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In January 2011, the EPA rescinded the corps' approval for Arch to dump waste rock and dirt into 6.6 miles of Pigeonroost Branch, Oldhouse Branch and their tributaries.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 kw...@wvgazette.com or 304-348-1702.