EPA’s retroactive use of its veto authority to revoke previously issued, federally-approved U.S. Army Corps of Engineers’ operating permits for mining operations, jeopardizes all legally issued operating permits for all mining operations, including the ability of operators to rely on the integrity of such permits and the permit process. Furthermore, EPA plans to impose a new water quality standard for mines without scientific justification.
Since 1972, when the Clean Water Act (CWA) was enacted, EPA has never attempted to revoke an already- issued CWA section 404 permit. Furthermore, Section 404 of the CWA does not authorize EPA to veto a previously issued permit. If allowed to stand, this threatens all recipients of all federally-issued Clean Water Act permits, including 402 NPDES permits issued by EPA or delegated states and 404 permits. It could also impact state-issued 401 Water Quality Certifications. In January 2011 EPA vetoed a 3-year old permit, Arch Coal Company’s Spruce Mine #1 permit in Logan County, West Virginia.
As a further attempt to stop mountaintop coal mining, EPA has issued guidance on a new water quality standard for conductivity with limited scientific supporting data and is circumventing the rulemaking process, which allows for public notice and comment. The “guidance” recommends a range of 300 to 500 microsiemens per centimeter of conductivity, as an indicator of pollution. This level has been capriciously set and has no basis in sound science, and could be applied to any mining facility with a water discharge in the U.S., with no indication that this will improve water quality or the environment. Although industry, including NSSGA, successfully challenged this action in the D.C. District Court, EPA is appealing this decision.
- If EPA is successful, $220 billion in economic activity is at risk of being subject to an after-the-fact EPA veto.
- Businesses in compliance will no longer be able to rely on the security of a valid CWA permit.
- In setting a new water quality standard without any background data, EPA is imposing a costly new requirement with unknown value to the environment without allowing for public notice and comment.
- EPA should only use the veto authority within a set time frame allowed under the CWA and legal statutes of limitations.
Updated: September 2012