On Mountaintop Mining Veto, EPA Is Guilty of Environmental Hyperbole

On January 13, the Environmental Protection Agency vetoed the issuance of a Clean Water Act permit by the U.S. Army Corps of Engineers to the Mingo Logan Coal Company for the Spruce No 1 Mine in Logan County, West Virginia. This is the first time EPA has used this authority.

We’re in the midst of a difficult economy, and EPA’s unprecedented action will result in the loss of 250 jobs, paying on average $62,000, so you would think the EPA has compelling case against the Spruce No 1 Mine. Unfortunately, you’d be wrong.

I audited the EPA’s veto, titled “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 (“Final Determination”), and what I found was troubling.

The document is pure environmental hyperbole. It is riddled with mistakes, incorrect citations, and false certainty. Indeed, virtually all of the EPA’s definitive claims about the “unacceptable adverse impacts” to non-insect wildlife are unsupported by the literature it cites. Among the lowlights:

  • The EPA’s claim that “6.6 miles of high quality stream” will be buried conveniently omits the fact that 99.6% of the streams are intermittent or ephemeral, that they scored “below average” on a habitat assessment, and that they fall well short of meeting West Virginia’s definition of “high quality” streams.
  • The EPA asserts that five species of fish would be buried, despite the fact that no fish were found at the site.
  • The EPA commits numerous referencing mistakes, including direct two misquotes. Throughout the document, the EPA draws incorrect conclusions from the literature it cites.
  • The EPA has a serious language problem. Science writing is performed in the conditional. EPA, however, almost uniformly uses the declarative case. As its veto is based on a literature review, the EPA repeatedly infers certainty where there is none.

See for yourself.  In Chapter 5, titled “Basis for Determination,” the EPA explains the “unacceptable adverse effects” that justify its decision. Below is table of contents for the EPA’s “Basis for Determination.” For all the sections within which the EPA makes dubious claims, I’ve created a link to my review. Each link contains the EPA’s thesis (or theses) for that section, taken directly from the text of the document, and then a rebuttal in italics.

V. Basis for Determination

A. Section 404(c) Standards

B. Evaluation of Impacts

C. Unacceptable Adverse Impacts on Wildlife within the Spruce No. 1 Mine Project Area

1. Macroinvertebrates

2. Salamanders & Other Herpetofauna

3. Fish

4. Water-Dependent Birds

*A Note on the Legality of the EPA’s Use of “Direct” Impacts To Justify Its Veto

D. Unacceptable Adverse Impacts on Wildlife Downstream of the Discharge of Dredged or Fill Material from the Spruce No. 1 Mine

1. Increases in Pollutants Harmful to Wildlife

a. Selenium

b. Total Dissolved Solids

2. Macroinvertebrates

a. Impacts Due to Changes in Water Chemistry

b. Food Web Effects of Altered Macroinvertebrate Communities

3. Salamanders & Other Herpetofauna

4. Fish

a. Potential To Promote the Growth of Golden Algae

b. Increased Exposure to Selenium

5. Water-dependent Birds

In summary, the EPA has evidence that certain genera of pollution-sensitive insects would be harmed downstream of the Spruce No 1 Mine, due to increases in salinity discharge from the project. Everything else (i.e., all of the EPA’s claims about amphibians, fish, and birds) is either scientifically unfounded or legally irrelevant.

The EPA’s Ad Hoc “Science”

When the EPA first objected to the permit, it was much more honest about the underlying science. In a letter dated September 3, 2009, in which the EPA first expressed its Clean Water Act concerns about the Spruce No 1 Mine to the  U.S. Army Corps of Engineers, it said that

“Since the issuance of the permit in January 2007, new information and circumstances have arisen which justify reconsideration of the permit. Based upon prior research and confirmed in 2008 by research conducted by EPA, we are concerned data were available and was not evaluated…In particular, we are concerned about the project’s potential to degrade downstream water quality, and to cause or contribute to potential excursions of West Virginia’s narrative water quality standards”

The 2008 study cited by the EPA in the letter provided evidence that saline effluent from mountaintop mining operations in Appalachia harmed certain pollution sensitive insects. According to the EPA, this “new information” engendered concerns about “the project’s potential to degrade downstream water quality.” In the Final Determination, however, the EPA states that its “conclusion that the Spruce 1 Mine as authorized would cause unacceptable adverse effects on wildlife is not dependent on a conclusion that West Virginia’s water quality standards will be violated at or downstream of the site (Final Determination p 51).”

