More questions for Spruce

The Vice President of the West Virginia Coal Association says this week’s ruling from the U.S. Court of Appeals for the District of Columbia on the Environmental Protection Agency’s retroactive veto of a Logan County surface mine project is far reaching.

“This is not about surface coal mining and it’s certainly not about mountaintop removal mining.  (Section) 404 permits in the coal industry are required for virtually everything we do,” Jason Bostic said on Wednesday’s MetroNews Talkline.

Outside of the coal industry, “I think any of those industrial activities are placed in peril, if you will, by this decision that gives EPA this unfettered authority to come in, at any time, to yank a permit that was validly issued by the Corps.”

The Tuesday ruling said the EPA did have the authority to pull the water permit for Arch Coal’s Spruce Number One surface mine project four years after the U.S. Army Corps of Engineers first approved it.

The decision reverses a lower court ruling that said the EPA overstepped its authority by pulling that permit.

“The Court finds nothing in the legislative history…that would show an intent by Congress to confer permit revocation authority on the Administrator of the EPA,” U.S. District Judge Amy Berman Jackson wrote in the earlier decision.

Acting EPA Administrator Bob Perciasepe was asked about the latest ruling, in the EPA’s favor, during a budget hearing Wednesday morning on Capitol Hill.  At that time, he said he had not fully reviewed what the U.S. District Court of Appeals had said.

Speaking generally, he said retroactive veto power is not used often.

“That authority that is in the Clean Water Act under Section 404, since 1972, has been used less than 20 times in the history of the law,” Perciasepe told members of the U.S. Senate Committee on Appropriations.

“It’s not something the EPA takes very frivolously through all the different administrations that have used it and that authority has been used in both Democratic and Republican administrations.”

But West Virginia leaders have been critical of the EPA’s move and Bostic says it’s creating a lot of uneasiness within the industry.  “It’s made it very difficult to justify making investments in West Virginia and Appalachian,” Bostic said.

The EPA revoked the permit for Spruce in January 2011 after determining that surface mining at the 2,300 site in Logan County would cause irreparable damage to the environment.

The project was originally proposed in 1998.

Arch Coal Spokesperson Kim Link said the following of Tuesday’s ruling: “We’re disappointed in the decision, which was related to the procedural aspects of the proceeding.  The case will now go back to the district court for a decision on the merits.”





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