Peabody Western Coal Co., a Peabody Energy (NYSE: BTU) unit that operates the big Kayenta strip mine in Arizona, has appealed an administrative amendment that the Navajo Nation Environmental Protection Agency issued under a Title V Clean Air Act permit.
The appeal, filed Oct. 1 at the U.S. Environmental Protection Agency’s Environmental Appeals Board, said: “Peabody strongly believes that the appropriate Respondent to this Petition must be EPA rather than NNEPA. When an appeal of a federal permit under the Clean Air Act (CAA) has been submitted to the Board in the past and that permit had been issued under an EPA delegation of authority to administer the federal permit program in question, the Company is aware that the Clerk’s historical practice has been to request a response to the subject appeal from the agency that issued the federal permit on behalf of EPA. Although Peabody offers no opinion of the appropriateness of that prior practice, we do believe that its implementation with this instant appeal would be completely inappropriate for at least two reasons.”
- First, while this petition challenges the legality of a particular permitting action by NNEPA while acting as EPA’s delegate, Peabody asserted that NNEPA’s action was unlawful because EPA had no statutory authority to delegate its authority to administer the federal operating permit program to NNEPA. In effect, NNEPA’s improper permitting action was due to EPA’s prior unlawful delegation that purportedly authorized NNEPA’s action, the company argued.
- Second, when EPA delegated its authority to NNEPA to administer the federal operating permit program, EPA gave notice that because it was retaining its authority to act upon petitions, any such petitions must be submitted to its Region IX office. “Those particular regulations provide the public with an opportunity to petition EPA to reopen a federal operating permit for cause,” Peabody noted. “It is inconsistent and illogical for EPA, on the one hand, to insist on responding to a public petition to reopen a federal operating permit issued by NNEPA under its delegated authority, but yet on the other hand, to allow NNEPA as a delegate agency to respond to a petition for the Board’s review of the same NNEPA-issued federal permit.”
The Kayenta Complex is a surface coal mine located twenty miles southwest of Kayenta, Ariz. and within the exterior boundaries of the Navajo Nation. The mine supplies about 7.8 million tons of coal annually to the Navajo Generating Station near Page, Ariz., under a long-term contract. The Navajo plant, operated by the Salt River Project on behalf of several co-owners, is 2,250 MW in size and Kayenta is its only coal source.
Peabody said this is an issue of broad national policy since it impacts other EPA tribal initiatives. “The Agency is now sending a mixed message to those tribes which seek to build their title V tribal permitting capacities under the Clean Air Act by administering EPA’s delegated federal permit program,” the company said. “On the one hand, in keeping with the intent of the Agency’s approach, those tribes will undoubtedly gain experience in the administration of a permit program under the Act. But, on the other hand, they will be doing so with regulations provided by EPA for which they have no legal authority to administer! In essence, EPA’s inappropriate delegation of its part 71 administrative authority has cast those tribes in the role of assisting EPA in an unlawful manner. EPA’s initiation and perpetuation of unlawful tribal permitting actions imposes a grave injustice upon those unwitting tribes that unfortunately believe they are advancing their tribal interests.”