EPA Exceeds Its Authority By Revoking Mountaintop Removal Permit

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By: Raabia Wazir, Staff Member

Environmentalist cheered in January 2011 when the U.S. Environmental Protection Agency (EPA) revoked one of the largest mountaintop removal permits ever authorized in Appalachia on grounds that the mine would result in unacceptable damage to streams and wildlife and violate the Clean Water Act.[1] The US Army Corps of Engineers originally issued the §404 permit for the Spruce No. 1 mine project in Logan County, W.V., in January 2007 and the Mingo Logan Coal Company (a subsidiary of Arch Coal, Inc.) began construction shortly thereafter.[2] The permit covered 2,278 acres and allowed for the burial of approximately 7.48 miles of streams beneath 110 million cubic yards of excess spoil.[3]

The revocation of the permit by the EPA marked the first crackdown by the Obama administration to limit mountaintop removal mining by retroactively vetoing old permits. It is also only the second time that the agency has canceled a water permit for a project of any kind after it was issued since the Clean Water Act was passed by Congress in 1972.[4] The decision led to an uproar from the industry and its supporters, many expressing fear that all mine sites were now vulnerable to losing their permits.[5]

In March 2012, the Federal District Court of District of Columbia ruled that the agency exceeded its authority under the Clean Water Act by revoking the permit. Judge Amy Bergman Jackson wrote in her opinion, “The EPA resorts to magical thinking. It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and

consideration. Poof!”[6] She further argued that permit revocation is unreasonable because it “[sows] a lack of certainty into a system that was expressly intended to provide finality." The Judge continued, "Every construction project involving waterways could be subject to an open-ended risk of cancellation.”[7]

The agency has yet to announce whether they plan to appeal the ruling.

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[1] Kate Sheppard, EPA Halts "Destructive and Unsustainable" Mining Operation, Blue Marble, Jan. 13, 2011, http://motherjones.com/blue-marble/2011/01/epa-rejects-spruce-no-1-permit.

[2] Spruce No. 1 Mine , U.S. Environmental Protection Agency. (April 2, 2012, 5:00 PM), http://www.epa.gov/region03/mtntop/spruce1.html

[3] Final Determination of the U.S. Environmental Protection Agency Pursuant to § 404(c) of the Clean Water Act  Concerning the Spruce No. 1 Mine, Logan County, West Virginia (2011), available at: http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/upload/Spruce_No-_1_Mine_Final_Determination_011311_signed.pdf

[4] Stephen Power & Kris Maher, EPA Blasted as It Revokes Mine's Permit, Wall Street Journal, Jan. 14, 2011, available at: http://online.wsj.com/article/SB10001424052748703583404576079792048919286.html.

[5] Erik Eckholm, Project’s Fate May Predict the Future of Mining, N.Y. Times, July 14, 2010, available at:  http://www.nytimes.com/2010/07/15/us/15mining.html.

[6] Mingo Logan Coal Co. Inc. v. U.S. E.P.A., No. 10–0541, 2012 WL 975880 (D.D.C. March 23, 2012), available at: http://wvgazette.com/static/coal%20tattoo/SpruceMineRuling.pdf

[7] Id.