EPA Properly Changed Stance on Dump Sites

     (CN) – The U.S. Environmental Protection Agency properly withdrew its approval of two West Virginia dump sites for coal mine discharge, a federal judge ruled.
     Sections 401, 402 and 404 of the Clean Water Act require the EPA to create a system of permits that regulates the discharge of pollutants into the nation’s waterways, which the U.S. Army Corps of Engineers then relies on to authorize the disposal of dredge or fill materials at certain sites.
     Section 404 also gives the EPA the power to “veto” the specification of a disposal site before and after the Corps issues a permit if the EPA determines that discharge will cause unacceptable harm to wildlife and their habitat.
     Mingo Logan Coal Company operates the Spruce No. 1 Mine in West Virginia, one of the largest surface mines in the state. In 1998, it applied to West Virginia for section 402 permits and to the Corps for section 404 permits to discharge water from sediment ponds and dredged material into several surrounding streams. After ten years of review by various agencies, the Corps issued discharge permits and site specifications despite the EPA’s environmental concerns.
     But in September 2009, the EPA issued a final determination revoking specification for two of the discharge sites on the grounds that the fill would harm wildlife within the project area and downstream from the mine.
     Mingo Logan challenged the determination in 2010, claiming the agency lacked authority to revoke its permits for the sites and that the agency’s decision was arbitrary and capricious in violation of the Administrative Procedure Act.
     Though the court found in March 2013 that the EPA did not have the statutory authority to invalidate a permit already issued by the Corps, the D.C. Circuit reversed on appeal and found that the EPA did have that authority.
     U.S. District Judge Amy Berman Jackson in Washington, D.C., affirmed Tuesday.
     Mingo Logan claimed the EPA’s decision to revoke its permit was unlawful because it did not provide any new evidence that the fill sites will cause unacceptable environmental harm. Jackson pointed out that Congress used the word “whenever” to refer to the EPA’s section 404 veto authority, meaning that the EPA has broad authority when choosing to use it.
     Mingo Logan cannot require the EPA to have “substantial new information” before it can revoke the discharge permit because the EPA repeatedly expressed concern over the mine’s discharge plans throughout the decade-long permit approval process. Mingo Logan also cannot cite any evidence that it satisfied the EPA’s concerns, nullifying the need to provide new information, the ruling states.
     Arguments that the EPA made an unlawful about-face by rescinding the permit when it did not initially block Mingo Logan’s permit application fail because the agency is not required to formally declare when it intends to use its veto power, according to the ruling.
     “Declining to take a position when nothing requires the agency to take a position cannot serve as the foundation for an argument that the agency changed course when it took an official position for the first time,” Jackson wrote.
     She also shot down Mingo Logan’s arguments that the EPA did not demonstrate that using the streams as discharge sites would cause unacceptable harm to wildlife and their habitat.
     In its final determination, the EPA concluded that discharge would bury the Pigeonroost Branch and Oldhouse Branch streams, killing all the wildlife living in them, and would effectively destroy “6.6 miles of high quality stream habitat,” according to the ruling.
     It also noted that discharge would eradicate wildlife within 6 miles of the streams used as dump sites, including 84 kinds of shellfish and other microinvertebrates, 46 species of reptiles and amphibians and 5 kinds of birds, and that the proposed mitigation measures were inadequate to prevent this level of harm.
     Jackson concluded that the EPA’s decision was in keeping with its analysis of the data, and that “Mingo Logan’s arguments do not warrant a contrary conclusion.”
     She also found that the agency properly considered Mingo Logan’s mitigation measures, and included a meticulous discussion about why it deemed them insufficient that was supported by the relevant facts.
     “Based on the analysis above, the court finds that EPA is entitled to judgment as a matter of law. EPA’s conclusion that the discharge of dredged or fill material into Pigeonroost Branch and Oldhouse Branch would cause unacceptable adverse effects … is reasonable, supported by the record, and within EPA’s authority to reach,” the ruling states.
     Though she said that this finding is “dispositive to the case,” Jackson chose to elaborate on additional reasons that the EPA’s final determination was valid
     Mingo Logan argued that the EPA could not revoke its section 404 permit over concerns about downstream effects on wildlife from the discharge of polluted water in sediment ponds because that is covered by the section 402 permit, which is regulated by West Virginia.
     In rejecting that argument, Jackson pointed out that Mingo Logan was erroneously framing the issue as one of attempted regulation when the EPA simply concluded that “placement of dredged and fill material into [the streams] above the ponds will negatively affect the wildlife below the ponds.”
     “EPA’s withdrawal of the specification in the exercise of that function [to assess potential harm to area wildlife and water supplies] has the effect of prohibiting the proposed discharge of dredged and fill material in certain locations – a matter that is not within West Virginia’s regulatory authority under section 402 – and it will only impact the sediment ponds – which are subject to West Virginia’s control – to the extent that the discharged water will no longer include those contaminants emanating from the proposed valley fills,” the ruling states.
     EPA spokesperson Robert Daguillard applauded the decision, saying it underscored the agency’s commitment to “working with the state, industry and other stakeholders to ensure clean water and a healthy economy for Appalachian communities.”

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