Between the September 2009 letter and the January 2011 Final Determination, the EPA changed its justification. In the EPA’s initial objection to the Spruce No 1 Mine permit, it stated that its concern was the degradation of downstream water quality. And by “degradation,” EPA was referring to the extirpation of certain pollution-sensitive insects. But in its Final Determination, the EPA claims that degraded water quality is not its concern. Instead, it broadened its objections to include “unacceptable adverse impacts” to wildlife caused by the Spruce No 1 Mine.  What happened?

It appears as if the EPA believed that its initial objection to the Spruce No 1 Mine-that it would harm pollution-sensitive insects-wasn’t meaty enough to justify an action that would prevent the creation of 250 well-paying jobs. After all, few Americans would rally around an administration that is willing to trade jobs for bugs. So the EPA tried to expand its case against the mine, in order to incorporate “adverse impacts” on birds, amphibians, and fish. This sort of ad hoc “science” would explain why the EPA’s Final Determination is shoddy when it addresses adverse impacts to non-insect wildlife.

Who Governs: EPA or Elected Officials?

So, the EPA is guilty of environmental hyperbole. In its Final Determination, the EPA alleges “unacceptable adverse impacts” to amphibians, fish, and birds, but after you strip away all the pseudoscience, the EPA’s veto is based on the project’s adverse impacts to insects that aren’t even endangered species.

To the average environmental scientist, the extirpation of pollution-sensitive insects alone is enough to justify the shutdown of all surface coal mining in Appalachia. In July 2010, I attended a public peer review of the EPA’s “The Effects of Mountaintop Mines and Valley Fills on Aquatic Ecosystems of the Central Appalachian Coalfields,” and almost every scientist present (there were fourteen) was genuinely shocked-SHOCKED!-at the loss of entire orders (genera) of pollution sensitive insects downstream of surface mines.

I bet 9 out of 10 environmental scientists would oppose mountaintop mining, based solely on its adverse impact to insects. But I also bet that 9 out of 10 American non-scientists (and 10 out of 10 West Virginians) would oppose a plan to forsake 250 well paying jobs in order to protect bugs. Therein lies the rub: Elected officials, not scientists, establish priorities in this country. Or at least that’s the way it’s supposed to work.

In West Virginia, the people have spoken through their elected officials, and their support of the Spruce No 1 Mine is unequivocal and adamant.

In 2010, by a unanimous vote, the West Virginia State Legislature resolved that its definition of “water quality” are satisfied when “the aquatic community is composed of benthic invertebrate assemblages sufficient to perform the biological functions necessary to support fish communities…” In effect, the Legislature was saying that the State of West Virginia is concerned about insects only insofar as they support fish. It was a direct response to the EPA.

Shortly after the EPA’s veto, West Virginia Governor Earl Ray Tomblin led a rally to protest the decision. According to the Governor, “We must stand up and show federal regulators that we will not retreat from their unfair actions. We will continue the fight not just for the Spruce Number One mine but for every coal miner, coal company and for our way of life.”

The State’s entire Congressional delegation also is on record with strong denunciations of the EPA’s veto. Here’s a roundup of statements from their press releases on the matter:

A unanimous legislature, the governor, the entire Congressional delegation…every single statewide elected official in West Virginia gives priority to job growth over insect-protections. This sentiment extends to the local level, too:

The people of West Virginia, through their public officials, have expressed their belief that jobs are more important than insects. The EPA is wrong to reverse these priorities.