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Vitter, Manchin: EPA Continues Clean Water Act Assault on Businesses
Senators demand information from EPA on revocation of previously-approved federal permit for coal company in West Virginia
August 29, 2013

(Washington, D.C.) – U.S. Sen. David Vitter (R-La.), top Republican on the Environment and Public Works Committee, and U.S. Sen. Joe Manchin (D-W.Va.), a member of the Senate Energy and Natural Resources Committee, today sent a letter to the U.S. Environmental Protection Agency’s (EPA) regarding its decision to revoke a Clean Water Act section 404 permit previously issued by the U.S. Army Corps of Engineers to the Mingo Logan Coal Company in West Virginia.

“EPA’s revocation came despite Mingo Logan’s faithful compliance with the permit’s terms, and the Corps’ position that permit revocation was not warranted,” wrote the Senators in the letter. “We want the EPA to provide information on the circumstances that led to the agency’s extreme approach and also whether the Corps as the permitting agency supported EPA’s actions.”

In 2007, the Corps issued a Section 404 permit to Mingo Logan in West Virginia authorizing the company to discharge dredged and/or fill material into waters of the United States during mining activities. Two years later, the Corps rejected an EPA request for the Corps to suspend, revoke, or modify the issued permit.  After being rejected by the Corps, EPA in 2010 claimed the authority to unilaterally revoke Mingo Logan’s permit under Section 404(c) of the Clean Water Act (CWA).  EPA’s 2011 decision to finalize the revocation of Mingo Logan’s permit was upheld by a federal court on April 23, 2013 and lends serious question to the agency’s regulatory agenda under the CWA.  

Text of today’s letter is below.  Click here for the PDF version.


August 29, 2013


VIA ELECTRONIC MAIL
IMMEDIATE ATTENTION REQUESTED

The Honorable Nancy K. Stoner
Acting Assistant Administrator
U.S. Environmental Protection Agency
Office of Water
1200 Pennsylvania Ave, NW
Washington, D.C. 20460

Dear Acting Assistant Administrator Stoner:

We are troubled by the Environmental Protection Agency’s (EPA) position in Mingo Logan Coal Company v. United States Environmental Protection Agency that EPA may veto a Clean Water Act (CWA) section 404 permit essentially whenever it pleases.   As you are likely aware, the Corps and EPA worked closely with the Mingo Logan Coal Company (Mingo Logan) throughout the multi-year Section 404 permitting review and National Environmental Policy Act (NEPA) environmental impact study (EIS) of the Spruce mine.  After concluding this careful review, the Corps issued a Section 404 permit to Mingo Logan in 2007, authorizing the company to discharge dredged and/or fill material into waters of the United States during mining activities.   

 In 2009, EPA alleged that “‘new information and circumstances’” justified the Corps’ reconsideration of the Section 404 permit and requested that the Corps “‘suspend, revoke or modify the permit issued’” to Mingo Logan.   The Corps declined EPA’s request because “there were ‘no factors that currently compelled it to consider permit suspension, modification, or revocation.’”   Likewise, in considering a contemporaneous third-party challenge to the Section 404 permit, a federal court recognized that EPA “[did] not provide substantial new information concerning the Spruce No. 1 permit.”   

Less than one year later, however, EPA proposed to unilaterally revoke Mingo Logan’s Section 404 permit by withdrawing and prohibiting certain disposal site specifications and claimed it was authorized to do so under CWA section 404(c).   EPA finalized its revocation of Mingo Logan’s Section 404 permit on January 13, 2011.   EPA’s revocation came despite the significant resources Mingo Logan had invested in applying for and obtaining the Section 404 permit, the company’s faithful compliance with the permit’s terms, and the Corps’ position that permit revocation was not warranted.

We would like to better understand the circumstances behind this issue and we therefore request the following information:

1)    Any correspondence from EPA or Corps personnel questioning whether EPA had the authority to exercise 404(c) after the Corps issued the Section 404 permit.

2)    Any correspondence from EPA or Corps personnel who expressed any concern over whether new information existed regarding the Section 404 permit.

3)    Any correspondence from EPA or Corps personnel who expressed any concern over EPA’s decision to exercise 404(c) after a Section 404 permit had been issued.  

4)    Any and all correspondence from environmental groups or other third-parties urging or requesting EPA to utilize Section 404(c) for the Spruce mine.

5)    Any correspondence from EPA requesting that the Corps support EPA’s decision to exercise Section 404(c) after the permit had been issued.

6)    Any correspondence from the Corps concerning whether to support EPA’s decision to exercise Section 404(c) after the permit had been issued.

Sincerely,


                        
David Vitter                                                                Joe Manchin
U.S. Senator                                                                U.S. Senator





CC:

Brigadier General Margaret W. Burcham
Colonel Steven McGugan




Majority Office
410 Dirksen Senate Office Bldg.Washington, DC 20510-6175
phone: 202-224-8832
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phone: 202-224-6176