IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
MINGO LOGAN COAL COMPANY, INC. )
)
Plaintiff, )
)
v. ) Case No. 1:10-cv-00541-ABJ
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY )
)
Defendant. )
)
REPLY STATEMENT OF POINTS AND AUTHORITIES IN
SUPPORT OF MINGO LOGAN’S
MOTION FOR SUMMARY JUDGMENT
AND
RESPONSE TO EPA’S MOTION FOR SUMMARY JUDGMENT
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 1 of 39
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................................................... ii
PRELIMINARY STATEMENT................................................................................................. 1
ARGUMENT ............................................................................................................................. 2
I. Section 404(c) Does Not Allow EPA to Modify an Issued Permit. .................................. 2
A. EPA Ignores Congress’s Choice of Words and the Act as a Whole. ..................... 2
1. Specification of a Disposal Site Occurs Before a Permit Is Issued. ........... 3
2. Disposal Sites Existed at the Time the CWA Was Passed......................... 5
3. EPA Fails to Interpret § 404(c) in Reference to the Entire Statute. ........... 7
B. Dicta Cited by EPA Does Not Control Here. ..................................................... 10
C. The Legislative History Confirms Mingo Logan’s Reading. .............................. 10
D. EPA’s Interpretation Is Not Entitled to Deference.............................................. 11
II. EPA Usurps West Virginia’s Authority Under §§ 303, 401 and 402.............................. 14
A. Downstream Effects Are Regulated by § 402, Not § 404. .................................. 14
B. EPA Fails to Demonstrate That “Downstream Effects” Are the Result of §
404 Discharges. ................................................................................................. 18
C. EPA Cannot Use § 404(c) to Supplant State Water Quality Standards. .............. 20
III. EPA Has Not Explained How Substantial New Information Establishes That the
§ 404 Discharges Will Now Have an Unacceptable Adverse Effect on Wildlife. ........... 22
IV. EPA Failed to Take Into Account the Permit’s Mitigation Conditions. .......................... 26
A. EPA Cannot Ignore Mitigation. ......................................................................... 26
B. EPA Acted Arbitrarily and Capriciously in Failing to Account for the
Permit’s Mitigation Conditions.......................................................................... 27
V. EPA’s Discussion of the Guidelines Reveals a Flaw Endemic to Its Entire
Analysis. ....................................................................................................................... 30
CONCLUSION ........................................................................................................................ 30
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 2 of 39
ii
TABLE OF AUTHORITIES
FEDERAL CASES
Alameda Water & Sanitation Dist. v. Reilly, 930 F. Supp. 486 (D. Colo. 1996)......................... 27
Am. Fed’n of Gov’t Employees, Local 2782 v. Fed. Labor Relations Auth., 803
F.2d 737 (D.C. Cir. 1986) ............................................................................................... 7
Bersani v. U.S. EPA, 850 F.2d 36 (2d Cir. 1988) ...................................................................... 30
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988).......................................................... 29
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ......................................................................... 11
City of Alma v. United States, 744 F. Supp. 1546 (S.D. Ga. 1990)............................................. 10
*Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129 S. Ct. 2458
(2009) ...................................................................................................... 1, 15, 16, 18, 22
Creppel v. U.S. Army Corps of Eng’rs, Civ. A. No. 77-25, 1988 WL 70103 (E.D.
La. June 29, 1988)......................................................................................................... 11
Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51 (1984)............................. 28
Hoosier Envtl. Council, Inc. v. U.S. Army Corps of Eng’rs, 105 F. Supp. 2d 953
(S.D. Ind. 2000) ............................................................................................................ 10
Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) ..................................................................... 17
James City Cnty. v. EPA, 12 F.3d 1330 (4th Cir. 1993)........................................................10, 21
James City Cnty. v. EPA, 955 F.2d 254 (4th Cir. 1992)........................................................11, 30
*Nat’l Ass’n of Mfrs. v. U.S. Dep’t of the Interior, 134 F.3d 1095 (D.C. Cir. 1998) .......1, 8, 9, 13
Nat’l Ass’n of Recycling Indus., Inc. v. Interstate Commerce Comm’n, 660 F.2d
795 (D.C. Cir. 1981) ................................................................................................. 7, 17
New Hampshire v. Maine, 532 U.S. 742 (2001) ....................................................................... 28
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008)............................................................... 7
*Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 190 (4th Cir.
