That power was created in a legislative compromise the EPA says was intended to let the agency do its job and prevent unacceptable environmental damage. The EPA says it can invoke that authority before, during or after the corps' permitting process.
Arch, however, argues in its latest filing that EPA has no such power, and that the wording of the law makes a clear difference between authority to issue a "permit" and authority to create the "specifications" under which those permits are issued.
"The corps has power over permits, while EPA has power only over specifications," it says. The language "allows EPA only to prohibit, deny, restrict or withdraw 'specifications.'
"The absence of the word 'permit' in Section 404(c) is significant," Arch says. ".<!p>.<!p>. That alone strongly indicates that Congress did not intend through section 404(c) to give EPA any power over issued permits.
"'Specification' is not shorthand for permit. .<!p>.<!p>. 'Specify connotes no authorization to act," it argues. "'Specification' therefore is merely the act of describing a location to put dredged fill material, and it occurs either outside the permitting context altogether or as one step on the way to the issuance of the permit."
Arch argues that EPA's interpretation of the law "obliterates the choice Congress made" and says its encroachment on the corps' authority "could not be more plain."
"EPA asked the corps to use its power to modify or revoke the permit; the corps said no," the company says. "EPA nevertheless attempts to do so on its own."
The appeals court has not yet scheduled oral arguments in the case.