EPA Proposes New Rule Limiting Its Oversight

By John McFerrin

The West Virginia Highlands Conservancy has joined with three hundred other organizations in opposing a proposal by the United States Environmental Protection Agency to reduce its oversight of the issuance of “dredge and fill” permits.

Although the rule would apply to all EPA decisions, in West Virginia it would have the greatest impact in how strip mining is regulated.

Among the approvals necessary for a surface mine is a permit from the Corps of Engineers for what is known as a “dredge and fill” permit, authorized by Section 404 of the federal Clean Water Act.

Authorization by the Corps of Engineers is not, however, the end of the story. Under Section 404 of the Clean Water Act, the Environmental Protection Agency has the authority to review permits issued by the Corps of Engineers and refuse to approve the activity where the environmental impacts are truly unacceptable.

This review of permits only rarely has any impact upon the whether the permit is issued.  In more than two million Section 404 actions in the forty six years of the Clean Water Act’s existence, the EPA review has resulted in the project being stopped only thirteen times.  Each of those that was challenged in court was upheld.

Now the EPA wants to restrict this oversight so as to limit even more the review by the EPA of permits issued by the Corps of Engineers.

Why does this sound familiar?

If this sounds familiar, it is because the regulation that EPA has proposed changing was involved in the controversy over the Spruce No. 1 mine in Mingo County that raged a few years ago.

In that case, the United States Army Corps of Engineers had issued a “dredge and fill” permit that would allow for filling of streams with a valley fill, part of a mountaintop removal operation.

After the Corps of Engineers approved the permit, the Environmental Protection Agency used its authority under Section 404 and refused to approve it.  Such a move was not totally unexpected since the EPA had expressed reservations while the Corps of Engineers was reviewing the application.

In refusing to approve the Spruce No. 1 Mine, EPA explained its decision. “The proposed Spruce No. 1 Mine would use destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and clean water on which they depend,” said EPA Assistant Administrator for Water Peter S. Silva.  “Coal and coal mining are part of our nation’s energy future and EPA has worked with companies to design mining operations that adequately protect our nation’s waters. We have a responsibility under the law to protect water quality and safeguard the people who rely on clean water.”

The Environmental Protection Agency did not take this action precipitously.  Throughout the history of the Spruce No. 1 Surface Mine Corps of Engineers permit, EPA had raised concerns regarding adverse impacts to the environment.  It had never said that it considered the mine to be environmentally acceptable.

There were appeals of EPA’s action, including a petition to the United States Supreme Court. When the Court of Appeals upheld EPA’s action and the Supreme Court refused to review it that was the end.

If you want a longer version, see stories in the April, 2014, issue of The Highlands Voice (https://www.wvhighlands.org/Voice%20PDFs/VoiceApr14.pdf) and the August, 2014, issue.  (https://www.wvhighlands.org/Voice%20PDFs/VoiceAug14.pdf.)

What’s happening now

The Environmental Protection Agency has proposed changing its rules in a way that limits the times when the EPA may review an action by the Corps of Engineers.  The proposed rule change would also prevent any regional EPA office from refusing to approve a permit; refusals would have to be approved by headquarters.

Had the proposed rule been in effect when the Spruce No. 1 mine was being considered EPA could not have stepped in and prevented the destruction to waters and communities.

In opposing the rule change, the groups contend a couple of things.  First, the present system is working.  In over two million cases, only thirteen have been stopped.  Whenever any of these disapprovals was challenged, the courts upheld them.

Second, the proposed rule change is contrary to the Clean Water Act.  The Act says that that EPA may disapprove a project “whenever” the Administrator determines that the discharge of dredged material would cause an unacceptable adverse impact on “municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” A regulation cannot limit the EPA’s authority to certain times when the statute itself says it can exercise that authority “whenever.”

For a Better Understanding

At the time the Spruce No. 1 mine was being considered it was, to say the least, controversial.  It was routinely cited as Exhibit 1 in the War on Coal, a prime example of the arbitrary and job killing EPA, etc.  Cindy Rank wrote an excellent explanation of the EPA’s refusal to approve the permit; it first appeared in the February, 2011. edition of The Highlands Voice.  The controversy went on for years.  When it arose again in 2012, The Highlands Voice reprinted the article in its April, 2012, issue.

If you really want to understand this issue, read that article.  It is available on the website, www.wvhighlands.org.