2009), cert. dismissed 131 S. Ct. 51 (2010) ................................................................... 19
Rapaport v. U.S. Dep’t of the Treasury, 59 F.3d 212 (D.C. Cir. 1995) ...................................... 12
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 3 of 39
iii
Russo Dev. Corp. v. Reilly, No. 87-3916, 1990 U.S. Dist. LEXIS 15859 (D.N.J.
Mar. 16, 1990) .............................................................................................................. 10
*Salleh v. Christopher, 85 F.3d 689 (D.C. Cir. 1996) ..........................................................12, 13
United States v. Heirs of Boisdoré, 49 (8 How.) U.S. 113 (1850)................................................ 7
United States v. Owens, 54 F.3d 271 (6th Cir. 1995)................................................................. 28
Vitarelli v. Seaton, 359 U.S. 535 (1959).................................................................................... 29
FEDERAL STATUTES
5 U.S.C. § 551(4) ..................................................................................................................... 29
22 U.S.C. § 4010(a), FSA § 610(a) ........................................................................................... 13
22 U.S.C. § 4010(a)(1), FSA § 610(a)(1) .............................................................................12, 13
22 U.S.C. § 4010(a)(2), FSA § 610(a)(2) .............................................................................12, 13
30 U.S.C. §§ 1201, et seq. ........................................................................................................ 19
33 U.S.C. § 1313, CWA § 303.............................................................................................17, 18
33 U.S.C. § 1313(c), CWA § 303(c) ......................................................................................... 22
33 U.S.C. § 1319, CWA § 309.................................................................................................... 8
33 U.S.C. § 1319(a), CWA § 309(a) ........................................................................................... 8
33 U.S.C. § 1319(a)(3), CWA § 309(a)(3) .................................................................................. 8
33 U.S.C. § 1341(b), CWA § 401(b)....................................................................................20, 21
33 U.S.C. § 1341(c), CWA § 401(c) ....................................................................................... 5, 6
33 U.S.C. § 1342, CWA § 402.................................................. 1, 8, 10, 14, 15, 16, 17, 18, 19, 20
33 U.S.C. § 1342(a)(1), CWA § 402(a)(1) ................................................................................ 15
33 U.S.C. § 1342(b)(1)(C), CWA § 402(b)(1)(C) ....................................................................... 8
33 U.S.C. § 1342(k), CWA § 402(k)......................................................................................... 16
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 4 of 39
iv
33 U.S.C. § 1344, CWA § 404....................... 1, 2, 4, 6, 7, 8, 11, 14, 15, 16, 17, 18, 19, 22, 26, 28
33 U.S.C. § 1344(a), CWA § 404(a) ............................................................................3, 4, 12, 13
33 U.S.C. § 1344(b), CWA § 404(b)............................................................................3, 4, 12, 13
33 U.S.C. § 1344(b)(1), CWA § 404(b)(1)............................................4, 5, 13, 17, 18, 19, 23, 30
33 U.S.C. § 1344(c), CWA § 404(c) .................................... 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
................................................................ 14, 16, 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 30
33 U.S.C. § 1344(e), CWA § 404(e) ......................................................................................... 10
33 U.S.C. § 1344(h)(1)(A)(iii), CWA § 404(h)(1)(A)(iii) ........................................................... 8
33 U.S.C. § 1344(n), CWA § 404(n)........................................................................................... 8
33 U.S.C. § 1344(p), CWA § 404(p)....................................................................................1, 8, 9
33 U.S.C. § 1344(q), CWA § 404(q)................................................................................1, 5, 8, 9
33 U.S.C. § 1344(s), CWA § 404(s)...................................................................................... 8, 13
FEDERAL REGULATIONS & ADMINISTRATIVE MATERIALS
33 C.F.R. pt. 205 (1972) ............................................................................................................. 6
33 C.F.R. § 205.10 (1972) .......................................................................................................... 6
33 C.F.R. § 323.6(a) ................................................................................................................... 4
33 C.F.R. § 323.6(b)................................................................................................................... 5
