Legal Victory for Clean Water Act Permitting

Runoff from a valley fill following mountaintop removal mining in Kentucky | Matt Wasson, Appalachian Voices

Runoff from a valley fill following mountaintop removal mining in Kentucky | Matt Wasson, Appalachian Voices

A Legal Victory to Stop Damaging Projects that Pollute Water and Threaten Health

On Tuesday, the EPA won a legal victory for its ability to veto permits for projects with significant adverse impacts that discharge “dredge or fill materials,” such as mining waste from mountaintop removal mining, into streams and rivers. The U.S. Court of Appeals for the District of Columbia overturned a lower court’s ruling that the EPA did not have the statutory authority to revoke a Clean Water Act Section 404 permit that allowed operators of the Spruce Mine in West Virginia to discharge mining waste into local streams.

What is Mountaintop Removal Mining?

Mountaintop removal mining is pretty much what it sounds like. To reach the coal seams below, mining companies cut down trees and blast holes into the rock. Rubble, debris, and mining waste are dumped into valleys, burying streams and resulting in devastating impacts for local communities and the environment.

As of 2008, mountaintop removal mining operators have blown up over 380,000 acres of mountains with much of the resulting 4.85 billion cubic yards of mining waste burying nearly 2,000 miles of streams. Flash floods exacerbated by deforestation and valleys filled with mining waste as well as contaminated drinking water from pollution of groundwater and headwater streams pose significant risks to public health and safety  for local communities.

What Does this Decision Mean for Clean Water?

Back in 1999, Hobet Mining, Inc. applied for a Section 404 permit to discharge mining waste from the Spruce Mine into several high-quality streams and their tributaries. Under the Clean Water Act, such discharges are allowed under a Section 404 permit if there will be a “minimal cumulative adverse effect on the environment” [PDF]. However, the law also grants authority to the EPA Administrator along with the Secretary of the Army Corps of Engineers under Clean Water Act Section 404(c) to withdraw a 404 permit in cases where such discharges “will have unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas…, wildlife, or recreational areas” [PDF].

By 2009, increasing evidence pointed to significant adverse impacts from the Spruce Mine causing the EPA to propose a determination to restrict or prohibit the discharges of mining waste into local waters as authorized under their 404 permit. Invoking its 404(c) authority, the Agency made a proposed determination, the regional administrator made a recommendation, which was then followed by a final determination [PDF] in 2011. The Agency found that the Spruce Mine would dump 110 million cubic yards of mining waste [PDF], burying more than six miles of streams and polluting downstream waters.

The primary legal question was whether the EPA could only veto a Section 404 permit prior to its approval. While the lower court ruled in favor of the current mine operators, Mingo Logan Coal Company, that the EPA couldn’t veto a permit after it had been authorized, the federal appeals court reversed their decision. The EPA’s use of its authority under Section 404(c) is extremely rare, having been employed by the Agency only 13 times in the history of the Clean Water Act. However, it is a critical backstop to prevent the very worst and most damaging projects from moving forward. While this decision won’t prevent mountaintop removal mining, it supports the EPA and the Army Corps’ statutory authority to block projects that damage human health and the environment.  

While the statutory authority of the EPA and the Army Corps is challenged in the courts, members of Congress have tried to remove this veto authority in legislative language under the Clean Water Cooperative Federalism Act most recently introduced in the 112th Congress.