Arch Coal Denied Permission to Blow Up West Virginia Mountain

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CorpWatch Blog

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."

Permit Wars

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."

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.

Court Battles

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."

* Editor's Note: This story was revised from a previous version written before the verdict.

AMP Section Name:Natural Resources
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