Arch Coal: Appeals panel should uphold rebuke of EPA
MORGANTOWN, W.Va. -- Arch Coal Corp. says Congress never intended to give the U.S. Environmental Protection Agency "unbridled power" over water-pollution permits for coal mines, and an appellate court should uphold a judge's ruling that EPA overstepped its authority in vetoing them for one of West Virginia's largest mountaintop removal operations. Final authority to issue, oversee and enforce permits issued under section 404 of the Clean Water Act lies solely with the U.S. Army Corps of Engineers, not the EPA, St. Louis-based Arch argues in a 175-page response to EPA's appeal. The document was filed with the U.S. District Court of Appeals for the District of Columbia on Tuesday. U.S. District Judge Amy Berman Jackson ruled in March that EPA had overreached in the case of the 2,300-acre Spruce No. 1 mine in Logan County, a ruling praised by industry and the politicians who support it. Last month, however, five environmental groups argued the EPA did have the power to veto the permits. They also contend that Jackson improperly considered the potential economic implications when ruling otherwise.
Arch counters by saying that giving EPA "perpetual and unrestricted" license to modify permits after they're issued would destroy the certainty the permit is intended to give the mining industry. "Congress did not give EPA such unbridled power," it argues. In January 2011, the EPA revoked a permit that the corps had issued four years earlier to Arch and its Mingo Logan Coal Co. subsidiary. The EPA concluded that destructive and unsustainable mining practices would cause irreparable environmental damage and threaten the health of communities nearby. 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. EPA said it reserves the power for rare and unacceptable cases, but Jackson declared the action "incorrect and unreasonable."In its appeal, the EPA said that while one section of the Clean Water Act lets the corps issue permits for the dumping of fill material, another 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. Arch, however, argues in its latest filing that EPA has no such power, and that the wording of the law makes a clear difference between authority to issue a "permit" and authority to create the "specifications" under which those permits are issued. "The corps has power over permits, while EPA has power only over specifications," it says. The language "allows EPA only to prohibit, deny, restrict or withdraw 'specifications.'"The absence of the word 'permit' in Section 404(c) is significant," Arch says. "... That alone strongly indicates that Congress did not intend through section 404(c) to give EPA any power over issued permits. "`Specification' is not shorthand for permit.... "'Specify connotes no authorization to act," it argues. 'Specification' therefore is merely the act of describing a location to put dredged fill material, and it occurs either outside the permitting context altogether or as one step on the way to the issuance of the permit."
Arch argues that EPA's interpretation of the law "obliterates the choice Congress made" and says its encroachment on the corps' authority "could not be more plain." "EPA asked the corps to use its power to modify or revoke the permit; the corps said no," the company says. "EPA nevertheless attempts to do so on its own." The appeals court has not yet scheduled oral arguments in the case.