A subsidiary of Arch Coal of St. Louis, Missouri, has been denied permission to dump nearly three billion cubic feet of dirt into local headwater streams after blowing up a mountain in West Virginia. The object was to extract coal from a project known as the Spruce No. 1 Surface Mine.
Arch Coal, the second largest coal producer in the U.S., sued the U.S. Environmental Protection Agency (EPA) in 2010 when the agency vetoed a mining permit that had been approved in 2006. The EPA said that new studies published since the permit had been issued showed potential harm to the area’s water quality.
A landmark decision issued Tuesday by the U.S. Court of Appeals ruled that the EPA was within its rights to revoke water permits after another agency had issuing them.
“This is a major milestone in the fight to end the destructive practice of mountaintop removal mining,” Mary Anne Hitt, Sierra Club’s Beyond Coal campaign director, wrote. “Today's ruling affirms EPA's authority to ensure the safety of our waterways and the health of our communities, including by vetoing improper permits issued by the Army Corps of Engineers.”
“The damage from this project would be irreversible,” said Shawn Garvin, the Mid-Atlantic regional administrator for the U.S. Environmental Protection Agency (EPA) which has issued an order to stop the project. “EPA has a duty under the law to protect water quality and safeguard the people who rely on these waters for drinking, fishing and swimming.”
Mountaintop Coal Removal
What Arch Coal was proposing is a relatively new technology called mountaintop coal removal which has often been described as “strip mining on steroids.” Forests are razed and burned. Age-old rocks are blasted through. Giant, 20-story tall shovels and bulldozers tear into the remaining mountain, filling one 240-ton dump truck at a time. Once exposed, the embedded coal seams are carted off for processing.
The remaining rubble is dumped into surrounding valleys, submerging streams and rivers. Toxic chemicals used in the mining process, as well as naturally occurring minerals that are dangerous for wildlife and human consumption, leach out from the debris into the waterways. So far, at least 2,200 square miles (5,632 square kilometers) of the Appalachian mountain ranges have been obliterated, and 1,200 miles (1,920 kilometers) of streams have been buried, according to the EPA.
Mountain top coal removal has been fiercely opposed by local and national environmental groups precisely because of its devastating impact on local water quality. “Many folks here in Appalachia have streams or creeks running through their back yard. Kids from Kentucky to Tennessee grew up fishing and many of us still enjoy heading out with the pole for a lazy Sunday afternoon hoping to snag a trout,” wrote Hitt of the Sierra Club. “Sadly, for many people in Appalachia that pristine ideal no longer exists."
The Spruce No. 1 Surface Mine was first given permission to go ahead in early 2007 when the Army Corps granted Mingo Logan Coal Company, (owned by Arch) a permit for the mining operation. According to the EPA, the Spruce mine would have disturbed 3.5 square miles (9 square kilometers) in the heart of Appalachia and removed up to 450 feet (137 meters) off the top of a mountain. The waste is to be dumped in almost 7.5 miles (12 kilometers) of local streams.
As the largest permitted mountaintop mine in West Virginia at the time, Spruce No. 1 quickly became a rallying point for opponents of the practice. In 2007, the Ohio Valley Environmental Coalition, Coal River Mountain Watch and other environmental groups sued the Corps for issuing the permit, and Mingo Logan agreed to operate only in a portion of the proposed project area, filling only one out of the original six valleys proposed. Although the EPA expressed concern during the corps permitting process, it did not actively oppose the permit at the time.
Locals like Dustin Steele, of Mingo County, West Virginia, began to actively organize protest actions to try to stop the project. Recently a group of activists disguised themselves in business suits and delivery uniforms and attempted to occupy the company headquarters in Missouri.
"I have seen coal wreck everything around me. Arch (has) spent the last 125 years destroying (my) home," Steele said when he locked himself to a potted tree inside the company’s headquarters during the protest. “The struggle continues today as we take action to hold Arch Coal and other coal companies accountable for the damage that they do to people and communities in Appalachia.”
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In early 2010 the EPA intervened and vetoed Spruce No. 1’s permit to use the requested valleys and streams as disposal sites, citing violations of the Clean Water Act. The veto shut down 88 percent of the proposed operation, excepting only the areas where the company was already mining. It was the thirteenth time since 1978 that the EPA had exercised its veto authority. Only twice before has the agency ever revoked a permit, and never for a coal mine.
“EPA has exercised its post-permit authority sparingly over the past four decades,” the agency said in a legal brief. “These streams represent some of the last remaining least-disturbed, high quality stream and riparian resources within the Headwaters Spruce Fork sub-watershed and the Coal River sub-basin and contain important wildlife resources and habitat.”
The agency said that additional data and scientific studies published after the permit had been issued compelled the agency to step in. Some of the studies reflected Mingo Logan’s impact on the area and showed that the project would have an “unacceptable adverse effect” on wildlife, the EPA said.
In April 2010 Mingo Logan sued the EPA over the veto. It said that the agency had the opportunity to intervene during the regulatory process but had no right to rescind the Army Corps of Engineers permit after it was granted. “EPA was involved every step of the way,” Mingo Logan said in a legal brief.
Judge Amy Berman Jackson, who heard the case in 2011, agreed with Mingo Logan. The Clean Water Act, she ruled, did not give post-permit veto power to the EPA. Using caustic language, she accused the EPA of “magical thinking” when they interfered with Spruce No. 1’s water permit. “It 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. Poof!” she wrote in a 2012 opinion.
In 2012, she ruled that the EPA had over stepped its authority.
The state of West Virginia, the U.S. Chamber of Commerce and 34 industry groups applauded her decision. They filed friend-of-the-court briefs stating that every year some $220 billion worth of industry enterprises require permits from the Army Corps of Engineers to discharge pollutants in waterways.
“If EPA has this authority to revise or revoke Corps permits after they issue, over the objections of the Corps and the State, Corps permit holders can no longer be sure that their current or future projects are safe from a similar fate,” the brief stated. “Inevitably, that uncertainty will translate into higher risks in borrowing, less investment, lost jobs and slower growth throughout the U.S. economy.”
The EPA appealed Judge Jackson’s verdict. “Absolute certainty for polluters was not the motivating goal behind the Clean Water Act,” it said in court papers prepared for a March 2013 hearing. “It would be inconsistent with the Act‘s primary objective of protecting waters to decide that the mere issuance of any permit by the Corps – no matter how much harm it authorizes – prevents EPA from issuing a veto determination.”
The EPA and environmental groups noted that Section 404 (c) of the Clean Water Act grants the agency power to revoke permits “whenever,” as needed, in order to do its job. The proposed Arch Coal project required an extraordinary response because it is exceptionally hazardous to the environment, they said.
At a 30-minute hearing on March 14, Judges Karen LeCraft Henderson, Thomas Griffith and Brett Kavanaugh listened carefully to arguments on what the U.S. Congress intended when they wrote Section 404 of the Clean Water Act.
On Tuesday the three judges ruled unanimously for the EPA. They did, however, allow the company to proceed with another part of the lawsuit in which Arch Coal contended that EPA's revoking of the permit was arbitrary and capricious. A decision on that will be made by a lower court.
Meanwhile the protestors have vowed to continue their struggle to stop Arch Coal's other extensive mountaintop coal mining operations. “Today, tomorrow, and every day for the rest of my life I will disrupt business as usual,” Steele wrote on his blog. “From St. Louis to the strip site, from the city to the hollers, wherever they are I will be there fighting for every inch, fighting for every permit, and I won’t stop until Arch is nothing more then a collective bad memory.”