Supreme Court asked to weigh in on EPA's power to veto wetlands fill permits

A coal mining company fighting a decision by the U.S. Environmental Protection Agency to effectively veto a permit allowing disposal of mining waste in the streams of Appalachia has asked the Supreme Court to review the case.

The petition for certiorari in Mingo Logan Coal Co. v. United States Environmental Protection Agency was filed Nov. 13.

"Granting EPA this unprecedented power will chill private investment in critical sectors of the economy, where some $220 billion each year is contingent upon section 404 permits," the petition argues.

The issue is of high importance to advocates working to prevent mountaintop removal mining.

Scientific studies show that the practice, which involves extensive deforestation in a region that contains a high degree of terrestrial biodiversity, also causes damage to aquatic ecosystems that is practically irreparable.

Human health impacts, including increased risk of cancer and heart, lung, and kidney disease, have been documented in areas where mountaintop removal mining occurs. A relatively higher frequency of birth defects in areas impacted by the practice has also been confirmed.

In 2007 the U.S. Army Corps of Engineers issued Mingo a permit to fill waterways with overburden from its Spruce Mine No. 1 in Logan County, W. Va.

In 2011 EPA demanded changes to the permit that were extensive enough to amount to an outright rejection of it.

The U.S. Court of Appeals for the District of Columbia Circuit, in an opinion written by Judge Karen L. Henderson - an appointee of former President George H.W. Bush - unanimously upheld EPA's action. The other two judges that signed on to the panel's opinion were Thomas B. Griffith and Brett Kavanagh, both appointed by George W. Bush.

The focus of the legal dispute is section 404(c) of the Clean Water Act. That provision of the CWA appears to give EPA authority to revoke a permit to fill a stream with mining debris (or any wetland with any other sort of fill material), even if the polluting activity has already commenced:

The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.

Referring to this section of the CWA, upon which EPA relied in forcing changes to the Mingo permit, the D.C. Circuit wrote:

Section 404 imposes no temporal limit on the Administrator's authority to withdraw the Corps' specification but instead expressly empowers him to prohibit, restrict, or withdraw the specification 'whenever' he makes a determination that the statutory 'unacceptable adverse effect' will result. . . [T]he Congress made plain its intent to grant the the Administrator authority to  prohibit/deny/restrict/withdraw a specification at any time.

Mingo Logan Coal Co. is represented by former  U.S. solicitor general Paul D. Clement in its effort to obtain Supreme Court review of the D.C. Circuit decision.

Federal court orders EPA to regulate coal ash

A federal court has held that the U.S. Environmental Protection Agency must regulate the disposal of the toxic byproduct of coal-fired power plants into slurry ponds.

The decision comes in a case that turns on the application of the nation's principal hazardous waste law, the Resource Conservation and Recovery Act.

In June 2010 EPA proposed a regulation that would tighten the current weak limits applicable to handling of coal conversion residues. However, the agency has declined to finalize it. 

The aim of the lawsuit is to force EPA to do so.

Coal combustion residues contain a variety of toxic metals, including arsenic, cadmium, lead, mercury, and selenium. EPA has identified at least 36 other heavy metals and other substances in CCRs.  

Discharge of CCRs by coal-fired power plants means that such facilities are the source of more than half of all the toxic pollutants discharged into the nation's surface waters by permitted industrial facilities.

There are hundreds of CCR sites in the United States. According to an EPA web page, 45 of them are considered to pose a "high hazard."

Judge Reggie B. Walton's Sept. 30 memorandum order does not explain his reasoning beyond mention that the environmental group plaintiffs prevailed on their second cause of action listed in a complaint.

The litigation in which the order was issued does not relate to CCR discharges directly into surface waters, either as a result of leaking earthen dams or otherwise. That issue is the subject of a proposed rule announced by EPA last April. The agency faces a May 2014 deadline to finalize that regulation.

The Republican-dominated U.S. House of Representatives approved in July a bill that would strip EPA of any authority to regulate CCR disposal.

Coal ash pond failures in the past have proven to be highly destructive of the environment. A 1976 incident on Virginia's Clinch River contaminated 90 miles of the watershed, killing several hundred thousand fish, while another in Dec. 2008 in eastern Tennessee released more than billion gallons of coal ash slurry into the Clinch and Emory rivers.

Environmental groups seek intervention in case challenging mountaintop mining rules

A group of environmental organizations based in Appalachia has asked a federal judge to permit them to intervene in a lawsuit that challenges new Environmental Protection Agency regulations aimed at strengthening oversight of mountaintop removal mining.

Mountaintop removal mining involves the use of explosives to remove huge quantities of rock that bury coal seams. The procedure results in the literal destruction of mountains and the filling of streams and river valleys with rock, sediment, and toxic chemicals.

