Arch Coal unit to again take Spruce No. 1 permit case to appeals court

The Mingo Logan Coal unit of Arch Coal (NYSE: ACI) is taking a Sept. 30 decision from the U.S. District Court for the District of Columbia over its controversial Spruce No. 1 surface mine in West Virginia to a higher level.

Said Mingo Logan in a brief Nov. 26 filing at the District Court: “Notice is hereby given of Mingo Logan Coal Company, Inc.’s appeal to the United States Court of Appeals for the District of Columbia Circuit from this Court’s Order (ECF No. 106) and Memorandum Opinion (ECF No. 107) entered on September 30, 2014.” The notice didn’t get into the substance of that appeal.

This long-running case is over the power of the U.S. Environmental Protection Agency to veto a Section 404 Clean Water Act permit after it had been issued by the U.S. Army Corps of Engineers. In 2010, Mingo Logan Coal filed this lawsuit, challenging the EPA’s decision to withdraw its specification of two locations designated in Mingo Logan’s Clean Water Act permit as disposal sites for the fill material generated by the Spruce No. 1 strip mine in southern West Virginia. Mingo Logan claimed that EPA exceeded its statutory authority under section 404(c) of the Clean Water Act because it rescinded the specification of the disposal sites after the section 404 permit had been issued by the Corps. It also alleged that EPA’s decision to veto the specifications was arbitrary and capricious and therefore in violation of the Administrative Procedure Act (APA).

In March 2013, the U.S. District Court for the District of Columbia ruled on summary judgment for Mingo Logan, saying only the Corps had the power to veto this permit. EPA appealed, and the U.S. Court of Appeals for the D.C. Circuit subsequently held that EPA did have the authority to rescind a specification even after the permit to discharge was in hand. The appeals court remanded the case back to the District Court for consideration of other issues, resulting in the Sept. 30 decision from District Judge Amy Berman Jackson.

The judge wrote: “Because the Court finds that EPA’s decision to revoke the specification of Pigeonroost Branch and Oldhouse Branch as disposal sites for the discharge of dredged or fill material generated in connection with the Spruce No. 1 Mine, as explained in the Final Determination, was reasonable, supported by the record, and based on considerations within EPA’s purview, it will grant EPA’s motion for summary judgment and deny Mingo Logan’s motion for summary judgment.”

This case has caught national attention from industries outside of coal because the court rulings essentially give EPA new authority to veto issued Section 404 permits for other industries, as well. Republicans in Congress have also seized on the Mingo Logan situation as a sign of what they call EPA over-reach in various regulatory areas.

During years of legal infighting over this mine, Arch Coal has been allowed to do some mining in certain areas not affected by the permit revocation. Spruce No. 1 is listed with the U.S. Mine Safety and Health Administration under contract operator Eagle Creek Mining LLC, with MSHA data showing that the mine produced 530,822 tons in the first three quarters of this year, and 675,216 tons in all of 2013.

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.