Rock Products

JUN 2013

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Uncertainty In Clean Water Act Permitting Continues Does The EPA Administrator Have Final Say On Specified Disposal Sites? By Carolyn McIntosh American businesses – and the econ‐ omy as a whole – need certainty and stability to grow and foster job cre‐ ation. Yet, the United States Environ‐ mental Protection Agency (EPA) continues its efforts to modify the per‐ mitting regime under the Federal Water Pollution Control Act (Clean Water Act or CWA), 33 U.S.C. §§1251, et seq., to implement the administra‐ tions' policy to shift American energy consumption from coal to renewable energy. ingly, the Corps issued the permit. The courts have generally stymied EPA's overreaching efforts over the last year. However, Mingo Logan Coal Co. v. United States Environmental Protection Agency, D.C. Cir. (No. 12‐5150, 4/23/13), is a significant departure from that trend and destabilizes the CWA §404 dredge‐and‐fill permitting program. In Mingo Logan, the U.S. Court of Appeals for the District of Co‐ lumbia Circuit reversed a lower court decision (Mingo Logan Coal Co. v. U.S. EPA, 850 F. Supp. 2d 133 (D.D.C. 2012)) and held that EPA can veto a dredge‐and‐fill permit properly issued by the United States Army Corps of Engineers (Corps), years after the fact. Mingo Logan challenged the EPA withdrawal on two grounds: 1) that EPA lacks statutory authority to with‐ draw site specification after a permit has issued; and 2) EPA's decision to do so was arbitrary and capricious in violation of the Administrative Proce‐ dure Act ("APA"), 5 U.S.C. §§ 701, et. seq. The U.S. Dis‐ trict Court for the District of Colum‐ bia granted summary judgment on the first ground without reaching the second basis for Mingo Logan's challenge. The appeals court ruled "the [EPA] Ad‐ ministrator has, in effect, the final (em‐ phasis in original) say on the specified disposal sites 'whenever' he makes the statutorily required 'unacceptable ad‐ verse effect' determination." The Corps issued the §404 permit in January 2007, authorizing Mingo Logan to discharge mine fill material into three West Virginian streams and their tributaries. EPA expressed some concerns, but did not exercise its au‐ thority under CWA §404(c) to reject the discharge site selection. Accord‐ 50 ROCKproducts • JUNE 2013 In 2009, EPA asked the Corps to sus‐ pend, revoke or withdraw the permit under 33 CFR 325.7. The Corps de‐ clined. Four years after permit is‐ suance, EPA found problems with the permit's authorization of two of the streams designated as disposal sites and invoked its subsection 404(c) au‐ thority to "withdraw" the specifica‐ tions for these two streams as disposal sites. EPA Appeal The EPA appeal was heard by a three‐ judge panel and the opinion was ren‐ dered by Circuit Judge Karen LeCraft Henderson. In the Court of Appeals' de novo review of the lower court's grant of summary judgment, the D.C. Circuit applied Chevron deference (Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984)), but only engaged in step 1 of that analysis, finding that the relevant provision of the CWA, §404(c), is unambiguous. The D.C. Circuit acknowledged that CWA §404 vests the Corps – not EPA – with the authority to issue dredge‐ and‐fill permits and to specify the dis‐ posal sites therefor. Carolyn McIntosh, a partner with Patton Boggs, counsels clients on complex environmental-compliance matters, and environmental and natural-resources litigation. In addition to her environmental litigation and regulatory work, she counsels a variety of companies in area of renewable energy and clean technology. 303-894-6127, Nonetheless, the Court adopted EPA's argument that "Congress granted EPA a broad environmental backstop au‐ thority over the Secretary's discharge site selection in subsection 404(c)." Relying heavily on Congress's use of the term "whenever" in §404(c), the Court found that there is no temporal limitation on EPA's authority to veto selection of a disposal location. The Court supported this analysis, again adopting EPA's argument, by finding that "withdrawal" also suggests EPA may exercise its authority post‐permit issuance. Further, the Court expressly rejected Mingo Logan's argument that "EPA's interpretation conflicts with section 404 'as a whole'" by Congress's grant of permitting authority to the Corps and inclusion of the "permit shield" provision in §404(p). The case has been remanded to the district court to

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