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Webb v. Gorsuch

ELR Citation: 13 ELR 20246
Nos. No. 82-1586, 699 F.2d 157/19 ERC 1398/(4th Cir., 01/20/1983)

The court dismisses a challenge to five national pollutant discharge elimination system (NPDES) permits for coal mine drainage issued by the Environmental Protection Agency (EPA). The court holds that EPA's decision that the regulated drainage from the mines would have no significant environmental impact and that an environmental impact statement therefore was unnecessary was not arbitrary and capricious. The court rejects petitioner's challenge that EPA failed to document possible techniques for controlling post-mining discharges. The evidence before the Agency could support a conclusion of no significant impact after closure. Alternately, EPA could rely on the enforcement of the Surface Mining Control and Reclamation Act to control postclosure impacts.

Weighing petitioner's other challenges, the court finds that EPA properly considered the cumulative impact of the five mines and did not need at this stage to consider the possibility of other mines opening. Also, since the Agency found no significant impact, it had no duty to consider less damaging mining methods. Although the permits did not require biological monitoring, the court holds that requiring such monitoring is discretionary. The court also holds that EPA did not invalidate the permits by receiving data after the close of the comment period and failing to hold a public hearing when none was timely requested.

Counsel for Petitioner
John McFerrin
Appalachian Research & Defense Fund, Inc.
1116B Kanawha Blvd., Charleston WV 25301
(304) 344-9687

Counsel for Respondents
Gregory R. Gorrell, W. Henry Jernigan, Mark C. Russell
Jackson, Kelly, Holt & O'Farrell
1500 One Valley Sq., Charleston WV 25301
(304) 347-7500

Jose R. Allen, Joseph Freedman, David T. Buente Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Bruce Diamond
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Joined by Chapman and Butzner, JJ.