Fill permit for Logan surface mine upheld

By Nathan Bass | Jun 3, 2013

RICHMOND, Va. - A unanimous three-judge panel has affirmed West Virginia federal court's decision that found the Corps of Engineers complied with both the Clean Water Act and NEPA in issuing a fill permit to Highland Mining for a surface mine in Logan County.

The May 15 decision was authored by Judge Paul V. Niemeyer. Chief Judge William B. Traxler Jr. and Judge J. Harvie Wilkinson III joined, with Wilkinson writing a separate concurring opinion.

“The mining operation proposed at the Reylas mine would involve removing mountaintop rock that covers the coal seams to be mined, placing the rock in the adjacent valley, extracting the coal, and replacing the rock on the mountaintop,” the opinion explained.

Because the volume of the rock swells on being broken up, not all of the rock would be needed to restore the mountaintop and the excess rock, or overburden, would be left in the valley as permanent fill. Ultimately, this disruption of the valley would impact the Dingess Run watershed into which the Reylas Fork, a stream that flows through the valley where the fill was proposed, indirectly flows.

Highland Mining filed an application for a fill permit with the U.S. Army Corps of Engineers and after notice was given of Highland Mining’s application for the permit, the Corps received comments from environmental groups expressing concerns about the impact of the Reylas mine.

The EPA also submitted concerns warning that “the direct and cumulative impacts from this and future mines will be persistent and permanent and cannot be sufficiently or effectively compensated through the proposed mitigation.”

Highland Mining, the EPA and the Corps consulted each other and agreed to modifications to the conditions of the permit which allayed the EPA concerns and led the EPA to give its approval for the application to move forward, according to the opinion.

Finally, the Corps issued a Combined Decision Document and CWA §404 permit, authorizing Highland Mining to place rock overburden into the adjacent valley of Reylas Fork as part of the mining process.

Importantly, the Corps issued the permit without an environmental impact statement, finding that the fill would not have a substantial cumulative impact on the water quality in the relevant watershed.

Four environmental groups - Ohio Valley Environmental Coalition, Inc., West Virginia Highlands Conservancy, Inc., Sierra Club, and Coal River Mountain Watch - commenced an action challenging the fill permit.

The Environmental Coalition alleged that the Corps has “materially misapprehended” the baseline conditions in the relevant watershed, corrupting its analysis and also contending that the Corps acted arbitrarily and capriciously in its determination that the valley fill would not have a significant cumulative impact on the water quality in the watershed.

The U.S. District Court for the Southern District of West Virginia found that the Corps had analyzed a “wide array of evidence about water quality” to reach a reasoned decision in its determination that the environmental impact of the permit would not rise to the level of significance required to trigger the need for an environmental impact statement and the court concluded that the Corps had not acted “arbitrarily or capriciously.”

The Environmental Coalition appealed to the Fourth Circuit Court of Appeals.

“The Environmental Coalition contends first that the Corps, in determining the baseline conditions of the relevant watershed, which was part of its analysis of the cumulative impact of the proposed mining activity, made ‘a material factual error’ and ‘misapprehended’ the baseline conditions,” Niemeyer wrote.

The coalition submitted evidence that the Corps had overstated the health of the impacted waterways which led to its conclusion that the streams would be able to assimilate the effects of the Reylas mine.

“These observations and assessments do not support the Environmental Coalition’s claim that the Corps ‘misapprehended’ conditions. The Corps’ conclusion that the Dingess Run watershed had good water quality was a contextual judgment made after considering all relevant data,” Niemeyer concluded.

“The Corps considered the relevant factors, evaluating both the impact site and the entire watershed. Only after this evaluation did the Corps reach its informed judgment as to the conditions.”

Niemeyer added, “For its second argument, the Environmental Coalition contends that the Corps’ finding of cumulative insignificance was 'arbitrary and capricious' because the Corps irrationally dismissed the strong correlation between surface coal mining activities and downstream biological impairment.

“[T]he Coalition challenges the rationality of the Corps’ predictive judgment that the valley fill from the Reylas mine will not have a cumulatively significant impact on the streams in the Dingess Run watershed.

“The Corps’ predictive judgment in this case was based on facts and recommendations, adduced during a lengthy consultation between the Corps, Highland Mining, the EPA, and the WVDEP, and we conclude that this process satisfies NEPA’s procedural requirement to take a ‘hard look.'

"[A]n agency takes a sufficient ‘hard look’ when it obtains opinions from its own experts, obtains opinions from experts outside the agency, gives careful scientific scrutiny and responds to all legitimate concerns that are raised.

“Because the Corps’ analysis satisfied NEPA’s procedural requirements, the Corps’ finding of cumulative insignificance is neither arbitrary nor capricious. Accordingly, we affirm the judgment of the district court.”

In his concurrence, Wilkinson expressed concerns regarding earlier EPA comments regarding the health of Dingess Run and assessments by other agencies listing Dingess Run as an impaired waterway, before ultimately concluding:

“The Corps has been tasked with regulating mineral extraction in West Virginia in a way that respects the extraordinary, but fragile, environmental and natural resources of that state. Here, the record demonstrates a frankness in the agency dialogue that resulted in a greater respect for NEPA’s basic aims," Wilkinson wrote.

"Given the corrective measures ultimately taken, I believe it would be counterproductive to leap upon the earlier EPA and Corps reservations as a reason to reverse. To do so would produce darkness in the process, not light.

“Of course, the judiciary is not a rubber stamp on agency action, and there are times when contrary evidence will either not support or will actively undercut an agency’s decision. But this is not one of those cases. I therefore concur in the majority’s opinion and in its decision to affirm.”

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