EPA counters Mingo Logan Coal arguments on permit authority

Mingo Logan Coal asserts, without support, that the issuance of a Section 404(a) permit extinguishes the specification of disposal sites, leaving no specification for EPA to withdraw under Section 404(c), but the company’s “novel” theory conflicts with the plain language of the Clean Water Act, said the U.S. Environmental Protection Agency.

EPA on Oct. 3 filed a response with the U.S. Circuit Court of Appeals for the D.C. Circuit to a brief filed earlier by Mingo Logan Coal in a case involving EPA’s rejection of a Section 404 permit for the 2,278-acre Spruce No. 1 surface mine in Logan County, W.Va. A District Court judge had earlier this year thrown out EPA’s revocation of that permit, with EPA now appealing that decision at the D.C. Circuit.

In its opening brief, EPA said it established that § 404(c) of the Clean Water Act authorizes it to withdraw “specifications” of sites designated in § 404(a) permits for disposal of dredged or fill material into waters of the United States. In this case, for only the third time in forty years, EPA said it withdrew disposal site specifications that were integrated into a § 404(a) permit—the Spruce No. 1 permit. Mingo Logan Coal, a unit of Arch Coal (NYSE: ACI), asks this appeals court not to examine any of the circumstances surrounding EPA’s action, the agency contended. Instead, the company asserts that EPA can never, under any circumstances, exercise its express authority under § 404(c) after the U.S. Army Corps of Engineers issues a permit. “This Court should reject Mingo Logan’s position because it is contrary to the plain text of the Clean Water Act and EPA’s consistent, well-reasoned interpretation of the Act,” EPA wrote.

Section 404(c) authorizes EPA to withdraw specification of any defined area as a fill disposal site whenever necessary to avoid unacceptable environmental harms, EPA added. “Mingo Logan asserts, without  support, that the issuance of a § 404(a) permit extinguishes the specification of disposal sites, leaving no specification for EPA to withdraw under § 404(c),” the agency said. “But the company’s novel ‘de-specification’ theory conflicts with the plain language of the Clean Water Act. Under § 404(a), permits authorize discharges only ‘at specified disposal sites.’ If specification of disposal sites did not survive permit issuance, then permittees would be unable to lawfully discharge fill material. In short, all § 404(a) permits must contain specifications of disposal sites.”

EPA says two later Section 404 provisions don’t apply here

Mingo Logan also relies on § 404(p) and (q), two provisions enacted after § 404(c), to argue that disposal site specifications in § 404(a) permits are revocable only by the Corps, EPA argued. “There is no evidence, however, that a subsequent legislature intended to limit EPA’s § 404(c) authority through two provisions that do not mention § 404(c) or the relationship between specifications and § 404(a) permits,” it added. “And the snippet of legislative history that Mingo Logan highlights does not address EPA’s § 404(c) post-permit authority either.”

The Clean Water Act unambiguously authorizes EPA to withdraw specifications after a § 404(a) permit issues, EPA said. But even if the appeals court deems the statute ambiguous, it should uphold EPA’s reasonable interpretation of § 404(c), the agency said. “EPA’s long-held view, shared by the Corps, balances Congress’ overriding goal of environmental protection with the goal of regulatory certainty,” it said. “Amici contend that this Court’s approval of EPA’s 33-year-old interpretation of § 404(c) will suddenly and significantly harm the entire United States economy. But EPA has exercised its post-permit authority sparingly over the past four decades. And in any event, the policy preferences of amici cannot supply a basis for distorting the Clean Water Act’s clear language and discarding two administrative agencies’ consistent interpretation of that language.”

Mingo Logan also asks this court not to consider whether EPA’s action in this case was arbitrary or capricious, EPA noted. “We rest on our opening brief on this point, noting that Administrative Procedure Act (APA) review acts as an important check on EPA’s exercise of its post-permit § 404(c) authority,” it said.

The ruling under review at the appeals court was issued by Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia on March 23.

In January 2007, after ten years of study, the Corps granted Mingo Logan a Section 404 that authorized the discharge of dredged or fill material into parts of Pigeonroost Branch, Oldhouse Branch and Seng Camp Creek at the Spruce No. 1 coal mine. EPA vetoed the permit in January 2011.

Arch Coal has had a contractor, Eagle Creek Mining LLC, controlled by John and Thomas Potter, working the limited areas of Spruce No. 1 that is allowed to under the court mandates. U.S. Mine Safety and Health Administration data shows the mine produced 360,328 tons in the first half 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.