Arch Coal (NYSE: ACI) said in its Aug. 8 Form 10-Q report that it lost a bid to get a dispute over its Spruce No. 1 mine reviewed by a full appeals court and that it now intends to ask that the U.S. Supreme Court take up the matter.
In September 2009, the U.S. Environmental Protection Agency asked the U.S. Army Corps of Engineers to suspend, revoke or modify the permit issued in January 2007 to Arch’s Mingo Logan Coal under Section 404 of the Clean Water Act, claiming that “new information and circumstances have arisen which justify reconsideration of the permit.” The permit is for the 2,278-acre Spruce No. 1 strip mine in Logan County, W.Va.
That started a long review process that at one point included Mingo Logan, along with the Corps, West Virginia Department of Environmental Protection and the mineral owner, engaging in a consultation with the EPA as required by the regulations, to discuss “corrective action” to address the “unacceptable adverse effects” identified.
In January 2011, the EPA issued its “Final Determination” under Section 404(c) to withdraw the specification of two of the three watersheds approved in the current Section 404 permit as a disposal site for dredged or fill material. By separate action, Mingo Logan sued the EPA in April 2010 in federal court in Washington, D.C. seeking a ruling that the EPA has no authority under the Clean Water Act to veto a previously issued permit.
In March 2012, the U.S. District Court granted Mingo Logan’s motion for summary judgment, denied the EPA’s cross-motion for summary judgment, vacated the Final Determination and ordered that the Section 404 permit remained valid and in full force.
In May 2012, EPA filed a notice of appeal to the U.S. Court of Appeals for the D.C. Circuit. On April 23, a three-judge panel of the appeals court reversed the district court on the threshold issue and remanded the matter to the district court to address the merits of Arch’s Administrative Procedures Act (APA) challenge to the Final Determination. On June 6, Mingo Logan filed a petition for rehearing before the full appeals court and on July 25 the court denied the petition. “Mingo Logan intends to seek further review of this case and will file a petition for writ of certiorari in the Supreme Court of the United States,” said the Form 10-Q.