West Virginia Record

WASHINGTON – Mingo Logan Coal Company has hired former Solicitor General Paul Clement to represent it in litigation against the Environmental Protection Agency over a retracted Clean Water Act permit.

The move possibly signifies an appeal to the U.S. Supreme Court is coming or has been made, as Clement has been hired to present high-profile appeals to the nation’s highest court since he left office.

An Arch Coal spokesperson did not return a message seeking verification of an appeal. Arch Coal owns Mingo Logan Coal.

Clement was solicitor general – the office that represents the federal government in issues before the U.S. Supreme Court – from 2004-08.

Recently, he represented the 26 states that challenged the Patient Protection and Affordable Care Act, or “Obamacare,” and Republican members of the House of Representatives defending the Defense of Marriage Act.

On June 5, Clement was entered as lead counsel for Mingo Logan Coal, though no notice of appeal was filed. He currently works at Bancroft PLLC.

The case made headlines on April 23 when the U.S. District Court of Appeals for the D.C. Circuit ruled the EPA could withdraw terms of a Clean Water Act permit already granted to the company for its work on a mountaintop removal mine in Logan County.

The EPA withdrew the permission granted to the company to use two streams as disposal sites for its Spruce Mine No. 1 site.

The decision to withdraw the specification of discharge sites after a permit was issued is unprecedented in the history of the Clean Water Act, U.S. District Judge Amy Berman Jackson wrote in March 2012.

D.C. Circuit Judge Karen L. Henderson wrote the court’s opinion.

“But again, (the Clean Water Act’s) language is plain with regard to its enumerated ‘unacceptable adverse effects’: the Administrator retains authority to withdraw a specified disposal site ‘whenever’ he determines such effects will result from discharges at the sites,” Henderson wrote.

“And when he withdraws a disposal site specification, as he did here, the disposal site’s ‘terms and conditions specified’ in the permit… are in effect amended so that discharges at the previously specified disposal sites are no longer in ‘(c)ompliance with’ the permit – although the permit itself remains otherwise in effect to the extent it is usable.”

A footnote mentions that EPA “has made clear” that a permittee will not be penalized for discharges made under a permit before the effective date of the withdrawal of any of its terms.

The permit was issued on Jan. 22, 2007, by the Army Corps of Engineers. It authorized Mingo Logan to discharge fill material from its Spruce No. 1 coal mine into nearby streams, including the Pigeonroost and Oldhouse branches and their tributaries.

Nearly three years later, the EPA published a final determination on the permit that withdrew those two streams as disposal sites.

Mingo Logan argued the attempt to modify the permit was unlawful. Jackson agreed in March 2012 and ruled in favor of Mingo Logan.

“The regulations do not explicitly address the post-permit issue, but they were published with a preamble that states that the agency has the power to withdraw a specification before, during or after the permit process,” Jackson’s ruling says.

“EPA argued that the court should find that interpretation to be reasonable because, after all, the regulations were the result of the notice and comment process.

“But that argument was not persuasive because EPA insisted at the same that other statements in the preamble – in particular, those responding to commenters’ concerns about the legality and fairness of a post-permit veto – were simply policy guidelines that did not tie its hands.

“Why would the fact that the interpretation survived notice and comment be meaningful if the agency’s specific response to those comments is not considered to be part of the interpretation?”

In overturning Jackson, the D.C. Circuit noted that the permit expressly advised that the Corps “may reevaluate its decision on the permit at any time the circumstances warrant.”

The EPA did not withdraw permission for Mingo Logan to use the Right Fork of Seng Camp Creek and its tributaries as a disposal site.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.