Appeals court refuses to veto Corps permit for Alpha coal mine

The U.S. Fourth Circuit Court of Appeals on May 15 refused to block a permit that had been issued by the U.S. Army Corps of Engineers to the Highland Mining unit of Alpha Natural Resources (NYSE: ANR) for the Reylas strip mine.

In connection with a proposed surface coal mine adjacent to Reylas Fork (a stream) in Logan County, W.Va., the state Department of Environmental Protection issued a mine permit for this project to Highland Mining. The DEP also issued a water quality certification under Section 401 of the Clean Water Act (CWA), as well as a National Pollutant Discharge Elimination System (NPDES) permit under CWA Section 402. The Corps of Engineers also issued the CWA Section 404 permit for this mine.

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, including the Ohio Valley Environmental Coalition, then filed this suit against the Corps. They contended that the Corps “materially misapprehended” the baseline conditions in the relevant watershed, thus corrupting its analysis of the cumulative impact that the mine would have on the streams in the watershed. They also contended that the Corps acted arbitrarily and capriciously in determining that the valley fill would not have a significant cumulative impact on the water quality in the relevant watershed.

The U.S. District Court for the Southern District of West Virginia evaluated the data considered by the Corps, the Corps’ analysis, and the Corps’ conclusions and found in 2012 that the Corps did not misapprehend the baseline conditions in the relevant watershed. It also found that the Corps analyzed a “wide array of evidence about water quality” to reach a reasoned decision that the individual and cumulative environmental impacts of the Corps’ permit would not rise to the level of significance required to trigger the need for an environmental impact statement.

A three-judge panel at the Fourth Circuit on May 15 affirmed that lower court decision. Among other things, the panel wrote: “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 baseline conditions.”

The U.S. Mine Safety and Health Administration database shows the Reylas strip mine went into production in the second quarter of 2012 and produced 570,769 tons during the rest of that year, followed by 185,431 tons in the first quarter of this year. Alpha inherited this legal dispute with its June 2011 buy of Massey Energy, which had owned Highland Mining.

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.