The Register-Herald, Beckley, West Virginia

April 26, 2013

Group says fear of EPA power use unfounded

Sierra Club notes agency used veto retroactively 3 times since 1972

By Mannix Porterfield
Register-Herald Reporter

— An environmental group says fears advanced by an industry leader and members of West Virginia’s delegation in Congress that this week’s ruling on the Spruce No. 1 mine will trigger more retroactive permit cancellations are unfounded.

In its edict, the federal appeals court held that the Environmental Protection Agency acted properly in yanking a permit for the St. Louis-based Arch Coal in Logan County after it had been issued.

Almost immediately, Rep. Nick Rahall, D-W.Va., and Bill Raney, president of the West Virginia Coal Association, suggested a domino effect would result, with the EPA revisiting other approved permits and pulling them on grounds of safeguarding sources of water.

Yet, Ed Hopkins, representing the Sierra Club in the nation’s capital, said historically the EPA’s use of the ability to cancel permits has been extremely limited.

“The EPA has used its veto authority over (Army) Corps-issued 404 permits sparingly — just 13 times since 1972 under both Republican and Democratic administrations,” Hopkins told The Register-Herald.

“On only three occasions, including Spruce, did it do so retroactively. It’s entirely speculative and contrary to 40 years of experience to suggest that the EPA is suddenly going to start using this authority indiscriminately.”

Rahall denounced the court decision and warned that it would “open the floodgates” to similar decisions, disrupting coal production across the industry.

Agreeing with this assessment, Raney said the industry has been coming to terms with environmental authorities in West Virginia, and now the court’s ruling would hurt progress in getting the permitting process improved so that there is a sense of predictability.

What’s more, Rahall vowed to resurrect an old bill known as the Clean Water Cooperative Federalism Act to bar EPA from using “the guise of clean water as a means to disrupt coal mining.”

Earlier, a lower federal court had ruled that the EPA had overstepped its authority with regard to the mountaintop mining permit originally issued for Spruce No. 1.

Hopkins said the EPA doesn’t have carte blanche to veto coal permits, however.

In fact, the Sierra Club spokesman said, it can only do so when it ascertains that the release of materials would cause  “an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife or recreational areas.”

“EPA exhaustively documented the effects that the Spruce mine would have had, and we’re confident that its analysis will withstand judicial scrutiny,” Hopkins added.

— E-mail: