Alpha scores a rare win in court case on mine valley fills

In general, miles of West Virginia streams are being buried under valley fills, but in particular the U.S. Army Corps of Engineers did not act in an “arbitrary” and “capricious” manner when it issued a permit for the Reylas surface mine of Alpha Natural Resources (NYSE: ANR).

Judge Robert Chambers, sitting in the U.S. District Court for the Southern District of West Virginia, has often ruled against the coal industry in Clean Water Act lawsuits dating back over the last several years. But an Aug. 10 decision from Chambers went for the coal industry.

The U.S. Environmental Protection Agency and the West Virginia Department of Environmental Protection (WVDEP) have been at “loggerheads” in evaluating the stream impacts of mining valley fills and taking action to strike the balance between the state’s economic interests in mining and its obligation to protect West Virginia’s environment, Chambers noted.

The contested U.S. Army Corps of Engineers decision to issue a Clean Water Act Section 404 permit to Highland Mining for a valley fill and sediment pond in conjunction with the Reylas surface mine was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, Chambers wrote. So he granted a Corps/federal government motion for summary judgment. Intervenor-defendant Highland Mining, which Alpha got in a June 2011 buy of Massey Energy, also won its motion for summary judgment. The plaintiffs’ motion for summary judgment was denied.

Plaintiffs, including the Ohio Valley Environmental Coalition, had challenged in March 2011 a decision by the Corps to issue an individual Section 404 permit to Highland Mining. In April 2011, this court granted the Corps’ motion to remand the permit to the agency for reconsideration. In September 2011, the Corps reinstated the permit, and this litigation resumed. As a result of actions by the Corps during the remand, plaintiffs withdrew counts two and three of their second amended complaint. Only counts one and four remain for resolution by the court.

The court granted partial summary judgment for the Corps in a short order on May 1. The remainder of the cross-motions were held in abeyance in order to conduct an evidentiary hearing.

The WVDEP database shows that the mine permit for Reylas was first issued in 2008 at 635 acres in size, since reduced to 627 acres. The mine works the Stockton, Clarion and 5 Block seams and associated seam splits. As of a July 12 site inspection, the WVDEP shows the mine as “active, moving coal,” with only 9.74 acres of the permit area disturbed so far.

Valley fills are a controvesial feature of surface mining

Excess overburden (rock and soil) from strip mine sites is disposed of in valley fills, often burying ephemeral, intermittent, and perennial streams near the mountaintop. The valley fills themselves are constructed with diversions and underdrain systems to control erosion and runoff, and to ensure stability of the fill. Ordinarily, a sediment pond is constructed below a valley fill to collect the flow of water as it comes off of a valley fill. These fill structures are covered by a Section 404 permit. The water that is discharged from the sediment pond requires a Section 402 NPDES permit from the WVDEP.

Highland submitted an application for a Section 404 permit in September 2007, seeking authorization to discharge fill material in connection with a valley fill, sediment pond, and mine-through activities in Reylas Fork of Bandmill Hollow creek, a tributary of the Guyandotte River, in Logan County. In March 2009, the Corps had thoroughly evaluated the Reylas proposal and expected to issue the permit without further delay. At this point the EPA sent a letter to the Corps objecting to the issuance of the Section 404 permit. Specifically, the EPA stated that the proposed permit “is likely to cause or contribute to an excursion from the State’s water quality standards downstream resulting in an impairment of the aquatic life use, and 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.”

In a subsequent letter, the EPA submitted additional comments and expanded on its concerns over the alternatives analysis and mitigation requirements in the proposed permit, concluding that the permit could be issued with the addition of “appropriate permit conditions.” After a period of interagency dialogue, the Corps added some, but not all, of the additional permit conditions sought by the EPA. As a result of these comments, the proposed permit was modified to eliminate about 400 feet of impacts to Reylas Fork and to reduce the amount of overburden to be place in the valley fill.

In February 2011, the Corps notified the EPA of its intention to proffer the permit. The Corps then delayed that decision by one week at the request of the EPA. During this time, the Corps, in consultation with the EPA, modified some of the special conditions of the permit for clarification. In March 2011, the Corps proffered Highland’s permit.

The plaintiff environmental groups immediately challenged the permit in the Chambers court. In April 2011, the court stayed these proceedings and granted the Corps’ unopposed motion to remand the permit to the agency for further consideration. In September 2011, the Corps reinstated the permit. After the reinstatement, plaintiffs sought leave to file a supplemental complaint, which the court denied, finding plaintiffs’ new claims to be “futile” because they were based on scientific studies first published after Highland’s permit had issued.

The parties then filed cross-motions for summary judgment, on which the court heard argument on April 26. At that hearing, it was agreed that the plaintiffs’ remaining claims could be classified as: challenges to the sufficiency of the Compensatory Mitigation Plan; and challenges to the Corps’ cumulative impact assessment under the National Environmental Policy Act (NEPA). The court found the former claims to be controlled by a prior valley fill case decided by a federal appeals court and granted summary judgment in favor of the Corps on those claims. The Court held the motions for summary judgment in abeyance with regard to the latter issues and held a four day evidentiary hearing from May 9–11. At the conclusion of the hearing, the court requested additional briefing on the conclusive effect of the WVDEP Section 401 certification.

Plaintiffs argued that the temporal loss formula adopted by the Corps is arbitrary and capricious because there is no explanation for the Corps’ determination to measure temporal loss at 3% per year until the time that mitigation begins. In this case, that was estimated to be five years, and the temporal loss of 3% per year for five years resulted in a 15% increase in compensatory mitigation to account for temporal loss, the judge noted. Plaintiffs pointed out that there is no rational basis to end this calculation at the time that mitigation begins since temporal loss continues up until the time that mitigation is complete. In fact, since this permit was issued, the Corps has changed this method and, for new permits, the Corps calculates temporal loss at 3% per year until mitigation is mature, the judge added. While this change in practice casts doubt on the calculation used in the Reylas permit, it does not lead the court to conclude that the original methodology was arbitrary and capricious, Judge Chambers wrote.

Judge: coal mining is harmful, but that’s not relevant here

At trial, plaintiffs presented unrefuted evidence of a correlation between mining, elevated conductivity and the loss of sensitive benthic macroinvertebrates in streams below valley fills. “The testimony of Plaintiffs experts was compelling, and the efforts by the Corps and Highland to discredit them were in vain,” the judge wrote. “The Court is thoroughly convinced that large scale surface mining is strongly correlated with elevated levels of conductivity and the loss of sensitive macroinvertebrates downstream of valley fills. This conclusion, however, is not enough to vacate the Corps’ decision on the Reylas permit.”

The central issue in any NEPA claim is whether the administrative agency has taken the requisite “hard look” at the environmental impacts of its actions, Chambers noted. Here, plaintiffs and the EPA brought conductivity and the cumulative impacts of mountaintop removal mining to the attention of the Corps. Faced with these concerns, the Corps solicited responses from Highland, held meetings and calls with interested parties, and responded to these environmental concerns.

The administrative record documents the extensive interaction among the Corps, the EPA, the WVDEP and Highland to resolve the EPA’s concerns. Though Highland and the WVDEP disputed the EPA’s position on conductivity and cumulative water quality impacts of valley fills, the Corps focused on site-specific factors which provide at least a rational basis for its decision. While not adopting all of the EPA’s suggestions for addressing conductivity and water quality cumulative impacts, the Corps did take the legally-required “hard look” at the concerns raised by the EPA, Chambers ruled.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.