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EPA WINS ANOTHER ROUND IN COURT ON SPRUCE MINE VETO


Publication: THE CHARLESTON GAZETTE
Published: Wednesday, October 01, 2014
Page: 1A
Byline: KEN WARD JR. STAFF WRITER

The U.S. Environmental Protection Agency on Tuesday won another round in the long legal saga involving one of the largest mountaintop removal mining permits in West Virginia history.

U.S. District Judge Amy Berman Jackson concluded that the agency's veto of a Clean Water Act permit for Arch Coal's Spruce No. 1 Mine in Logan County was "reasonable, supported by the record, and based on considerations within EPA's purview.

In a 50-page opinion, the judge ruled with EPA on the merits of the agency's January 2011 decision to use its water pollution oversight authority to rescind a permit that had been previously issued to Arch Coal by the federal Army Corps of Engineers.

The EPA veto has been the subject of much criticism from coal company officials and coalfield political leaders, who viewed the move as unfair and as part of a broader Obama administration effort to destroy the mining industry.

Neither EPA officials nor Arch Coal offered an immediate comment on Tuesday's ruling.

The decision comes after a decision in March by the U.S. Supreme Court not to take up Arch Coal's challenge of EPA's legal authority to veto the permit in the first place.

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.

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.

Arch Coal's Mingo Logan subsidiary appealed the EPA veto. In a March 2012 ruling, 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 ruling a year later, 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.

In Tuesday's ruling, Berman Jackson said that she was "not unsympathetic to Arch Coal's concerns about "the importance of finality in the permitting process, saying that was part of her reason for previously ruling against EPA. Noting that decision was overturned, the judge wrote in Tuesday's ruling, "that battle has already been fought and lost, and this court is not free to take up the issue again.

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

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