real” jobs that men and women get up every morning to pursue in West Virginia – so you all can have electric lights in DC and PA. Jobs that are paying for their homes, their children’s education, health care for their aging parents’ who they want close to them.

 

Your “what might be” is going to absolutely disrupt the “real” lives of the “best coal miners” in the world. It will “paralyze investment with uncertainty” – when this state and this nation are “crying for economic expansion and growth.” That is “real.” And taken to the next level: No business – no development – no factory – and no city treatment plant is safe from the “bullish” hand of your agency.

 

Their “water permit” could be the next one – gone tomorrow – on a “whim” – no matter when it was issued.

 

So, yes – “we’re concerned” and you’ll hear that tonight. Because we all “go home” and “hope” we have a job in the morning, while “you” go back to Philadelphia and may never see these people again.

 

That is not “environmental justice”. It’s “injustice”. And it’s “simply not right.” We ask you to “put our people” first – “put our state” first. And let the jobs at Spruce – “go forward.”

 Statement of Chris R. Hamilton Senior Vice-President West Virginia Coal Association Concerning EPA’s Proposed Revocation of the Spruce Mine Permit 

Thanks for the opportunity to speak tonight, and I would especially like to thank Regional Administrator Shawn Garvin for taking the time to personally hear our concerns.

 

We are here tonight to talk about the Spruce No. 1 Mine permit and EPA’s unprecedented actions to REVOKE an issued permit…a permit that the agency could have very well moved to veto when it was issued, but chose not to do so. We are now confronted with this immediate situation where EPA is going to take away a permit that has been issued for three years.

 

I want to speak tonight and remind EPA and everyone else of the carefully-crafted goals and objectives of the Federal Clean Water Act and how that statute sought to balance reasonable economic development with stringent environmental protection.

 

One of the ways the Clean Water Act sought to strike that balance was by reserving to the states the primary responsibility for implanting water quality standards to preserve stream uses and issue permits that implement discharge standards allowing use while maintaining water quality standards.

 

West Virginia has been implementing its version of the Clean Water Act for decades, issuing permits that contain some of the nation’s most stringent discharge limits to protect water quality standards – standards many states have chosen not to adopt.

 

West Virginia’s implementation of its water quality standards and permitting programs was unchallenged by EPA for years….or until the federal agency sought to hijack the state’s primary responsibility for water quality protection by interpreting the state’s own water standards…and doing so in such a way that conflicts with the state’s own interpretation.

 

During the recently concluded 2010 legislative session, the West Virginia Legislature, which as the ultimate responsibility for adopting changes to water quality standards within the state’s clean water act program, made it clear to the world that it DID NOT share EPA’s interpretation of its water quality standards program. Further, with the passage of House Concurrent Resolution 111, the Legislature made it crystal clear that any interpretation of a water quality standard that prevented reasonable economic development would not only conflict with the state Clean Water Act, but the federal Clean Water Act as well.

 

Finally, the Legislature also spoke directly to the issue at hand concerning the Spruce Mine with the passage of Senate Concurrent Resolution 61…which not only urged EPA not to revoke the issued permit but reminded you folks in Philadelphia and Washington that any interpretation and implementation of West Virginia water quality standards is the responsibility of the Legislature and the WV DEP …. Both of which have already determined through the issuance of the related state permits that the Spruce Mine complies with the Clean Water Act.

 

In closing, these legislative actions to remind you of the carefully crafted balance of federal and state authority, of environmental protection and economic development created by the Clean Water Act…. In short, if EPA respects the boundaries of its authorizing statute, if it respects the primary responsibilities of the state and the Corps to implement their own programs, then it has no choice but to leave the Spruce No. 1 Mine permit alone and allow our coal miners to work.

 Statement of Jason D. Bostic Vice-President West Virginia Coal Association Concerning EPA’s Proposed Revocation of the Spruce Mine Permit 

Thank you for the opportunity to speak tonight and thank you for attentiveness to this issue.

 

Briefly touch on some technical aspects of the Spruce Mine and your agency’s actions to revoke a three-year-old permit.

 

First, I think it is beyond argument that any action by EPA to revoke the Spruce Mine permit fails the statutory test and parameters of authority that are granted to your agency under Section 404(c) of the federal Clean Water Act. EPA has in fact admitted as much when it confessed that over the 38-year course of its existence, it has never sought to revoke an issued permit.

 

EPA’s action relative to the Spruce permit should have occurred when the Corps issued the permit…some three years ago. But, EPA did not take such actions, and in fact, complimented the Corps and the Company on the actions it has taken to bring the permit to fruition.

 

So, what has changed in three years since the Spruce permit was issued?

