EPA veto of WV mountaintop removal permit upheld again

EPA courtesy illustration
This map shows the extent of the original Spruce Mine proposal, planned for Logan County.

A federal appeals court on Tuesday upheld the U.S. Environmental Protection Agency’s veto of a permit for one of the largest mountaintop removal coal-mining proposals in West Virginia history.

By a 2-1 vote, a panel of the U.S. Court of Appeals for the District of Columbia ruled in favor of the EPA in what was one of the Obama administration’s more controversial mining-related actions.

Judge Karen Henderson wrote that the EPA, in throwing out a Clean Water Act permit for Arch Coal’s proposed Spruce No. 1 Mine, near Sharples, in Logan County, had “considered the relevant factors and adequately explained its decision” when it decided in January 2011 to revoke the company’s previous approval to dump mining waste into two of three watersheds affected by the proposed operation.

The decision backing the merits of the EPA’s decision — the latest chapter in a two-decade legal battle over the mine — follows an appeals court ruling in April 2013 that affirmed that the EPA had the legal authority for the veto of the Spruce Mine, which, in the late 1990s and early 2000s, became a symbol of the efforts by environmental organizations and citizen groups to stop mountaintop removal.

“It’s encouraging to know [the] EPA’s important veto authority and specific denial of the monstrous Spruce No. 1 Mine have now been affirmed twice by a federal appeals court,” said Cindy Rank, mining chairwoman of the West Virginia Highlands Conservancy. “Now it’s time for the industry to follow the science, the EPA, and courts, and finally recognize what the law requires. We need to protect our waters, natural areas and mountain communities, not destroy them any longer for the profit of a few coal companies.”

Neither the EPA nor Arch Coal offered any comment on the appeals court decision.

At issue in the case was a U.S. Army Corps of Engineers-issued permit for the Spruce Mine, an operation that environmentalists had been trying to stop since 1998, when it was first proposed as a 3,113-acre extension of Arch’s Dal-Tex Mine that would have buried more than 10 miles of streams.

Then-U.S. District Judge Charles H. Haden II blocked the permit in 1999, a move that eventually put more than 300 United Mine Workers union members at Dal-Tex out of work. Since then, Arch transferred the site to its nonunion operations, Mingo Logan Coal Co., Haden’s decision was overturned on appeal and the Spruce proposal underwent one of the most detailed environmental studies ever in the coal industry.

Under Section 404 of the Clean Water Act, the corps generally reviews and approves one of the multiple permits mine operators need, one that allows them to bury streams with millions of tons of waste rock and dirt. The law says the EPA can “restrict, prohibit or withdraw corps approval of any site for waste disposal if the discharge will have unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas.”

In January 2007, corps officials issued a permit for a scaled-back 2,300-acre Spruce operation that would bury more than seven miles of streams. The mine eventually was to employ 250 workers and mine about 44 million tons of coal over about 15 years.

EPA officials have questioned the Spruce Mine from the beginning and, in a comment letter submitted to the corps under President George W. Bush in 2006, complained about the potential impact and said more changes in the operation were needed. But the EPA did not take action to formally block the Spruce Mine until 2009, as part of an Obama administration effort to reduce the negative impact of mountaintop removal.

In January 2011, the EPA rescinded the corps’ approval for Arch to dump waste rock and dirt into 6.6 miles of Pigeonroost Branch, Oldhouse Branch and their tributaries.

The agency said it would allow mining to continue on another portion of the site, burying nearly a mile of streams in the Seng Camp Creek watershed, because work there already had begun.

The EPA cited the growing scientific evidence that mountaintop removal mining significantly damages water quality downstream and noted an independent engineering study that found Arch Coal could have greatly reduced the Spruce Mine’s impact.

In a 36-page opinion that was joined by Judge Sri Srinivasan, Henderson wrote that the EPA had properly considered the potential impact of the mine, including an examination of downstream water quality that Arch Coal lawyers had said the EPA was not legally permitted to include in its analysis of the permit.

Also, the EPA had cited new scientific studies about mining’s adverse impact that were published after the initial permit approval, as well as specific data that detailed damage to water quality that the scaled-back mining at the Spruce site already had caused.

Judge Brett Kavanaugh, in a strongly worded dissenting opinion, said the permit should have been sent back to the EPA with instructions that the agency examine the costs and benefits of its veto action, criticizing the agency’s examination of potential damage to aquatic life as an “utterly one-sided analysis.”

“The bottom line is that the EPA considered the benefits to animals of revoking the permit, but [the] EPA never considered the costs to humans — coal miners, Mingo Logan’s shareholders, local businesses, and the like — of revoking the permit,” Kavanaugh wrote.

As part of its appeal, though, Arch Coal subsidiary Mingo Logan had focused on a much more narrow argument about costs, saying that the EPA had not considered “the costs Mingo Logan incurred in reliance on the permit,” between the time that the corps approved it in 2007 and the EPA revoked large parts of it in 2011.

And in her opinion, Henderson said that Mingo Logan had not raised these “reliance costs” at earlier stages — during EPA comment periods, a public hearing and at the district court level — and, therefore, had forfeited its ability to argue them on appeal. Any argument that the EPA’s action was “entirely unfair” was blunted by the company’s failure to raise such issues earlier, Henderson wrote.

“And even if the EPA could be tagged with the ‘bait-and-switch’ charge — a proposition we roundly reject — Mingo Logan’s failure to prove up its costs on review by the district court should mute its lament,” Henderson wrote.

Henderson concluded that the EPA’s “post-permit” veto authority is “a mighty power and its exercise will inevitably leave a permittee feeling as if the rug has been pulled out from under it. Nonetheless, the power is one the Congress has authorized the EPA to exercise, and where, as here, the EPA has adequately explained why mine spoil disposal ... would cause ‘unacceptable adverse effect[s]’ ... we must uphold its decision.”

Henderson was originally appointed to a federal district court by President Ronald Reagan, and then to the appeals court by President George H.W. Bush. Srinivasan is an Obama appointee. Kavanaugh was appointed by President George W. Bush.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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