The first brief, prepared by the NMA on behalf of its members and 19 state mining associations, exposed flaws in the science that underpinned the EPA’s rejection of the Mingo Logan Spruce permit, the agency’s evasion of important regulatory procedures required by the Clean Water Act and its failure to consider scientific analyses commissioned by the NMA. The analyses challenged the EPA’s assumptions as well as the agency’s own recommended criteria guidelines. “The EPA’s retroactive revocation of the Spruce permit rests in large part upon an ad hoc water quality standard the agency has never lawfully promulgated,” said the NMA, and then the agency recommend using incomplete or predetermined science to develop the standard. The brief asks the court to void the EPA’s permit veto in view of these failings.
A second brief, filed by an NMA-led coalition of a dozen independent industries, takes issue with the EPA’s expanded use of its veto authority. An economic analysis commissioned by the NMA and conducted by Dr. David Sunding, a professor in the Department of Agricultural and Resource Economics at the University of California at Berkeley, showed marketplace uncertainty created by the annulment of existing permits would have a significant economic impact by freezing investment beyond the coal industry and the region, impacting other industries that rely on permit viability to plan and conduct costly operations.
The EPA drew NMA’s rebuttal with two published reports that purport to assess the water quality and environmental effects of mountaintop mining on Appalachian streams. The reports, “The Effects of Mountaintop Mines and Valley Fills on Aquatic Ecosystems of the Central Appalachian Coalfields,” and “A Field-Based Aquatic-Life Benchmark for Conductivity in Central Appalachia,” allege permanent loss of headwater streams in the region and unacceptable selenium and conductivity levels from mountaintop mining, with associated downstream toxic effects on aquatic life.
The NMA objected to the EPA’s characterizations of the scientific review undertaken for these reports. Contrary to the agency, the reports were not “strongly endorsed” by the EPA’s Science Advisory Board, which actually expressed concerns with the findings and methodology the EPA used and suggested ways the EPA could improve them. Nor does the SAB constitute “an independent peer review” as the EPA claims; the agency not only selects panel members and defines their focus and scope of review, said NMA, but oversees completion of the final reports. The concerns raised in the NMA’s scientific critique of the draft reports, conducted by GEI Consultants, Inc. and Norwest Corp., were ignored in the EPA’s final documents.
