EPA tells D.C. Circuit to let permit decision stand

WASHINGTON – The Environmental Protection Agency is again defending its decision to revoke a Clean Water Act permit at a mountaintop removal mine.

The EPA on June 27 filed a response to Mingo Logan Coal Company’s latest filing with the U.S. Court of Appeals for the D.C. Circuit. The company is fighting a decision made by the EPA in 2011 to revoke provisions of a CWA permit that allowed the company to use two streams as disposal sites at the Spruce Mine No. 1 site in Logan County.

A three-judge panel of the D.C. Circuit ruled against Mingo Logan in April. The company has asked for a rehearing before the entire roster of Fourth Circuit judges, known as rehearing en banc.

“The panel’s straightforward reading of the Clean Water Act’s plain language does not merit rehearing en banc,” the EPA’s response says.

“Mingo Logan does not allege that the panel decision conflicts with a decision of the Supreme Court, this Court, or any other court.

“Nor does this case present a legal question of exceptional important. The panel considered and properly rejected Mingo Logan’s arguments, which cannot be squared with the statutory text.”

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

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 before being overruled by the D.C. Circuit.

The EPA says the D.C. Circuit should let the panel’s opinion stand.

“Congress struck a balance in Section 404 of the Clean Water Act between the respective authorities of the Corps and EPA, and the two agencies’ shared interpretation of Section 404(c) maintains that balance after a permit issues,” the EPA wrote.

“The plain language of the statute compels that interpretation, as the panel held, but even if that language were ambiguous, EPA’s longstanding interpretation would still be reasonable and permissible. Mingo Logan’s old and new arguments to the contrary are unpersuasive.”

On June 7, Mingo Logan filed its petition for the rehearing.

“The authority asserted by the Environmental Protection agency in this case is as audacious as it is unprecedented,” the petition says.

“EPA claims nothing less than a unilateral power to nullify, at any time, a Clean Water Act permit issued years ago by a different agency, even though the permitting agency has found that EPA’s concerns present no new information and were addressed in the permit when it was issued.

“EPA’s sweeping interpretation of its limited power over ‘specifications’ under section 404(c) of the CWA is not just breathtaking. It is also – as the District Court correctly concluded – wrong.”

No matter the ruling on the petition, the case is likely headed for the U.S. Supreme Court. Mingo Logan, which is owned by Arch Coal, hired former Solicitor General Paul Clement to represent it in the case on June 5.

Clement was solicitor general – the office that represents the federal government in issues before the U.S. Supreme Court – from 2004-08. He is routinely hired by litigants with cases at the U.S. Supreme Court.

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.

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