Last updated: March 25. 2014 2:41PM - 1019 Views
Ken Ward Jr. The Charleston Gazette



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(MCT) CHARLESTON, W.Va. — The U.S. Supreme Court has declined to take up the continued efforts by Arch Coal lawyers to overturn a federal government veto of the permit for one of the largest mountaintop removal coal mines in West Virginia history.


The move, announced Monday, is a victory for the U.S. Environmental Protection Agency and for coalfield residents who continue to oppose mountaintop removal, citing scientific findings that the practice seriously damages water quality and that residents who live near large-scale surface mines are at great risk of harmful diseases and premature death.


“The coal industry has falsely painted the Spruce Mine veto as an example of EPA overreach and a ‘war on coal,’ when in fact, EPA’s authority to veto this permit is obvious from the face of the statute and EPA’s decision is based on clear scientific evidence of serious environmental harm from mining,” said Jim Hecker, environmental enforcement director at Public Justice and co-counsel in the 1998 case that initially blocked the Spruce Mine.


Arch Coal had asked the court to overturn an April 2013 decision by the U.S. Court of Appeals for the District of Columbia, which had backed EPA and overruled a lower court judge’s conclusion that the federal agency lacked the legal authority to veto a Clean Water Act permit the federal Army Corps of Engineers had approved for the mine.


The case could now go back to U.S. District Court, where Arch Coal could continue its legal fight by arguing that EPA did not follow proper procedures when it vetoed the permit.


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, 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 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.”


Arch Coal officials did not respond to a request for comment. The National Mining Association issued a statement that said the Supreme Court’s decision not to hear the case “allows a cloud of uncertainty to hang over any project and companies will lack the assurance required to make investments and create U.S. jobs.”


EPA spokeswoman Alisha Johnson said the court’s decision “preserves the status quo and does not create uncertainty.”


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


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(c) 2014 The Charleston Gazette (Charleston, W.Va.)


Visit The Charleston Gazette (Charleston, W.Va.) at www.wvgazette.com


Distributed by MCT Information Services.

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