Sides line up at June 1 hearing over EPA’s coal permit veto authority

A U.S. House subcommittee on June 1 heard testimony at a hearing on the extent of the U.S. Environmental Protection Agency’s power to veto Section 404 Clean Water Act permits that are issued by the U.S. Army Corps of Engineers with EPA oversight.

This has become a hot-button issue since EPA in January 2011 vetoed an issued Section 404 permit for Arch Coal’s (NYSE: ACI) long-controversial Spruce No. 1 strip mine in Logan County, W.Va. A judge at the U.S. District Court for the District of Columbia in March ruled that EPA overstepped its authority in cancelling that permit, with the EPA having recently taken that decision to the U.S. Court of Appeals for the District Columbia Circuit. The permit for the 2,278-acre strip mine is held by the Mingo Logan Coal unit of Arch Coal.

The June 1 hearing was in front of the Subcommittee on Energy and Mineral Resources of the House Natural Resources Committee. On the schedule to testify were EPA Administrator Lisa Jackson, U.S. Office of Surface Mining Director Joseph Pizarchik and Jo-Ellen Darcy of the Corps. Also scheduled to testify was West Virginia state Sen. Art Kirkendoll, Karen Harbert of the U.S. Chamber of Commerce, Ross Eisenberg of the National Association of Manufacturers (NAM) and Maria Gunnoe, described as an organizer in Boone County, W.Va.

Rep. Doc Hastings, R-Wash., the chair of the full committee, slammed the White House in his opening statement for not actually send anybody to the hearing. “This hearing was supposed to give Committee Members an opportunity to question Obama Administration officials about the ‘magical thinking’ and better understand their decision making process. Unfortunately, the Obama Administration officials that were invited to testify refused the invitation and refused to send anyone in their place. We’ve heard a lot about openness and transparency from President Obama, so it’s very disappointing to see high ranking officials, or any officials, from his Administration ignore the opportunity to keep the public informed.”

West Virginia senator slams EPA action and its impact on jobs

Kirkendoll, who represents Logan County, the site of the Spruce No. 1 mine, lit into EPA in his prepared testimony. “EPA’s revocation of a legal, valid permit three years after it was issued by the Corps of Engineers shatters the trust that must underlie the relationship between citizens, businesses and their government,” he wrote. “Not only has the EPA’s actions shattered that essential relationship between the people and their government, but in their politically motivated zeal to invalidate an existing, legal permit, the agency trampled on the relationship of the states to their federal government, destroying the very spirit of the Federal Clean Water Act so much so that a federal judge was inspired to characterize EPA’s actions as ‘magical thinking.’”

The West Virginia Legislature has twice adopted resolutions condemning EPA’s behavior with respect to the Spruce mine permit, Kirkendoll added. “Each year, more than 13 million tons of coal is mined in our county,” he said. “There are a bit more than 1,500 coal miners working in the county, and using the standard economic multiplier, that means the industry provides employment for about 5,000 Logan County residents. Consider that for a moment – 5,000 out of a total population of a little more than 35,000. To put that into a bit better perspective, most of those coal miners and service industry employees are married and are in their prime family years – so it is safe to say that those 5,000 people represent 5,000 families – about 20,000 people out of 35,000 – something like 70 percent.”

Kirkendoll said that federal Judge Amy Berman Jackson, who issued the March ruling that struck down the EPA veto, observed that EPA’s actions on the Spruce permit represent “stunning power” for an agency to assume when there is no mention of it in the authorizing statute. “The House has taken appropriate measures to restore balance and rationality to EPA and force them to respect the lines of federal and state responsibility with the passage of H.R. 2018, the Clean Water Cooperative Federalism Act,” he added. “This same body should immediately begin consideration of H.R. 457, which will forever prevent EPA from revoking an issued and operating permit.”

Local resident says EPA action was needed to protect the environment

Gunnoe, on the other hand, decried the environmental impacts of mines like Spruce No. 1 and applauded EPA. “The Spruce No. 1 permit is one of the first examples of steps that the EPA has taken to STOP irresponsible mining practices which were ignored during the Bush Administration,” she wrote in her prepared testimony. “People from all over Appalachia have lobbied the EPA for these protections for the past 15 years. During the Bush Administration the oversight of mountaintop removal permits was nonexistent. The Bush Administration sent word to W.Va. state Department of Environmental Protection Secretary Stephanie Timmermeyer to get these permits pushed through as quickly as possible. In George Bush’s words ‘We need this coal, our homeland security depends on it.’ The coal industry was allowed to do as they please during the 8 years of the Bush Administration. Then in 2009, in steps the Obama administration’s EPA trying to fix the problems that the Bush administration created and then ignored.”

Eisenberg said the situation for NAM is all about regulatory certainty and the lack of it that the Spruce No. 1 veto brought. “In order to drive our nation’s economic recovery, manufacturers need predictability from the regulatory process,” he explained. “They must understand the ‘rules of the road’ so they can make responsible, informed investment decisions. Lack of predictability is precisely the problem with the Spruce Mine case and is the main reason the NAM and so many other organizations found it necessary to enter the litigation against the EPA and in support of Mingo Logan.”

Arch Coal has had a contractor, Eagle Creek Mining LLC, working certain limited areas of the Spruce No. 1 site during the battle over the Section 404 permit. The West Virginia DEP website shows that as of an April 26 site inspection, 329 acres of the 2,278-acre permit area had been disturbed up to that point. The U.S. Mine Safety and Health Administration database shows that Eagle Creek Mining, controlled by John and Thomas Potter, produced 177,056 tons from this mine in the first quarter of this year and 819,831 tons in all of 2011.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.