Energy and Environment MonitorIn January 2007, the Corps of Engineers issued a Clean Water Act §404 “fill” permit to Mingo Logan Coal Company. The permit authorized the construction of excess spoil valley fills and sediment ponds necessary to operate the Spruce No. 1 Mine in Logan County, West Virginia. Mingo Logan had pursued the permit for nearly a decade, which included substantial and lengthy scrutiny by EPA under both the Clinton and Bush administrations.
In the fall of 2009, however, the Obama administration EPA signaled that it might seek to invoke its “veto” authority under Section 404(c) of the Clean Water Act. That statute authorizes EPA to prohibit the specification of areas for the disposal of fill material. By Federal Register Notice dated April 2, 2010, EPA sought public comment on its proposal “veto” the permit. In response, on April 2, 2010, Mingo Logan sued EPA seeking a declaration that EPA had exceeded its statutory authority in initiating a “veto” for a permit issued over three years earlier. The gravamen of the Complaint is that the Clean Water Act only authorizes EPA to deny specification of a disposal area rather than to veto a permit, and that specification of a disposal area is something which occurs prior to issuance of a permit. Accordingly, Mingo Logan argues that EPA has no authority to deny specification once a permit has been issued. See Mingo Logan Coal Co., Inc. v. USEPA, Civil Action No. 1:10-cv-541 (D.C. Dist. Ct.).
On June 7, 2010, EPA filed a motion to dismiss, Mingo Logan’s lawsuit. EPA’s motion argues that its proposed “veto” is not “final agency action” subject to judicial review; that the action is not ripe for review; and that Mingo Logan has failed to exhaust available administrative remedies, such as a consultation with U.S. EPA Administrator Jackson should EPA Region III recommend that the permit be vetoed.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.
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