OHIO VALLEY ENVIRONMENTAL COALITION et. al. v. ARACOMA COAL COMPANY et. al.

Last month, a three-judge panel of the Fourth U.S. Circuit Court of Appeals overturned a lower court ruling restricting mountaintop removal coal mining. The Ohio Valley Environmental Coalition, the Coal River Mountain (together referred to in the case as OVEC) sued the Army Corps of Engineers over its issuance of valley fill permits. The permits allowed four separate mining operations to deposit waste into West Virginia streams. The District Court for the Southern District of West Virginia rescinded the permits for violating the Clean Water Act and enjoined all activity under the permits.

In a separate order, the District Court ruled that the Corps lacked authority to issue valley fill permits because the stream segments linking the permitted fills to treatment ponds were waters of the United States. The Fourth Circuit reversed and vacated the order rescinding the permits and the injunction.

Mountain top removal coal mining began in Appalachia in the 1970s as a cheaper, less labor intensive and higher yielding version of conventional strip-mining. The practice has several steps. First the mountaintop forests are clear-cut and the topsoil is removed. Then, explosives are used to blast away from 800 to 1000 feet of mountaintop. Waste dirt and rock called “spoil” is hauled and dumped into nearby valleys. Then, a machine called a dragline digs into the rock and exposes the coal and other machines are used to scoop out the coal.

At issue was the dumping of the spoil into nearby valleys. OVEC claimed the Corps failed to properly study the impact of buried streams and the stream segments and sediment ponds that were used to stabilize the valley fill. Specifically, in its complaint, OVEC claimed that the Corps failed to prepare the Environmental Impact Statements required under the National Environmental Policy Act or NEPA before issuing the permits. OVEC also claimed that the Corps failed to determine the adverse individual and cumulative impacts to the affected aquatic ecosystems in accordance with the Clean Water Act. The Corps claimed that it had the authority to determine the scope of NEPA, and further, that it could treat affected streams and sediment ponds as part of a unitary waste treatment system excepted from separate Clean Water Act permitting requirements.

The Fourth Circuit panel agreed with the Corps. First, the panel ruled that since the Corps was interpreting its own rules, its interpretation had to be given deference unless it was arbitrary or capricious. Then, it agreed with the Corps that the stream segments and sediment ponds were not waters of the United States, but unitary waste treatment systems over which it had authority.

The panel agreed with the Corps’ interpretation of the scope of its NEPA requirements pointing out that NEPA requires federal agencies prepare an Environmental Impact Statement for major federal actions. It did not believe that the waste treatment system alone could turn the entire mining project, otherwise regulated by state law, into a federal project. As for its Clean Water Act duties, the panel ruled that the Corps’ jurisdiction under the clean water act was limited so it did not have responsibility for the environmental consequences of the larger project and therefore was not required to make the impact determinations sought by OVEC.