MORGANTOWN, W.Va. -- Arch Coal is preparing to re-argue key points in a long-running battle with the U.S. Environmental Protection Agency concerning the EPA's retroactive veto of a water pollution permit for a massive West Virginia strip mine.
The U.S. District Court of Appeals for the District of Columbia has given the EPA 15 days to file an answer to the St. Louis-based company's request for a rehearing.
In April, the appellate panel ruled the EPA had the legal authority to revoke a Clean Water Act permit in 2011, even though the U.S. Army Corps of Engineers had vetted and issued it four years earlier to Arch and its Mingo Logan Coal Co. subsidiary.
The EPA said destructive and unsustainable mountaintop removal mining practices at the Spruce No. 1 mine mountaintop removal mine in Logan County would cause irreparable environmental damage and threaten public health.
U.S. District Judge Amy Berman Jackson later ruled the agency had overstepped its authority.
Her ruling and the subsequent reversal reverberated across coal country, but a broad cross-section of industries argue it could have a nationwide chilling effect on economic development, because it removes finality from the federal permitting process.
In requesting a rehearing, Arch calls EPA's action "as audacious as it is unprecedented" and again challenged its unilateral power to nullify Clean Water Act permits issued by other agencies at any time.
"EPA's sweeping interpretation of its limited power over 'specifications' under section 404(c) of the CWA is not just breathtaking," Arch argued. "It is also -- as the district court correctly concluded -- wrong."
The appellate panel's decision essentially gives an agency with a secondary permitting role "the authority to eviscerate the final agency action of a different agency," Arch contends. "It makes no sense to allow EPA to effectively nullify a permit issued by the corps based on nothing more than the fact that EPA -- but not the corps -- has changed its mind."