W.Va.'s Congressional delegation takes aim at EPA's permit process

WASHINGTON – West Virginia’s members of Congress are keeping their promises to file legislation in response to a recent court decision that allowed the Environmental Protection Agency to withdraw a permit that had already been issued to a mountaintop removal mine.

On April 25, Sens. Joe Manchin and Jay Rockefeller reintroduced the EPA Fair Play Act, which would prohibit the EPA from retroactively vetoing permits. They say the bill would protect energy production, economic growth and job creation.

Manchin promised the move in the wake of an April 23 decision by the U.S. District Court for the District of Columbia Circuit against Mingo Logan Coal Company. The bill was first introduced in 2011.

“For too long the EPA has overreached with its power at the cost of countless American jobs and critical investments,” Manchin said.

“As we continue to face a recovering economy, American businesses must have certainty in the marketplace. It is simply common sense to allow companies that already have been granted permits to finish the work they have started. We simply cannot afford to stifle energy production and good-paying jobs.”

Manchin said Mingo Logan was poised invest $250 million in its Spruce Mine No. 1 project, which would have created 200 jobs.

The Clean Water Act 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.

“But again, (the Clean Water Act’s) language is plain with regard to its enumerated ‘unacceptable adverse effects’: the Administrator retains authority to withdraw a specified disposal site ‘whenever’ he determines such effects will result from discharges at the sites,” Henderson wrote.

“And when he withdraws a disposal site specification, as he did here, the disposal site’s ‘terms and conditions specified’ in the permit… are in effect amended so that discharges at the previously specified disposal sites are no longer in ‘(c)ompliance with’ the permit – although the permit itself remains otherwise in effect to the extent it is usable.”

The D.C. Circuit’s ruling overrules a district judge’s decision.

Co-sponsors to the bill are: Lisa Murkowski, R-Ark.; Sen. John Hoeven, R-N.D.; Sen. Mary Landrieu, D-La.; Rob Portman, R-Ohio; and David Vitter, R-La.

Also in the Senate, Kentucky’s Mitch McConnell has announced a plan to introduce the Coal Jobs Protection Act, which targets the EPA’s coal-mining permit approval process.

U.S. Rep. Shelley Moore Capito, West Virginia’s representative from the Second District, will introduce a similar bill in the House.

“This EPA has turned the coal permitting process into an illegitimate, back-door means to shut down coal mines permanently, by sitting on permits indefinitely and removing any certainty from the regulatory process,” McConnell said.

The bill would put restrictions on the amount of time the EPA can consider permit applications without approving or denying them.

Also, U.S. Rep. David McKinley, West Virginia’s representative from the First District, said on Feb. 8 he introduced legislation similar to Manchin’s.

U.S. Rep. Nick Rahall, who represents West Virginia’s Third District, plans to reintroduce the Clean Water Cooperative Federalism Act.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.