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JULIA ROBERTS GOAD

Staff Writer

MORGANTOWN - In the latest move the fight to obtain mining permits for what would be the state’s largest mountaintop removal mine, environmental groups are arguing permitting should not be an economic decision.

A permit was issued a permit for Arch Coal Spruce No. 1 five years ago by the U.S. Army Corps of Engineers. However, last year the EPA retroactively vetoed the permit under the Clean Water Act, saying the mine would create pollution that would threaten the health of those living nearby.

Then in March of this year, U.S. District Court Judge Amy Jackson ruled the Mingo Logan permit is valid. The conclusion said the “EPA’s interpretation of [the Clean Water Act]…is not reasonable.”

In addition, the Court also wrote that “[the Clean Water Act] does not give EPA the power to render a permit invalid once it has been issued by the Corps.”

The West Virginia Highlands Conservancy, Coal River Mountain Watch, the Natural Resources Defense Council, Ohio Valley Environmental Coalition and the Sierra Club filed a brief with the U.S. District Court of Appeals saying Jackson’s decision was wrong, as permits are never ruled “final,” but are issued on the condition that mines’ impact on the environment stay within legal limits.

The brief said the decision to allow the permit to move forward should be overturned “to prevent unacceptable hard to vital West Virginia waterways.”

“A Clean Water Act permit is never truly final in the way the district court suggested because it always remain subject to potential agency action necessary to protect the environment,” the brief said.

The permit for the Spruce Mine had been approved after a 10-year regulatory process that included review by the EPA. The U.S. Army Corps of Engineers awarded the Section 404(c) permit, which is a requirement for constructing clean valley fills, a process used in surface coal mining.

Mingo Logan Coal Company - which had been awarded the Spruce Mine permit - was poised to invest $250 million in the Spruce Mine project.

However the brief argues that it is the EPA’s job to protect the environment, and that the economic impact of the Spruce mine should not be a factor in the permitting process.

“The district court erroneously imported economic policy preferences of industry into its consideration of a statutory question in which economic considerations are irrelevant.” the brief said. “the purpose behind Section 404(c) shows that environmental concerns trump economic ones, such that economic policy considerations should carry no weight in this Court‘s interpretation of whether EPA may issue a Section 404(c) determination after the Corps has issued a permit.”

The EPA appealed ruling in July, and the West Virginia Department of Environmental Protection has indicated they would also file a brief in the case. Arch Coal has until Sept. 4 to file a response.