Judge overturns EPA veto

By |  March 28, 2012

The Federal District Court for the D.C. Circuit has ruled that the U.S. Environmental Protection Agency exceeded its authority last year when it revoked a previously issued mountaintop mine permit.

The mine owner, Arch Coal, sued to overturn EPA’s action last year and the National Stone, Sand & Gravel Association (NSSGA) filed an amicus brief, noting need by the aggregates industry to rely on the finality of Clean Water Act permits to operate.

The government asked Judge Amy Jackson not to consider NSSGA’s amicus brief. The judge, however, not only rejected the request, but even cited it in the text of her 34-page opinion, noting that the NSSGA brief supported her finding that EPA’s interpretation was “unreasonable.” Environmental groups are urging EPA to appeal the judge’s decision.

“EPA’s veto signaled that, despite NSSGA members’ good faith and reliance on legally issued permits, our ability to operate could be at risk. Aggregates producers appreciate Judge Jackson’s finding that EPA did not act reasonably in revoking a long-standing Clean Water Act permit,” noted NSSGA Board of Directors Chairman Ron Summers.

On Jan. 13, 2011, EPA vetoed the Clean Water Act section 404 Arch Coal Co. permit for its Spruce Mine #1 that had been issued by the U.S. Army Corps of Engineers in 2007. This was the first time that EPA has vetoed a previously issued corps section 404 permit.

NSSGA’s brief offered the unique perspective of the aggregates industry and detailed the detrimental effects of not having reliable permits. During a hearing in November, the government argued that EPA has the authority to withdraw a permit even after it has been finalized, stating the law allows the agency to do so “whenever it determines” the environment can be impacted.

However, Arch Coal argued that EPA’s veto authority is limited only to pre-permit activities. In her latest ruling, Judge Jackson found that EPA could not extend “its veto authority indefinitely after a permit has been issued.”

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