EPA Guilty of Environmental Hyperbole in Mountaintop Mining Veto

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On January 13, 2011, the Environmental Protection Agency (EPA) 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 the EPA has used this authority since the Congress passed the Clean Water Act in 1972. 

We are 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 one would think that the EPA has compelling case against the Spruce No. 1 Mine. Unfortunately, that is not the case. 

An audit of the EPA’s veto, “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’),” reveals some troubling findings. 

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 percent 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 two direct 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.

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—including  all of the EPA’s claims about amphibians, fish, and birds—is either scientifically unfounded or legally irrelevant. The Appendix addresses these issues in detail.