Earlier
this week the U.S. District Court of Appeals handed West Virginia and the
environment a victory when they ruled that the EPA could withdraw a previously
approved Clean Water Act permit for the Spruce Mine No. 1, a permit for the
largest such mine operation to be performed in West Virginia.
In
an unsurprising political move, West Virginia’s Democratic Senator Joe Manchin
reintroduced the EPA Fair Play Act, Senate Bill 272. The summary of the bill
reads thus:
EPA Fair Play Act - Amends the Federal Water Pollution Control
Act (commonly known as the Clean Water Act) to remove the authority of the
Administrator of the Environmental Protection Agency (EPA) to prohibit the
specification of any defined area as a disposal site for discharges of
materials into waters of the United States, or to restrict the use of any
defined area for specification as a disposal site, once the Secretary of the
Army has issued a permit for dredged or fill material.
To understand what is going on here, a little background on mountaintop
removal is needed. Under the Clean Water Act, the Army Corps of Engineers is
granted the authority to issue permits allowing for the discharge of pollutants
or the placement of dredge and fill material into our nation’s waterways.
Permits under section 404 of the Clean Water Act—intended to be used to allow
the use of fill or dredge for the construction of levees, bridges, or other
structures in or around water—are generally easier to get than 402 permits,
which control the discharge of pollutants into lakes and streams. A court
ruling that goes back over a decade established that the Corps can allow
mountaintop removal operations to fill in valleys and streams with their waste
material under 404 permits, as though these valleys and streams were somehow
construction sites instead of dumping grounds.
The
ruling this week stated that the Administrator of the EPA has the authority “to deny or restrict the use of any
defined area for specification (including the withdrawal of specification) as a
disposal site “whenever he determines” the discharge will have an “unacceptable
adverse effect” on identified environmental resources.” That is, the EPA, even
though the Army Corps of Engineers has granted a 404 permit, can still determine that a valley fill would pollute or otherwise harm the environment and revoke the permit.
So the EPA Fair Play Act would tie the hands of the EPA. No matter how bad a
valley fill or other disposal of overburden might be, once the Corps issued a
404 permit, the EPA could do nothing to protect our rivers and streams.
It
is unsurprising that Joe Manchin, a strong supporter of the mining industry,
would reintroduce this measure. West Virginia’s other Senator, Jay Rockefeller, supports the bill. He has at times stood his ground
against King Coal, but in more recent years has grown friendlier to the
industry. I imagine that this bill could get a lot of support in Congress,
passing the Senate and House. We can hope that it receives a veto from
president Obama.
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