Rock Products

JUN 2013

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determine the second basis for Mingo Logan's challenge, whether EPA's veto was arbitrary and capricious. Legislative Solution? A legislative solution may be in the offing – a bipartisan group of sena‐ tors has reintroduced legislation, the EPA Fair Play Act (S. 830), that would prohibit EPA from vetoing CWA §404 permits already issued by the Corps. That the effort is bi‐partisan at the outset gives it some prospect of be‐ coming law. A similar measure passed the House in 2011 and was reintroduced, also on a bipartisan basis in the House, May 13, 2013, as the Clean Water Coopera‐ tive Federalism Act of 2013. Rather than prohibit EPA from vetoing an is‐ sued dredge‐and‐fill permit, the House bill would preclude EPA veto without state agreement. Rep. Nick Rahall, one of the bill's sponsors, is the ranking member of the House Transportation and Infra‐ structure Committee, where it is likely to be heard soon. The Obama Admin‐ istration threatened veto of the 2011 House measure and is expected to maintain that position if either of these bills is adopted. Negotiation of Terms In the meantime, careful negotiation of permit terms still provides the best protection. As a further ground for its decision, the D.C. Circuit cited to a provision in the Mingo Logan permit in which the Corps reserved the right to "reevaluate its decision on the permit at any time the circum‐ stances warrant" stating that "[s]uch a reevaluation may result in a deter‐ mination that it is appropriate to use the suspension, modification and rev‐ ocation procedures contained in 33 CFR 325.7." (Dep't of the Army Permit No. 199800436-3.) Thus, one possible way to avoid or minimize a Mingo Logan revocation may be careful review and negotia‐ tion of permit conditions to preclude or constrain the conditions warrant‐ ing future revocation. An audit of ex‐ isting dredge‐and‐fill permit provisions is also recommended and should be the norm in any asset ac‐ quisition context. Early engagement with EPA may mit‐ igate permit risks. For example, in Ohio Valley Envtl. Coalition, Inc. v. United States Army Corps of Eng'rs, 2013 U.S. App. LEXIS 9753, 2013 WL 1987234 (4th Cir. W. Va. 2013) the Fourth Circuit upheld the §404 per‐ mit, in part due to the Corps' inclu‐ sion of EPA‐requested permit conditions and mitigation. E Simply Reliable Always Has Been, Always Will Be Fine Material Screw Washers Sand Classifying Tanks Coarse Material Screw Washers Log Washers Portable Plants Road Based Mixers A McLanahan Company 129 East Holcomb Avenue, Des Moines, IA 50313 USA +1 (515) 243 1123 | ROCKproducts • JUNE 2013 51

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