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Federal Court Backs EPA’s Veto Of One Of The Largest Surface Mines Ever Proposed In Appalachia

Spruce No. 1 mine. CREDIT: PHOTO COURTESY OF VIVIAN STOCKMAN / OHIO VALLEY ENVIRONMENTAL COALITION
Spruce No. 1 mine. CREDIT: PHOTO COURTESY OF VIVIAN STOCKMAN / OHIO VALLEY ENVIRONMENTAL COALITION

At 2,278 acres acres, down from an original 3,100 acres, the Spruce No. 1 Mine was one of the largest surface mining operations ever authorized in Appalachia. That was, until the EPA vetoed it. On Tuesday, a federal District Court judge upheld the EPA’s revocation of the West Virginia surface mine’s Clean Water Act (CWA) permit, calling it “reasonable, supported by the record, and based on considerations within EPA’s purview.”

At issue was the agency’s veto of a permit that had previously been issued by the U.S. Army Corps of Engineers. The drawn-out case — the mine was first proposed in 1997 — received national attention for its potential implications. With this latest development, the Corps may be more hesitant to grant mountaintop removal permits in the future. The EPA vetoed portions of the Corps’ dredge-and-fill permit issued in January 2007. The permit would have allowed Mingo Logan Coal Company, Inc., a subsidiary of Arch Coal Inc., to bury 6.6 miles of natural headwater streams with mining waste.

“This really is a victory for communities in West Virginia that have been fighting to protect the area and who first challenged the permit in 1998,” Emma Cheuse, a senior associate attorney with Earthjustice who argued on behalf of several Appalachian groups in defense of the EPA’s veto, told ThinkProgress. “To its credit, the EPA finally recognized that this harm would really be unacceptable.”

Cheuse also said that the court upholding the EPA’s veto has important value for communities well beyond West Virginia. “The EPA rarely exercises this power,” she said. “The EPA’s recognition of the science here should be the beginning of a broader look at mountaintop removal across Appalachia.”

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If the Corps was doing its job to protect waters the EPA wouldn’t have had to step in, according to Cheuse. Under the CWA, both agencies have the authority to regulate mining practices that seek to dispose of waste in U.S. waters.

“The Army Corps really should be looking to the EPA as the environmental expert to make sure that they are taking account of the strong science showing the really dangerous impacts of mining waste to water and communities,” said Cheuse. “So far the Corps has even refused to consider many health studies.”

This is the first mountaintop mining permit ever challenged.

According to the EPA, the proposed mine would have dumped 110 million cubic yards of coal mine waste into streams, dynamited of over 2,200 acres of mountains and forestlands, buried more than 35,000 feet of high-quality streams under mining waste, and polluted downstream waters.

The EPA found that the six miles of streams are among the last remaining high-quality streams within a watershed that has been fundamentally altered by prior and ongoing surface coal mining activities. The agency found that the dumping and the burying would be unacceptable and would cause irreversible damage. Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia agreed.

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In a 50-page decision, Jackson said the EPA’s veto was not an “about-face,” as Mingo Logan alleged, but that the agency had been concerned with the proposed discharges from day one. Mingo Logan also alleged that the EPA’s decision to veto the specifications was “arbitrary and capricious” but Jackson found it to be reasonable and supported. Arch Coal responded to the decision with a statement saying they “continue to believe that EPA’s decision was, in fact, ‘arbitrary and capricious,’ but recognize the limits placed on the court in this area.”

The company states that legislation is the clear next step in addressing the retroactive veto question, and that they are evaluating all potential next steps.

Spruce No. 1 Mine would have been located in Logan County, West Virginia in the Spruce Fork Watershed made up primarily of temperate rainforest. It is in the southwestern region of West Virginia, and is one of the most heavily surface-mined counties in the state.

“This is the first mountaintop mining permit ever challenged,” said Cheuse. “It should send a signal that the tide has turned on mountaintop mining.”

Arch Coal contended that the CWA does not give the EPA the authority to retroactively revoke a permit, only to block a permit before it is issued. Arch Coal brought the case to the Supreme Court after an appeals court ruled in favor of the EPA. In March the Supreme Court refused to hear the coal company’s challenge to the withdrawal of the discharge permit and the case was sent back to the U.S. District Court for the District of Columbia.

“When EPA vetoed the permit in 2011, there was a lot of hoopla,” Vernon Halton, Executive Director of Coal River Mountain Watch, a non-profit organization in West Virginia, told ThinkProgress. “From the coal industry and their puppet politicians, it was the end of the world as we know it. A lot of people, even friends of mine in West Virginia, thought that it meant that no more mountaintop removal permits were being granted.”

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But the reality of the situation is different, said Halton. After 15 years of fighting about 2,000 acres are now being protected, but the rest of the permit is still being mined, not to mention the many other thousands of acres of Appalachia.

“Mountaintop removal permits are still being granted, and many others have been granted but not started,” he said. “This decision, since it’s been through this court, appealed, appealed again, and now back to this judge, hopefully settles once and for all that the EPA does in fact have the authority to veto a permit after it has been granted, as the law clearly states.”