EPA Was Right to Say No to WV Coal Dumping

(CN) — The Environmental Protection Agency properly withdrew its approval of two West Virginia dump sites for coal-mine discharge that would fill more than six miles of stream and kill hundreds of thousands of animals, the D.C. Circuit 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 10 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.

The agency found that the fill would bury 6.6 miles of stream, eliminating millions of macroinvertebrates which form the foundation of the food chain. It estimated the fill would kill 250,000 salamanders, as well as frogs, snakes, and turtles, and directly affect the birds and mammals that feed on them.

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 a federal judge 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 agency did have that authority.

On remand, U.S. District Judge Amy Berman Jackson ruled that 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 did not cite any evidence that it satisfied the EPAs concerns, Jackson found.

The D.C. Circuit affirmed her decision Tuesday in a 2-1 ruling.

Mingo Logan's offhand references to the "millions of dollars" it spent in reliance on the permit was "never raised in the context of a claim that the EPA must balance these costs against the environmental effects it identified," so that argument was waived, Judge Karen Henderson wrote for the majority. (Emphasis in original.)

Further, the appeals court said that the EPA reasonably rejected the mining company's permit due to concerns about water quality downstream from the valley fill, even though West Virginia decided that the fill would not cause water-quality problems downstream.

The EPA is expressly authorized to assess the impact the discharge will have on wildlife, which requires making its own finding about downstream pollution.

The agency's decision "does not intrude on West Virginia's authority to regulate water quality under section 402 because the EPA is not regulating the discharge of pollutants into West Virginia waters downstream from the fill. It is instead assessing whether discharging spoil into a particular stream will produce 'adverse effect[s]' on wildlife," Henderson said.

Judge Brett Kavanaugh dissented, writing that Mingo Logan's costs spent in reliance on the permit should have been fully considered.

"The bottom line is that EPA considered the benefits to animals of revoking the permit, but EPA never considered the costs to humans — coal miners, Mingo Logan's shareholders, local businesses, and the like — of revoking the permit. In my view, EPA's utterly one-sided analysis did not come close to satisfying the agency's duty under the Administrative Procedure Act and relevant Supreme Court precedents," Kavanaugh said. (Emphasis in original).

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