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EPA Section 404 Permits Position
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The members of the Industrial Minerals Association – North America (IMA-NA) support initiatives which will promote the improved efficiency of the overall permitting processes within the Environmental Protection Agency (EPA).  However, we are deeply concerned with a recent veto threat by the EPA of an existing Clean Water Act (CWA) Section 404 permit because such action could place every Section 404 permit in jeopardy and lead to extraordinary regulatory uncertainty for all businesses which hold these permits.

CWA Section 404 establishes a program to regulate the discharge of dredged and fill material into waters of the United States.  Congress designated the U.S. Army Corps of Engineers (Corps) with sole responsibility for administering and enforcing Section 404 permitting.  EPA has authority to develop environmental guidelines in conjunction with the Corps and to prevent the Corps from authorizing certain disposal sites under limited circumstances. 

The EPA has announced that it may revoke a previously issued Section 404 permit for the Mingo Logan’s Spruce No. 1 surface mine located in Logan County, West Virginia, and operated by Arch Coal.  The permit was issued in 2007 after an exhaustive 10-year review which included a costly Environmental Impact Statement.  EPA participated in, and agreed to the provisions and findings of, the permit.  The mine has maintained compliance to the permit since its issuance, a fact that is not in question.  Further, the Corps has found no grounds for the revocation or modification of the permit.

The CWA was enacted in 1972, and since that time EPA has never revoked an existing Section 404 permit.  IMA-NA, although not directly involved with the Spruce No. 1 mine, has deep concerns as to the precedent which will be established if EPA proceeds with this action. 
Businesses must be able to operate, make investments, set strategic goals and hire employees based on the relative certainty of a well-conceived business model which has taken into account all anticipated risks.  If EPA can revoke permits, without cause, businesses will simply be unable to perform proper due diligence, provide assurances to investors and operate in a fashion that creates jobs and supports the American economy.

The IMA-NA is a trade association which represents companies engaged in the extraction and processing of important mineral resources, and the IMA-NA stands ready to engage constructively with EPA, Congress, policy-makers and stakeholders to ensure regulatory certainty relative to Section 404 permits during these trying economic times.