Mines must receive what are called “404” permits from the EPA to operate. One such mine in southern West Virginia followed all the proper procedures and got the green light from the EPA to proceed with operations in 2007. But now, three-and-a-half years later, in an unprecedented reversal, the EPA has retroactively “reinterpreted” its authority, withdrawn the permit it issued, and shut down the mine, ending 280 current and future jobs.
The EPA also announced that 79 of the 404 permit applications still being considered would be subject to “enhanced environmental review,” effectively putting them in limbo along with the jobs and economic activity they could create. Some of those permits are for jobs in Kentucky.
Changing the rules in the middle of the game is unfair and means no mining operation is secure from being shut down, even those that have been operating for years. The thousands of Kentuckians who work in coal mining or have jobs dependent on it are in jeopardy. Other industries are at risk, too: Farmers, developers, the transportation industry and others also need permits from the EPA to continue to operate. They too could see those permits revoked.
The EPA has turned the permitting process into a back-door means of shutting down coal mines by sitting on permits indefinitely, thus removing any regulatory certainty. What they’re doing is outside the scope of their authority and the law and represents a fundamental departure from the permitting process as originally envisioned by Congress. That’s why the two of us, along with Senator James Inhofe, are introducing the Mining Jobs Protection Act in the U.S. Senate.
This bill will tell the EPA to “use it or lose it” when deciding whether to invoke its veto authority of a 404 permit within a reasonable time frame, giving permit applicants the certainty they need to do business. The bill would ensure that all 404 permits move forward to be either approved or rejected, so applicants aren’t left in limbo unsure how to act. The bill also ensures that the EPA cannot use its veto retroactively. While being fair to permit applicants, the bill still preserves the EPA’s full veto authority to protect human health and the environment.
Here’s how the legislation would work. Once the EPA receives a 404 permit, it will have 30 days to determine if it is considering using its veto authority. If the agency is considering doing so, it must publish that fact in the Federal Register and cite any potential concerns within that initial 30 days.
The EPA then has an additional 30 days, for a total of two months, to invoke its veto authority. If the agency does not use its veto authority within 60 days the permit automatically moves forward and the EPA’s veto authority expires. All permits that have already been applied for would go through this process, ensuring every permit gets a fair shake. Any permits vetoed prior to passage of the bill could be reconsidered by the Army Corps of Engineers. And our legislation would address every Kentucky 404 permit, not just one or a few.
This is a fair process that allows the EPA to act as vigorously as necessary to protect the environment and those of us living in it, while also giving permit applicants the certainty of knowing within a reasonable time frame whether or not to proceed with mining operations, and knowing that once they have the green light, it won’t be revoked. More important, this legislation will allow Kentucky to protect the coal and related industry jobs we already have and grow new ones in the future.
The EPA’s mission is important, but so is job creation. We think our bill strikes a fair balance toward conserving the best of the Bluegrass State while also building towards a brighter future, and we look forward to working with lawmakers in both parties to make the Mining Jobs Protection Act law.
— The authors represent Kentucky in the United States Senate.