EPA appeals court decision rejecting its coal permit veto authority

The U.S. Department of Justice, on behalf of the U.S. Environmental Protection Agency, filed a May 11 notice at the U.S. District Court for the District of Columbia that it has appealed a March 23 ruling by the District Court that struck down an EPA veto of a Clean Water Act permit that had been issued to a unit of Arch Coal (NYSE: ACI).

The District Court on March 23 ruled that when EPA vetoed the permit, which had been issued by the U.S. Army Corps of Engineers with the advice of EPA, it overstepped its authority under Section 404 of the Clean Water Act. EPA is now taking it case for that veto to the U.S. Court of Appeals for the District of Columbia Circuit.

The judge on March 23 reversed EPA’s January 2011 ruling that revoked Mingo Logan Coal‘s Spruce No. 1 Section 404 permit in Logan County, W.Va. U.S. District Judge Amy Berman Jackson concluded that the EPA did not have the authority to invalidate an existing permit, and that the EPA had exceeded its authority under the Clean Water Act.

The permit was issued by the Corps in 2007 after the company worked 10 years to address environmental concerns in part expressed by the EPA. The Spruce No. 1 project, at that point the largest surface coal mine permit permitted by the West Virginia Department of Environmental Protection at over 3,113 acres, had been the target of a late 1990s federal lawsuit filed by environmental groups.

To settle the suit, the Corps agreed to put the Spruce No. 1 Section 404 permitting through an unprecedented environmental review process. That process in 2007, under President George W. Bush, eventually resulted in a much slimmed down permit, with the acres reduced to 2,278 and the lower seams removed from the mine plan to minimize the amount of rock and dirt going into valley fills that cover streams. But EPA, under pressure from the environmental groups and with a certain amount of cooperating agency authority in the Corps permitting process, in January 2011 vetoed the permit as not being stringent enough.

States and state mining associations, fearing EPA’s new assertion of veto authority over issued Section 404 permits, joined the suit as intervenors on the side of Mingo Logan Coal. Coal-fired power generators have also been nervously looking on, since EPA’s newly-asserted authority poses a threat to the production of coal, particularly coal out of Central Appalachia where Spruce No. 1 is located.

Arch Coal has had a contractor, Eagle Creek Mining LLC, working certain limited areas of the Spruce No. 1 site while the battle over the Section 404 permit was carried out. The West Virginia DEP website shows that as of an April 26 site inspection, 329 acres of the 2,278-acre permit area had been disturbed up to that point. The U.S. Mine Safety and Health Administration database shows that Eagle Creek Mining, controlled by John and Thomas Potter, produced out of this “active” mine 177,056 tons in the first quarter of this year and 819,831 tons in all of 2011.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.