National Mining Association Files Suit Against EPA and the Corps Regarding “Moving Targets” in Permitting Process

On Tuesday, June 20^th, the National Mining Association (“NMA”) filed an action for declaratory and injunctive relief in the US District Court for the District of Columbia against EPA, the Corps of Engineers, and agency leaders in their official capacity relating to EPA’s June 11, 2009 Enhanced Coordination Process (“EC Process”) Memoranda, the September 11, 2009 Multi-Criteria Integrated Resource Assessment (the “MCIR Assessment”) and the April 1, 2010 Detailed Guidance Memorandum (“Detailed Guidance”). In its complaint, NMA requests that the court nullify these documents and order the Corps to adhere to the codified Section 404 permit process. NMA also requests the court to order EPA not to exceed the role Congress crafted for it regarding Section 404 permits.  

All three documents at issue represent EPA’s recent quest to establish heightened standards for reviewing Appalachian mining permits. Generally, NMA argues in its complaint that EPA abused its discretion and its actions are arbitrary and capricious and that EPA has misconstrued provisions in the statute providing EPA with veto ability in limited circumstances to give EPA power to withdraw a Section 404 permit. The defendants have 60 days to file an answer to a complaint, and the full text of NMA’s complaint can be found at:

 http://nma.org/pdf/tmp/072010_NMA_Complaint_ECP_Guidance.pdf.

Briefly, in each of the counts of the Complaint, NMA argues that:

 

Counts 1-3:   the EC Process, MCIR Assessment, and the Detailed Guidance are invalid because each affect the discretion of the agencies in a binding way, and therefore, EPA should have followed the notice-and-comment requirements of the Administrative Procedures Act. 

Counts 4-5:   EPA has usurped permit review authority expressly delegated to the Corps through the CWA and codified regulations.

Count 6:    in regards to mitigation issues, the Detailed Guidance expressly conflicts with the codified regulations and existing guidance in same. NMA also argues EPA has usurped authority granted to the states in the CWA by enforcing federal water quality standards when states have the authority to develop those standards.

Count 7:    the federal water quality standards are arbitrary and capricious in that they are based upon unlawful presumptions developed from scientific literature that has not been peer reviewed.

Count 8:    the Detailed Guidance violates NEPA because it allows EPA to decide for the Corps what may be a “significant impact” requiring preparation of an EIS, when EPA’s only authorized role under NEPA is to comment and review the EIS for sufficiency. 

Count 9:    EPA violated SMCRA by invading the authority Congress granted to OSM and primacy states.

Counts 10-11:   generally, EPA’s recent actions are arbitrary, capricious, and an abuse of discretion, as well as ultra vires.   

 

This article was co-authored by Kevin McGuire and Mary Beth Naumann, Jackson Kelly PLLC. For more information on the authors see (McGuire) here and (Naumann) here.