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Raising sobering implications for home builders and other businesses that hold Section 404 permits under the Clean Water Act (CWA), the Environmental Protection Agency earlier this year withdrew the mining permit for Arch Coal's Spruce No. 1 Mine in Logan County, W.Va.
The 2,300-acre mine uses mountain-top mining practices, making it a favorite target of East Coast environmentalists for years.
The Spruce Mine permit was issued under the CWA in 2007 after an extensive 10-year review, including the preparation of a multi-million dollar environmental impact statement. The EPA fully participated in the comprehensive permitting process and chose not to elevate or veto the permit prior to its issuance.
Mingo Logan — a subsidiary of Arch Coal — had abided by every requirement of the permit and the EPA had never claimed otherwise. Nevertheless, nearly three years after the permit was issued and work had commenced, the EPA asked the U.S. Army Corps of Engineers to use its permit oversight authority to suspend or revoke the permit.
When, after careful review, the Corps found no grounds to revoke or modify the permit, the EPA took matters into its own hands by issuing new federal standards for mountain-top mining that the Logan County mine could not meet; and the standards were made retroactive.
Pete Silva, director of the EPA Office of Water, revoked Arch Coal’s permit last month and resigned from his position on the following day.
Silva said that withdrawal of the permit was necessary because “emerging science” showed the destructive nature of mountain-top mining practices.
This was the first time since the CWA was enacted in 1972 that the EPA had revoked a previously issued, valid CWA Section 404 permit.
Arch Coal expressed “shock and dismay” at the EPA’s unprecedented action and Sen. Jay Rockefeller (D-W.Va.) sent an angry letter to the President.
“This has created trepidation for permit holders and it sends the message that the EPA can take away their permits at any time and shut down their businesses,” said Susan Asmus, NAHB’s senior vice president for environment, labor and land development.
“If the EPA is allowed to revoke this permit,” said Asmus, “every similarly valid Section 404 permit held by any entity — businesses, public works agencies and individual citizens — will be in increased regulatory limbo and potentially subject to the same unilateral, after-the-fact revocation.”
She said that the implications could be staggering, reaching all areas of the U.S. economy — including, but not limited to, agriculture, home building, mining, transportation and energy.
For more information, e-mail Glynn Rountree at NAHB, or call him at 800-368-5242 x8662.