Get Connected
  • facebook
  • twitter
  • Sign In
  • Classifieds
  • Sections
Print

EPA's veto of Spruce Mine permit overturned

Read the ruling here

 

CHARLESTON, W.Va. -- A federal judge has overturned the Obama administration's veto of the largest mountaintop-removal mining permit in West Virginia history, saying the agency greatly oversteps its authority in blocking the controversial project.

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 already was issued by the U.S. Army Corps of Engineers.

"This is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute," Jackson wrote in a 34-page opinion that's been highly anticipated by all sides in the mountaintop-removal debate.

Jackson called the language at issue in the law unclear and confusing, but said the EPA's reading was not a reasonable interpretation.

The decision is a major victory not only for mine operator Arch Coal Inc. but also for the coal industry and for Appalachian political leaders who have been waging a bitter campaign against the EPA's crackdown on mountaintop removal.

"We're pleased the district court has ruled in our favor -- confirming that our Spruce No. 1 permit remains valid," said Kim Link, a spokeswoman for St. Louis-based Arch Coal.

Hal Quinn, president of the National Mining Association, said the ruling "struck another blow for restoring the rule of law and regulatory certainty by rejecting the EPA view that it has unbounded authority to retroactively revoke permits issued by another federal agency."

The EPA did not comment on the ruling Friday.

Mary Anne Hitt, director of the Sierra Club's Beyond Coal Campaign, said the environmentalist group is disappointed with the decision and "fully anticipates" that the EPA will appeal.

"If this permit goes forward and the proposed mining takes place," Hitt said, "it will have dire consequences for families and their homes, water and land."

Still pending in federal court in Washington is another case in which the National Mining Association and various coal-producing states are challenging new water-quality guidance the EPA issued to try to reduce impacts of surface coal mining in Appalachia. A hearing in that case is scheduled for June 1.

At issue in the Spruce case was an Army corps-issued permit for the Spruce No. 1 Mine, an operation that environmentalist groups have 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, putting more than 300 United Mine Workers union members at Dal-Tex out of work. Since then, Arch has transferred the site to its non-union operations and the Spruce Mine has undergone 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 these permits, which allow mining operators to bury streams with millions of tons of waste rock and dirt. Congress gave the EPA broad authority to step in and block such waste dumping if it believes the damage is too great or could have been avoided.

Corps officials in January 2007 issued a permit for a scaled-back version, a 2,300-acre operation that would bury more than seven miles of streams. The mine eventually would 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 impacts and said more changes in the operation were needed.

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 Clean Water Act section at issue in the case gives the EPA authority to prohibit the dumping of waste into streams and grants the agency authority for the "withdrawal" of streams or stream segments as waste-dumping sites. The law says the EPA can use that authority "whenever" the agency determines a permit "will have an unacceptable adverse effect on municipal water supplies, shellfish beds, and fishery areas . . . wildlife or recreational areas."

When deciding such cases, courts generally are supposed to defer to the language Congress passes, if they believe lawmakers have spoken directly to the precise question at hand. If Congress was not clear on the matter, courts generally are supposed to defer to agency interpretations, unless they conclude the agency reading of the law isn't reasonable.

Jackson wrote that she could have overruled the EPA by simply concluding that the statute does not specifically give the agency authority to veto permits that the corps already has issued.

However, the judge did a further analysis, saying, "It is undeniable that the provision in question is awkwardly written and extremely unclear." Even giving the EPA deference, the Obama appointee said, the agency's reading of the law is "unreasonable."

"It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration," the judge wrote. "Poof! Not only is this nonrevocation-revocation logistically complicated, but the possibility that it could happen would leave permittees in the untenable position of being unable to rely upon the sole statutory touchstone for measuring their Clean Water Act compliance: the permit.

"It is further unreasonable to sow a lack of certainty into a system that was expressly intended to provide finality."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


Print

User Comments