The Obama administration, in a change from the approach of its predecessor, has given EPA a veto power over so-called section 404 permits issued by the U.S. Army Corps of Engineers and strengthen cooperation between the two agencies and the Department of Interior.

Section 404 refers to the provision of the federal Clean Water Act that established protection of wetlands from filling. Rivers and streams are included within the coverage of that statutory section.

The administration of former President George W. Bush, in a decision made eight days before his presidency ended, issued a regulation that gave the coal industry wide latitude to blast off the tops of mountains and fill Appalachian streams and hollows with the resulting debris.

The new rules have slowed down permit decisions and, in some cases, caused some permit applications to be denied. They have particularly impacted planned mining operations that would result in "valley fills," which is a nickname for operations that result in the deposit of debris in the watersheds of the region's rivers.

The mining industry opposes the new regulations and, in July, filed a lawsuit attacking them in U.S. District Court in Washington, D.C.

The lawsuit claims that the new regulations will effectively ban mountaintop removal mining in the major coal states of the east, including Kentucky and West Virginia, and that EPA did not follow the procedures established by federal statute when it imposed the new regulations.

The environmental advocacy organizations, which include the Sierra Club and six local organizations, argue in their motion that a ruling in favor of the mining industry would cause serious harm to their members and the environment because the government might them grant permits of "dubious legality."

Two other lawsuits contesting EPA's new mountaintop mining regulations have also been filed. One was launched by the state of West Virginia earlier this month, while the second is being pursued by a group of Kentucky coal companies.

Commentary: Washington Post article should encourage re-thinking of ways to prevent nutrient growth in nation's waters

The Washington Post has published an insightful article discussing the huge increase in water pollution caused by livestock and poultry manure over the last few decades.

Yes, manure. About 2.7 trillion pounds of dung is generated by America's farm animals every year. That's about ten times the total amount of fecal material generated by all the humans in the country during a year.

The concentration of farming into gigantic, centralized operations has led to production of far more livestock and chicken dung than can easily or, in some cases, economically be used to fertilize crops. That waste is stored in piles or lagoons, from which it leaches into rivers and streams. According to a 2001 report from the U.S. Department of Agriculture that surplus accounts for 60 percent of all the nitrogen and 70 percent of all the phosphorus stored in the country's agricultural manure.

That nitrogen and phosphorus causes algal blooms and eutrophication in lakes and streams and is largely responsible for the creation of "dead" zones in the Gulf of Mexico.

Despite changes to it in 2002 and 2005 intended to address the problem of stored animal waste, the Clean Water Act is not currently a reliable tool for preventing the toxic pollution that is often caused by these byproducts of modern large-scale agriculture.

It is fine, as far as it goes, to require those who operate "combined feeding operations" to obtain a National Pollution Discharge Elimination System permit under the Clean Water Act. The problem is that mandate is not enough to stop the continued concentration of livestock into living spaces that are too small. The solution must involve giving farmers and agriculture companies an incentive to "spread the animals out." With less accumulation of manure in few places it will be more realistic to expect that the water pollution impacts of animal waste can be effectively addressed.

Of course, agricultural manure production on an industrial scale does not only affect water quality. It also contributes significantly to air pollution and global warming, as stored waste emits a variety of gases. They include methane, hydrogen sulfide, ammonia and, of course, carbon dioxide.

Therefore, this is an issue that must also be addressed in any effective greenhouse gas reduction strategy.

The public health dictates more attention to the problem, too. Livestock and poultry waste often contains zoonotic pathogens that are dangerous to humans, as well as pharmaceutical compounds such as hormones and antibiotics.

Unfortunately, there does not appear to be much focus on this problem in Congress. And EPA has not been enthusiastic even about making sure the public is aware of it. In 2008 the agency exempted animal waste air pollution discharges from reporting obligations under two federal environmental laws.

Perhaps, since "change" is a theme that apparently continues to resonate with the American public, it's time for leaders in Washington, D.C. to think hard about how to counteract this growing and serious environmental and public health threat.

Supreme Court Requests Additional Briefs in Alaska Clean Water Act Case

The Supreme Court wants more information before deciding an Alaska case posing the question whether mine tailings may be lawfully dumped in a water body.

The Court issued an order Monday asking for supplemental briefs despite having heard argument in Couer Alaska, Inc. v. Southeast Alaska Conservation Council, Inc. on January 12.

The issue in the case is whether a Bush administration regulation authorizing disposal of mine tailings in "waters of the United States" violates the Clean Water Act, which would require the polluter to get a permit if the material is deemed to be a "pollutant," subject to the requirements of the National Pollutant Discharge Elimination System, or "fill" material subject to the wetlands permitting provision of the law.

The particular dispute involves a proposed gold mine north of Juneau. The Army Corps of Engineers granted permission to the mine operator to dump waste materials in Lower Slate Lake. The federal district court in Alaska upheld that decision, but the U.S. Court of Appeals for the Ninth Circuit reversed.