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Appeals court backs EPA's veto of Spruce Mine

CHARLESTON, W.Va. -- The U.S. Environmental Protection Agency was clearly within its legal authority when it rejected a permit for one of the largest mountaintop removal mines in West Virginia history, a panel of three federal appeals court judges ruled Tuesday.

The U.S. Court of Appeals for the District of Columbia panel -- made up of three Republican-appointed judges -- reversed a lower court ruling that had thrown out the EPA's veto of the Clean Water Act permit for Arch Coal Inc.'s Spruce Mine in Logan County.

Writing for the unanimous panel, Judge Karen LeCraft Henderson said federal law gives the EPA authority to veto permits that agency officials believe the U.S. Army Corps of Engineers was wrong to issue.

"The Congress made plain its intent to grant the [EPA] administrator authority to prohibit/deny/restrict/withdraw a specification at any time," Henderson wrote in a much anticipated 15-page decision.

Coal industry officials and coalfield politicians have argued that the EPA did not have the legal power to veto the Spruce Mine permit after it was issued. Their complaints about the EPA's veto have been at the heart of their campaign to paint the EPA as a rogue agency carrying out an illegal effort to destroy the Appalachian coal industry.

Under the law as outlined in Tuesday's court ruling, the EPA has broad authority to veto the corps' Clean Water Act "dredge and fill" permits, but only after EPA officials have determined the proposed activity would have an "unacceptable adverse effect" on the environment.

"Today's decision is a total vindication of the Clean Water Act and EPA's vital authority to protect all American communities from all kinds of environmental harm," said Emma Cheuse, an Earthjustice lawyer who filed a legal brief for citizen groups supporting the EPA's veto. "At bottom, it is a recognition that EPA and the Obama administration are on the right track in trying to deal with the devastating impacts of mountaintop removal."

EPA spokeswoman Alisha Johnson said agency officials are pleased with the ruling. Arch Coal did not respond to a request for comment.

Rep. Nick J. Rahall, a West Virginia Democrat whose district includes the mine site at issue, blasted the court ruling and promised to reintroduce previously unsuccessful legislation to strip the EPA of its veto authority.

"Today's ruling makes clear that congressional action will be needed," Rahall said.

Jason Bostic, a vice president of the West Virginia Coal Association, agreed.

"I can't imagine Congress intended things to work this way," Bostic said.

At issue in the Spruce case was an Army Corps-issued permit for the Spruce No. 1 Mine, an operation 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.

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 nonunion 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.

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 the more than 40 years that the EPA has had this veto authority, it has used it 13 times.

In challenging the EPA's Spruce Mine veto, lawyers for Arch Coal argued that the agency did not have authority to veto a permit after it was issued. The company also made a variety of arguments about the science behind the EPA's decision. A lower court that overturned the EPA veto addressed only whether the EPA had veto authority, so that was the only matter considered by the appeals court.

Corps officials in January 2007 issued a permit for a scaled-back 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 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 impacts.

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."

Arch Coal's Mingo Logan subsidiary appealed the EPA veto. In a March 2012 ruling, U.S. District Judge Amy Berman Jackson sided with the company, saying the veto was "a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute."

In its Tuesday decision, the appeals court said the Clean Water Act contains "unambiguous language" that "manifests the Congress's intent to confer on EPA a broad veto power extending beyond the permit issuance."

"Section 404 imposes no temporal limit on the administrator's authority to withdraw the corps' specification, but instead expressly empowers him to prohibit, restrict, or withdraw the specification 'whenever' he makes a determination that the statutory 'unacceptable adverse effect' will result," the appeals court said.

Henderson, who wrote the appeals court decision, was appointed by President George H.W. Bush. The other two judges who heard the case -- Thomas B. Griffith and Brett M. Kavanaugh -- were appointed by George W. Bush.

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


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