The Mingo Logan Coal unit of Arch Coal (NYSE: ACI) on Nov. 13 took its case over Section 404 permitting to the U.S. Supreme Court, with two U.S. Senators immediately applauding that move and supporting the coal producer against the U.S. Environmental Protection Agency.
Sen. David Vitter, R-La., top Republican on the Environment and Public Works Committee, and Sen. Joe Manchin, D-W.Va., a member of the Senate Energy and Natural Resources Committee, issued Nov. 14 statements about Mingo Logan’s request for Supreme Court review of EPA’s decision to revoke a Clean Water Act permit for the 2,278-acre Spruce No. 1 strip mine in southern West Virginia.
EPA overturned the U.S. Army Corps of Engineers’ original 2007 decision to issue a Section 404 permit to Mingo Logan. That has coal producers, and outside industries that also use Section 404 permitting, worried that EPA now has taken on unlimited authority to veto issued permits that they relied on in making millions of dollars in investments in various kinds of water-related projects.
The permit for Mingo Logan allows placement of rock and soil from a strip mine site into valley fills on and around streams within Corps jurisdiction. Mingo Logan, which began permitting this project in the 1990s, had to at one point sharply reduce the size of the project to even get the permit that it got – which was then vetoed by EPA anyway. The permit was issued by the George W. Bush EPA, then vetoed by the Obama EPA.
“This case represents everything that’s wrong with the EPA’s view of the private sector. It’s unacceptable that a business in the United States would be forced to spend hundreds of man-hours to obtain a federal permit and in order to provide needed jobs for coal workers, only to see the EPA arbitrarily revoke the permit in an instant,” said Vitter. “Whether it’s Spruce Mine in West Virginia or Pebble Mine in Alaska, EPA and this Administration have demonstrated their commitment to shutdown job-creating businesses, even if it means going above the law.”
“For too long the EPA has overreached with its power at the cost of countless American jobs and critical investments,” Manchin said. “As we continue to face a recovering economy, we cannot afford to stifle energy production and good-paying jobs. It is fundamentally wrong for any bureaucratic agency to regulate what has not been legislated. Giving such absolute power to an agency will have a chilling effect on investment and job creation across our great nation.”
In August 2013, Vitter and Manchin sent a letter to EPA requesting information and correspondence regarding the agency’s decision to revoke the Clean Water Act permit for the Spruce No. 1 mine. To date, EPA has not responded.
The Nov. 13 Mingo Logan filing at the Supreme Court said: “In this case, EPA attempted—for the first time ever—to nullify an existing, Corps-issued permit by purporting to ‘withdraw’ the site specifications years after the permit had been issued. While the Corps’ authority to revoke duly-issued permits is carefully circumscribed to promote compliance with permits and protect reliance interests, EPA’s claimed authority to withdraw specifications is essentially uncabined. The District Court concluded that EPA’s assertion of a sweeping power to effectively invalidate permits duly-issued by the Corps was inconsistent with the CWA’s text, structure, and legislative history. The Court of Appeals reversed only by reading section 404(c) in a vacuum.”
Arch as had contractor Eagle Creek Mining LLC, controlled by John and Thomas Potter, working the limited areas of the Spruce No. 1 site that it is allowed to work without getting into legal issues with the valley fills. U.S. Mine Safety and Health Administration data shows that the Logan County mine produced 384,792 tons in the first three quarters of this year, though only 56,640 tons of that in the third quarter, against 624,111 tons in all of 2012 and 819,831 tons in all of 2011.