By Taylor Kuykendall

A test of the new U.S. Congress on mountaintop removal issues could be in the works as one proposed law looks to put the brakes on the mining technique while another seeks regulatory certainty for those engaged in the practice.

Rep. Bob Gibbs, R-Ohio, introduced on Feb. 11 a bill that would amend the Federal Water Pollution Control Act to limit the U.S. EPA's ability to either pre-emptively or retroactively veto Clean Water Act permits. The notion of whether or not the EPA can retroactively veto a permit has been a contentious issue within the coal industry since the EPA reversed a permit issued to Arch Coal Inc. for the Spruce No. 1 mine in West Virginia. The authority most recently has been upheld by the court.

"The EPA is continuing to overstep their regulatory authority written in the Clean Water Act, negatively affecting businesses and job creators and leaving vast uncertainty," Gibbs said in a statement. "The Regulatory Certainty Act will ensure the EPA follows the law and allows businesses to grow."

National Mining Association President and CEO Hal Quinn issued a statement applauding Gibbs' bill on Feb. 13. Quinn said the legislation ensures that permitting decisions will be made in a "fully informed, fair, and transparent manner."

"With EPA continuing to extend its regulatory reach over our nation's waters and lands, businesses need more durable assurances that their investments will not be perpetually exposed to the agency's whims," Quinn said. "Mr. Gibbs' legislation draws reasonable bounds around EPA's authority, and provides job creators the regulatory certainty and due process they deserve."

However, environmentalists opposing the practice of mountaintop removal, a form of large-scale surface mining that tends to be more economical for companies, say the authority is justified and needed. Diane Bady, founder and co-director of the Ohio Valley Environmental Coalition, worries that the current Congress will primarily be focused on aiding the fossil fuel industry and doing "nothing to help people who are hurt by these industries."

"If enacted, this would take away EPA's clear legal power to revoke permits that would illegally contaminate our water," Bady told SNL Energy. "Extensive, peer reviewed scientific research has clearly shown that the mountaintop removal industry has already caused widespread, serious stream contamination in southern West Virginia."

Luke Popovich, a spokesman for the National Mining Association, said the new Congress is likely to bring both bicameral and bipartisan support in "restraining EPA's attempt to regulate economic activity."

"More members from both parties share a general belief that stopping ongoing economic activity and preempting future economic projects before all the facts are in crosses a line," Popovich said. "EPA is recklessly abusing the trust that Congress has placed in it by assuming powers over the economy that Congress never intended it to have."

Popovich added that it is "too early to say if the president will brandish his veto as irresponsibly as EPA has brandished its veto authority." President Barack Obama has generally been supportive of environmentalists on the issue of coal and mountaintop removal, though he has also drawn criticism from the same groups.

The NMA's release praising the bill comes just as environmentalists were touting the introduction of another bill. The Appalachian Community Health Emergency, or ACHE, Act introduced earlier in the same week would require the Department of Health and Human Services to conduct a comprehensive study to determine the health effects of mountaintop removal mining while new permits are withheld under a moratorium.

"These studies are not necessary in the absence of any objective scientific evidence, let alone documented concerns, that would justify them," Popovich said. "For that reason, I don't believe this gambit will persuade fair minded people."

Vernon Haltom, executive director of Coal River Mountain Watch, told SNL Energy that the EPA is leading the way in protecting citizens in states like West Virginia. He said the ACHE Act would provide a needed pause to assess "definitively how this process creates such horrible health impacts in our communities."

"Unfortunately, the coal industry and its loyal legislators find the EPA's timid, under-reaching half measures offensive to their perceived right to plunder and pollute with no regulation whatsoever," Haltom said. "This response from coal's legislators to one veto of one portion of the Spruce mountaintop removal site demonstrates that we can't rely on existing laws and regulations to protect our health from this deadly practice."

Mary Anne Hitt, director of the Sierra Club's Beyond Coal campaign, was also not optimistic the ACHE Act would pass the current Congress.

"But the American people did not vote for polluted water and won't support it," Hitt told SNL Energy. "Congress should work to protect people from toxic pollution — not create more of it."

The Spruce permit is now being challenged on the merits of the veto after the U.S. Supreme Court declined to hear the broader challenge to the EPA's authority to retroactively veto a permit. The House Transportation and Infrastructure Committee's Subcommittee on Water Resources and Environment, which is chaired by Gibbs, hosted a hearing on the issue in July 2014.

In 2007, following a 10-year environmental review process, the U.S. Army Corps of Engineers issued a Section 404 Clean Water Act permit for the Spruce mine. In 2009, however, the EPA began taking steps to revoke the permit in light of a new standard adopted to take into account the project's effects on stream conductivity.

If it had been granted, Arch's 2,278-acre surface mining permit would have allowed one of the largest surface coal mine operations ever built in West Virginia. The EPA said the permit would eradicate wildlife in the region and have unacceptable effects on wildlife downstream.

"The people of Appalachia have already suffered too much from the destructive practice of blowing up mountains," Hitt said. "By proposing to tie EPA's hands, this bill would strip Appalachian communities of one of their last lines of defense against unchecked, dangerous pollution."