By Bebe Raupe
Oct. 1 — A federal judge has upheld the Environmental Protection Agency's revocation of a West Virginia surface mine's Clean Water Act permit, calling the agency's action “reasonable” and within its purview (Mingo Logan Coal Co. v. EPA, D.D.C.
Ruling Sept. 30 in a case mining interests have said epitomizes the agency's “war on coal,” Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia concluded the EPA “did not drastically change its position” in 2011 when it vetoed a U.S. Army Corps of Engineers-issued Section 404(a) permit for Arch Coal's Spruce No. 1 Mine.
In a 50-page decision, Jackson said the EPA's veto was not an “about-face,” as coal interests allege, but rather an exercise of the agency's water pollution oversight authority in a situation where “the record demonstrates that EPA harbored consistent misgivings throughout the permit application process.”
At issue was the EPA's veto of portions of a dredge-and-fill permit issued in January 2007 by the corps, which would have allowed Mingo Logan to bury 6.6 miles of natural headwater streams with mining waste.
While the EPA originally did not contest the permit for the Spruce No. 1 coal mine, it later determined that the surface mining discharge into two specified streams would have an “unacceptable adverse effect” on wildlife, especially in downstream waters, and revoked the permits for discharges into those streams in January 2011.
Jackson granted the EPA summary judgment, affirming that it has the authority under Section 404(c) of the Clean Water Act to withdraw its specification of the disposal site after the corps had already issued a permit under Section 404(a).
Stating she is “not unsympathetic” to Arch Coal's concerns about “the importance of finality in the permitting process,” Jackson said the EPA may consider downstream effects under Section 404(c) using stricter standards and, in this case, the agency successfully demonstrated that “unacceptable adverse effects” would be caused by the proposed discharges.
EPA spokeswoman Liz Purchia told Bloomberg BNA Oct. 1 the agency is pleased that the court upheld its decision to use the Clean Water Act in this case.
“While we are still reviewing the ruling, EPA remains committed to working with the state, industry and other stakeholders to ensure clean water and a healthy economy for Appalachian communities,” Purchia said.
This is only the 13th time that the EPA has exercised its authority under the Clean Water Act to deny corps-permitted discharge of dredged or fill material into U.S. waters and the first to protect waterways from mining waste, according to Earthjustice, which argued the case on behalf of several Appalachian environmental advocacy groups supporting the EPA's veto.
“EPA has exercised its veto authority with care, acting only in circumstances where the harm is truly extreme and unacceptable and where EPA action was necessary to prevent such harm,” Earthjustice said in a Sept. 30 announcement.
Neither Arch Coal nor Mingo Logan officials responded to Bloomberg BNA's request for comment on the case.
The ruling underscores a “problem growing more dangerous every day,” Luke Popovich, vice president for external communications at the National Mining Association, told Bloomberg BNA. “EPA has the discretion to act but lacks the judgment to act responsibly. It is now for Congress to restore common sense and curb the dangerous overreach by EPA.”The NMA is one of more than 30 groups that filed amicus briefs in support of Mingo Logan's position.
Another is the U.S. Chamber of Commerce, which said on its litigation website that the ruling could have “tremendous consequences” for a variety of business concerns, including residential and commercial construction, farming and manufacturing.
“To put the question's importance in perspective, the Corps issues approximately 60,000 Section 404 permits a year,” the chamber said, adding that “over $220 billion of investment annually is conditioned on the issuance of these discharge permits.”
The judgment follows a March decision by the U.S. Supreme Court not to review the case, sending it back to the district court for assessment of the veto's merits (Mingo Logan Coal Co. v. EPA, U.S., No. 13-599, cert. denied 3/24/14; 2014 WLPM, 3/26/14).
In 2012, the district court ruled that EPA lacked authority to veto the permit, but did not address the scientific merits of the agency's decision.
That ruling was overturned in 2013 by the U.S. Court of Appeals for the District of kColumbia Circuit , which upheld the EPA's veto authority whenever it sees unacceptable harm, including after a permit has been issued (2013 WLPM, 4/24/13).
Mingo Logan petitioned for en banc review of the case, but the D.C. Circuit denied the request (2013 WLPM, 7/31/13).
Although Jackson had ruled in 2012 that the EPA overstepped its authority, after reviewing the scientific basis for the veto she said the agency's action was “reasonable, supported by the record, and based on considerations within EPA's purview.”
The EPA's veto decision was not “arbitrary and capricious” nor did it violate the Administrative Procedure Act, as Mingo Logan alleged, she said.
Jackson said the EPA successfully explained that, even if wildlife loss may be deemed to be acceptable in some other location, eradication of wildlife within the 6.6 miles of affected West Virginia streams was unacceptable because “a large number and wide variety of species” live there and they represent “some of the last, rare and important high quality streams in the watershed.”
To contact the reporter on this story: Anandashankar Mazumdar in Washington at email@example.com
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