The permit issued Thursday would allow mining along Bullpen Fork. Originally, the company proposed a valley fill in a stream that drains 340 acres. The new permit fills a stream that drains 291 acres, according to EPA officials.
A federal court settlement signed by the U.S. Department of Justice says that, "as a general matter" all permits with valley fills in streams that drain 250 acres or more would be forced to receive individual permits, rather than be approved under the less stringent nationwide permit.
The Bullpen Fork permit was issued under the nationwide permit.
Under the Clean Water Act, activities can only be approved through a nationwide permit if regulators determine they will have minimal cumulative adverse environmental impacts.
In an interview, McCabe said no agency has determined that the Bullpen Fork permit and related mining in the area will have minimal cumulative impacts. But he added that he thought the "as a general matter" language in the settlement meant there was no need for Bullpen Fork to receive an individual permit.
McCabe said no one knows what the long-term cumulative impacts of large valley fills and mountaintop removal mines are. He said those questions will be answered by a two-year environmental impact study by regulators, which was also part of the court settlement.
Cindy Rank, mining chairwoman of the West Virginia Highlands Conservancy, said, "I think it was wrong for them to issue that permit without considering the cumulative impacts, and it should have been an individual permit."