Arch wants appeals court to rehear W.Va. mine case

Vicki Smith, Associated Press
June 13, 2013

MORGANTOWN, W.Va. (AP) -- Arch Coal Inc. is preparing to re-argue key points in a long-running battle with the U.S. Environmental Protection Agency over its retroactive veto of a water pollution permit for a massive West Virginia strip mine.

The U.S. District Court of Appeals for the District of Columbia has given EPA 15 days to file an answer to the St. Louis-based company's request for a rehearing.

In April, the appellate panel ruled that EPA had the legal authority to revoke a Clean Water Act permit in 2011, even though the U.S. Army Corps of Engineers had vetted and issued it four years earlier to Arch and its Mingo Logan Coal Co. subsidiary.

EPA said destructive and unsustainable mountaintop removal mining practices at the Spruce No. 1 mine mountaintop removal mine in Logan County would cause irreparable environmental damage and threaten public health.

U.S. District Judge Amy Berman Jackson later ruled that the agency had overstepped its authority.

Her ruling and the subsequent reversal reverberated across coal country, but a broad cross-section of industries argue it could have a nationwide chilling effect on economic development because it removes finality from the federal permitting process.

In requesting a rehearing, Arch calls EPA's action "as audacious as it is unprecedented" and again challenged its unilateral power to nullify Clean Water Act permits issued by other agencies at any time.

"EPA's sweeping interpretation of its limited power over 'specifications' under section 404(c) of the CWA is not just breathtaking," Arch argues. "It is also — as the district court correctly concluded — wrong."

The appellate panel's decision essentially gives an agency with a secondary permitting role "the authority to eviscerate the final agency action of a different agency," Arch contends. "It makes no sense to allow EPA to effectively nullify a permit issued by the corps based on nothing more than the fact that EPA — but not the corps — has changed its mind."

Mountaintop removal is a highly efficient but destructive form of strip mining that blasts apart mountain ridge tops to expose multiple coal seams. The resulting rock and debris is dumped in streams, creating so-called valley fills. Spruce No. 1 would have buried nearly 7 miles of streams.

It was only the 13th time since 1972 that the EPA had used the veto authority and the first time it had acted on a previously permitted mine. The agency said it reserves the power for rare and unacceptable cases, but Jackson declared the action "incorrect and unreasonable."

The appellate court's April ruling directed her to address the industry's argument that the EPA's action was an "arbitrary and capricious" violation of the Administrative Procedure Act, an issue she has not previously ruled on.

Arch and its supporters argue Congress never intended to give the EPA "unbridled power" over water-pollution permits for coal mines, and that final authority to issue, oversee and enforce permits issued under section 404 of the Clean Water Act lies solely with the corps.

The EPA countered that while law lets the corps issue permits for the dumping of fill material, another section gives EPA the unambiguous right to "prohibit, deny, restrict or withdraw specification of fill disposal sites."

That power was created in a legislative compromise the EPA says was intended to let the agency do its job and prevent unacceptable environmental damage. The EPA says it can invoke that authority before, during or after the corps' permitting process.

The appellate decision says Congress made its intent plain in "unambiguous language" giving EPA "a broad veto power extending beyond the permit issuance."

Nor does the law impose a time limit for EPA to act, instead empowering it to do so whenever it determines an "unacceptable adverse effect" will result.

That ruling, Arch says, "eviscerates the corps' primary role" in the permitting process and "disregards what members of all three branches of the federal government ... have repeatedly emphasized: that section 404, as the district court put it, 'was expressly intended to provide finality.'"