EPA Trashes Economic Growth, Jobs, and the Rule of  Law
By William Perry Pendley, Mountain States Legal Foundation

As Congress seeks to reign in the most out-of-control federal  agency in Washington, the Environmental Protection Agency (EPA), folks in West Virginia wonder whether relief from the E:A’s empire building, enforcement actions, and edits will come in time.

Coal mining is crucial to West Virginia’s economy; in 2009, for example, it employed more than 30,000 people directly and 105,000 people indirectly and paid $2 billion in wages.  Forty percent of the State’s coal is extracted by surface mining, during which the overburden created is used to re-contour the mined area to approximate original contour; but, because not all overburden can be returned to the mined area and because of the state’s terrain, the only feasible disposal site for much overburden is in adjacent hollows.  Those hollows, even if they carry water only as runoff during or following rainstorms, constitute, under the Clean Water Act (CWA), “navigable waters”. Thus, surface mining in West Virginia often requires a CWA Section 404 permit from the U.S. Army Corps of Engineers (Corps).

In Logan County in southwestern West Virginia, Mingo Logan Coal Company, a subsidiary of Arch Coal, Inc., operates a coal mine known as Spruce No. 1. in March 1997, Ming Logan sought a permit from the Corps, pursuant to Nationwide Permit 21; however, after years that process, which involved the EPA, ended when, in a federal lawsuit by environmental groups that did not implicate Spruce No. 1, a district court enjoined use of Nationwide Permit 21. The Corps withdrew its proffered permit.

In March 1999, Mingo Logan applied for a Section 404(a) permit.  Notwithstanding the two-year process just completed, the Corps began anew; meanwhile, Spruce No. 1’s project was modified.  Instead of recovering nearly all of the coal, only 75% will be recovered: reducing the acreage impacted from 3,113 to 2,278; halving the spoil to be removed; and, cutting the acres of “navigable waters” affected from 12 to 8.11 acres, which include: 0.12 acres of wetland (an abandoned farm pond), 1.83 acres o ephemeral (storm runoff only) streams, 6.13 acres of intermittent (seasonal only) streams, and 0.034 acres of a perennial (permanently flowing) stream.

In March 2006, the Corps released its sixteen hundred page Draft Environmental Impact Statement (EIS), the first of its kind for an individual West Virginia surface mine, in which five state and federal agencies, including the EPA, participated.  In September 2006, the Corps released a Final EIS, which included 58 pages addressing the EPA’s comments on the Draft EIS. In January 2007, the Corps issued Mingo Logan a Section 404 permit for Spruce No. 1; however, it also imposed extensive mitigation conditions requiring that Mingo Logan: create wetlands, enhance thousands of feet of existing streams, plant tens of thousands of native trees and shrubs, and engage in long-term monitoring to ensure environmental mitigation.

The Corps’ review of the Spruce No. 1 project’s permit application lasted seven years, generated tens of thousands of pages of administrative record, and cost Mingo Logan millions of dollars. Prior to the issuance of the Corps’ permit, the EPA lodged no objections, nor did it seek to exercise its statutory authority to “elevate” a challenge to the Corps’ permit. There is no question but that Mingo Logan complied with the Corps’ permit.

Nonetheless, on January 13, 2011, the EPA, asserting authority under Section 404(c), revoked the Corps’ permit.  Meanwhile on April 2, 2010, Mingo Logan, anticipating the EPA’s action given a Federal Register notice, sued challenging the EPA’s authority to void the permit.  At that time, the EPA acknowledged it had never used Section 404(c) to review, let alone revoke, and already-issued permit in the 38 year history of the CWA.

In February, Mingo Logan amended its complaint and last week federal lawyers filed their answer and documents regarding EPA’s decision; therefore, the battle is joined.  At stake is no less than the question of the continuing validity of the rule of law