 

According to the Corps, not much at all. The Corps has officially responded, in detail to the EPA’s allegations of harm. In each and every instance the Corps DID NOT agree with EPA’s supposed evidence that revocation of the permit was warranted. Because many of EPA’s allegations related to water quality and the interpretation and implementation of West Virginia’s water quality standards, the West Virginia Department of Environmental Protection responded as well. Here again, WV DEP found no reason to believe that issuance of the Spruce permit or its operational record over three years warranted this unprecedented move to revoke an issued permit. Moreover, the West Virginia Legislature, which reviews and adopts water quality standards for the state of West Virginia under the federal-state relationship, established by the federal Clean Water Act, has formally concluded that West Virginia’s water quality standards were correctly interpreted and implemented with respect to the Spruce Mine permit.

 

So, again, I raise the question of what has changed…from our viewpoint, nothing except the attitude of EPA…that suddenly a federal agency know better how to read water quality standards…better than the Corps… better than the state agency that is directly responsible for implementing the standards…better than the elected Legislature that actually passed the standards than the EPA of three years ago that actually approved the Spruce Mine permit.

 

This situation would be a laughable exercise in regulatory dysfunction if it were not so serious…that a federal agency would use STATE laws and regulations to as a hammer to take a permit endorsed by that very state. That EPA would seek to void millions of hours of analysis and review by the Corps in the issuance of the project specific EIA….

 

But this is a serious situation…hundreds of jobs are at stake, millions of dollars of investment…millions of potential tax revenues and the faith and participation of the communities in and around the Spruce Mine. The very communities that EPA somehow thinks they are protecting by hijacking their ability to control their own destiny.

 
 Statement of Terry L. HeadleyCommunicationsWest Virginia Coal Assocation Concerning EPA’s Proposed Revocation of the Spruce Mine Permit 

Mr. Pomponio – Mr. Garvin

 

I’m Terry Headley. I am a public relations consultant for several coal industry organizations. I was born and raised near Chapmanville. My family has a long history in Logan County. In fact, my family, the Dingesses were the first permanent settlers in the area – establishing their farm land that is now the City of Logan. I have generations of family buried in the mountains of Logan and Lincoln counties. I am tied to this land by blood and heritage.

My family also has a long history in the coal industry. One of my ancestors was a partner in one of the first coal companies chartered in Logan County – in 1904. My grandfather spent a lifetime underground and died in 1982 after a 10-year battle with Black Lung. My father was a construction worker in the industry and retired a few years ago.

 

Logan County and the southern coalfields is my home.

 

I am worried and angry…

 

As we have heard from numerous speakers, your apparent intent to veto the three-year-old Spruce permit is potentially devastating to the industry, to our coal miners, our coalfield communities and the state’s economy. This is about more than simply a single permit. It is about nothing less than the future of mining….the future of our state.

 

This action, if you take it, will make it almost impossible to justify future investment in mining in Appalachia. How can a company justify an investment in West Virginia or Appalachia when they can’t be sure that even once a permit is issued, investment made and people hired, the EPA or some other agency can simply change the rules and make the permit worthless on a whim?

 

But beyond that, this action is causing fear and worry in homes across the region. Moms and Dads, whose livelihoods depend on mining, go to bed worried that they may lose their jobs, their homes and their ability to support their families.

 

Entire communities that depend on mining will be put at risk – their lifeblood, the revenues generated by coal, will vanish with the industry, leaving ghost towns across the region. This is not an exaggeration!! These are very real fears.

 

And just as individual communities and our industry vanish, so will roughly 20 percent of the state’s economic base, creating poverty and an exodus from West Virginia that will make the Dust Bowl and the Great Depression pale in comparison.

 

We hear a great deal of talk coming from Washington about “economic justice” and “environmental justice.” There is NOTHING JUST about your action! There is NOTHING FAIR about your action!

 

Likewise, we have heard complaints coming from Washington that the industry has somehow “stoked fear.”

 

Gentlemen, it doesn’t take the industry to stoke fear…You are doing a good job of that yourself. Your agency appears intent on engaging in a war against coal! Your actions are creating the fear and anger that is evident in this room tonight and it is NOTHING short of environmental terrorism! I do not make that statement lightly!

 

Your policies and your actions are hurting people! Your policies and your actions are breeding fear! Your policies and your actions threaten our families and our way of life! And this cannot continue.

 

We urge you to consider your path…making policy is easy when it is done in Washington, behind closed doors and considering nothing but your own viewpoint. Good leaders, however, take into account the impact their actions have on PEOPLE!

PLEASE PUT OUR PEOPLE…OUR FAMILIES…ahead of politics! Do the right thing!