The Register-Herald, Beckley, West Virginia

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March 24, 2012

Judge: EPA veto of mine permit was overreaching

WASHINGTON — The U.S. Environmental Protection Agency exceeded its authority last year in revoking water pollution permits that another agency had issued for one of West Virginia’s largest mountaintop removal coal mines, a federal judge in Washington, D.C., ruled Friday.

In siding with St. Louis-based Arch Coal, U.S. District Judge Amy Berman Jackson declared the permits were valid. The U.S. Army Corps of Engineers had issued the permits for the 2,300-acre Spruce No. 1 mine in Logan County.

“This is a huge victory for West Virginia and our coal miners,” said Gov. Earl Ray Tomblin, who urged EPA Administrator Lisa Jackson “to admit that they have gone too far.”

“Issue our permits so that we can put our people back to work and provide the resources that will power America,” he said.

The EPA didn’t immediately comment, but Arch spokeswoman Kim Link said the company was pleased with the decision. So, too, was the West Virginia Coal Association, which applauded the court “for taking EPA to task for overstepping its authority in order to wage a regulatory war on the West Virginia coal industry.”

Vice President Jason Bostic said the EPA “employed magical thinking” to obtain a result the judge declared “illogical and impractical.”

“The judge accurately equated EPA’s actions to that of a ‘disappointed player’s threat to take his ball and go home when he didn’t get to pitch,”’ he said.

The EPA in January 2011 used its veto power for only the 13th time since 1972 to overturn a permit the corps had issued under the federal Clean Water Act. It was the first time the EPA had acted on a previously permitted mine.

The agency said at the time it reserves that power “for only unacceptable cases.”

A coalition of environmental groups issued a joint response to the ruling, calling it a sad day for not only people who live near mountaintop removal mines, “but for all Americans who understand the need to protect our waterways, and the health of communities that depend on them.”

The Sierra Club, Ohio Valley Environmental Coalition, Coal River Mountain Watch and West Virginia Highlands Conservancy urged EPA to appeal, arguing the agency must be able to fully protect the region’s waters.

“Appalachian people are struggling to stop the permanent destruction of their treasured waters and communities,” they said. “We urge the EPA to continue exercising its full authority under the law to protect these iconic landscapes and waters.”

Mountaintop removal is a highly efficient but particularly destructive form of strip mining that blasts apart mountain ridge tops to expose multiple coal seams. The resulting rock and debris is dumped in streams, creating so-called valley fills.

As Arch envisioned it, the Spruce mine would have buried seven miles of streams. It planned to invest $250 million in the project, creating some 250 jobs, but the mine has been delayed by lawsuits since it was permitted.

EPA ruled that destructive and unsustainable mining practices would cause irreparable environmental damage and threaten the health of communities nearby.

But the EPA’s assertion that it has the right “to unilaterally modify or revoke a permit that has been duly issued by the corps” is incorrect and unreasonable, the judge wrote. “This is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute.”

Her ruling said EPA’s argument “posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration.”

Jackson said the EPA’s logic is not only “logistically complicated” but puts coal companies seeking permits “in the untenable position of being unable to rely upon the sole statutory touchstone” for measuring their compliance with the Clean Water Act — the permit.

It’s unreasonable, she wrote, “to sow a lack of certainty into a system that was expressly intended to provide finality.”

The National Mining Association agreed.

“The current permitting process is already a protracted and complicated affair,” NMA President Hal Quinn said. “If we are to encourage investments, grow our economy and create jobs, companies need the certitude their success in obtaining permits will not be later robbed by the whims of EPA.”

Mining already under way in a small portion of the Spruce site wasn’t affected by the EPA’s ruling, but it prohibited new, large-scale operations in other areas.

The veto move enraged both the coal industry and West Virginia politicians, several of whom have since introduced bills to try to rein in the EPA.

U.S. Sen. Jay Rockefeller said the dispute has always been a simple matter of “basic fairness,” and fellow Democratic Sen. Joe Manchin made the issue his first piece of federal legislation. Manchin called the ruling “a damning assessment of what happens when an agency puts personal agendas ahead of the law and the scope of agency authority.”

Rep. David McKinley, R-W.Va., meanwhile, said it’s also “a strong warning to the Obama administration’s EPA that they will not be allowed to run roughshod over other federal agencies and the rights of law-abiding companies.”

Fellow Republican Rep. Shelley Moore Capito said state and federal regulators must find a balance between environmental protection and economic development.

“There has to be a middle ground here to honor our resources and allow miners to put food on the table,” she said.

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