By John O'Brien
A federal appeals court decision revoking parts of a Clean Water Act permit given in 2007 to the Mingo Logan Coal Company appears to have irked West Virginia's congressional delegation.
Four of the state's five members of Congress issued press releases on April 23 in the wake of a decision by the U.S. Court of Appeals for the District of Columbia Circuit that allows the Environmental Protection Agency to withdraw permission previously granted by the Army Corps of Engineer to use two streams as discharge sites.
The discharge sites are used for the Spruce Mine No. 1 mountaintop removal site. The decision to withdraw specific parts of a permit after it was issued was unprecedented in the history of the Clean Water Act.
Sen. Joe Manchin, a Democrat, called the decision an example of bureaucracy at its worst.
"One agency grants a permit, another agency takes it away and business suffers in the end," Manchin said. "The federal government should be an ally, not an adversary, in helping to strike a balance between protecting the environment and creating good American jobs."
Manchin added that he plans to reintroduce the EPA Fair Play Act in response. The bill was first introduced in 2011 and aims to amend the Clean Water Act to remove the authority of the EPA administrator to prohibit the specification of any defined area as a disposal site for discharges of materials into waters, or to restrict the use of any defined area for specification as a disposal site, once the Secretary of the Army has issued a permit for dredged or fill material.
West Virginia's other senator, Jay Rockefeller, did not issue a press release, but in 2010 he condemned the EPA's decision to veto the permit.
"I have said this before, and will say it again: it is wrong and unfair for the EPA to change the rules for a permit that is already active," Rockefeller said then.
"The Spruce Number 1 Mine has made good faith efforts to comply with all applicable laws and regulations, and I believe the EPA should honor their commitment in return. I will continue to push EPA officials until we can find a workable, long-term solution."
The permit was issued on Jan. 22, 2007, by the Army Corps of Engineers. It authorized Mingo Logan to discharge fill material from its Spruce No. 1 coal mine into nearby streams, including the Pigeonroost and Oldhouse branches and their tributaries.
Nearly three years later, the EPA published a final determination on the permit that withdrew those two streams as disposal sites.
Mingo Logan filed a lawsuit in U.S. District Court for the District of Columbia, and Judge Amy Berman Jackson sided with the company in March 2012.
The EPA appealed to the D.C. Circuit. Judge Karen L. Henderson wrote the court's opinion. She wrote the EPA administrator retains authority to withdraw a specified disposal site whenever he determines adverse effects will result from discharges at the site.
All three of West Virginia's members of the House of Representatives criticized the ruling.
David McKinley, a Republican representing the First District, said the EPA's decision sent a chilling effect through the American economy.
"If EPA can retroactively pull a permit at a coal mine, what's to stop them from doing so at any construction site or manufacturing plant?" he said.
"Today's ruling would grant EPA staggering authority to revoke clean water permits after they have already been issued, causing enormous uncertainty, not only in coal mining but all industry."
On Feb. 8, McKinley introduced a bill similar to Manchin's.
"This decision reinforces the need for Congress to step in," he said.
Second District Republican Shelley Moore Capito said the court's ruling highlights what Congress is up against in President Barack Obama's war on coal.
"The Environmental Protection Agency has continued to overstep its bounds in its efforts to implement the president's anti-energy policies," she said. "Not only will this ruling cost West Virginians hundreds of jobs, but it begs the question: Who is safe?"
Nick Rahall, a Democrat representing the Third District, said the decision opens the floodgates to disrupting coal mining in West Virginia and elsewhere.
"Today's ruling makes clear that Congressional action will be needed. I will soon be reintroducing the Clean Water Cooperative Federalism Act, legislation the House approved last year to prevent the EPA from using the guise of clean water as a means to disrupt coal mining as they have now done with respect to the Spruce Mine in Logan County."