33 C.F.R. § 325.1(d)(4) .............................................................................................................. 4
33 C.F.R. § 325.2(a)(6)............................................................................................................... 4
33 C.F.R. § 325.3(a)(4)............................................................................................................... 4
33 C.F.R. § 325.3(a)(6)............................................................................................................... 4
40 C.F.R. § 122.4(b)................................................................................................................. 18
40 C.F.R. § 122.4(d)................................................................................................................. 20
40 C.F.R. § 123.25(a)(1)........................................................................................................... 20
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 5 of 39
v
40 C.F.R. § 230.10(a) ........................................................................................................... 5, 30
40 C.F.R. § 230.10(d) ............................................................................................................... 27
40 C.F.R. § 230.11(h) ..........................................................................................................16, 19
40 C.F.R. § 230.11(h)(1) .....................................................................................................16, 19
40 C.F.R. § 230.50 ................................................................................................................... 19
40 C.F.R. § 231.2(e) ............................................................................................................26, 27
44 Fed. Reg. 58,076 (Oct. 9, 1979) ......................................................................................11, 22
46 Fed. Reg. 10,203 (Feb. 2, 1981)........................................................................................... 12
49 Fed. Reg. 39,478 (Oct. 5, 1984) ............................................................................................. 4
73 Fed. Reg. 19,594 (Apr. 10, 2008)....................................................................................28, 29
MISCELLANEOUS
Admin. Auth. to Construe § 404 of the Fed. Water Pollution Control Act, 43 Op.
Att’y Gen. 197 (1979)................................................................................................... 11
CH2M Hill, Technical Evaluation Document: Spruce No. 1 Mine, West Virginia
(June 2010) ..............................................................................................................24, 25
Clean Water Act Section 404(q) Memorandum of Agreement Between the
Environmental Protection Agency and the Department of the Army (Aug.
11, 1992), available at http://www.epa.gov/wetlands/regs/dispmoa.html..............5, 26, 27
EPA Press Release, EPA Proposes Veto of Mine Permit Under the Clean Water
Act (Mar. 26, 2010), available at http://www.epa.gov/newsroom.................................. 12
H.R. Rep. No. 92-911, 92d Cong. 2d Sess. (Mar. 11, 1972), reprinted in 1 A
LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT
AMENDMENTS OF 1972 at 810-11 (Jan. 1973) ............................................................... 21
Memorandum of Agreement Between the Environmental Protection Agency and
the Department of the Army Concerning the Determination of Mitigation
Under the Clean Water Act 404(b)(1) Guidelines (Feb. 6, 1990), available
at http://water.epa.gov/lawsregs/guidance/wetlands/ mitigate.cfm................................. 23
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 6 of 39
vi
Senate Consideration of the Report of the Conference Committee (Oct. 4, 1972),
reprinted in 1 A LEGISLATIVE HISTORY OF THE WATER POLLUTION
CONTROL ACT AMENDMENTS OF 1972 at 161-339 (Jan. 1973) ........................................ 4
Senate Debate on S. 2770 (Nov. 2, 1971), reprinted in 2 A LEGISLATIVE HISTORY
OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at
1386 (Jan. 1973) ............................................................................................................. 6
WEBSTER’S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE (2d College
Ed. 1986) .................................................................................................................. 3, 26
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 7 of 39
1
PRELIMINARY STATEMENT
Section 404(c) must be read in harmony with the Clean Water Act (“CWA” or “Act”) as
a whole. But at every turn, EPA reads it in isolation to assert boundless authority that would
abrogate or undermine other provisions of the Act. Instead of honoring Congress’s decision to
direct EPA’s § 404(c) power to “specifications,” EPA ignores the absence of the word “permit”
in § 404(c) to wrest substantial § 404 permitting authority from the Corps, creating untenable
interagency conflict and effectively nullifying CWA §§ 404(p) and 404(q). Instead of honoring
the distinction between the § 402 and § 404 permitting systems that the Supreme Court
emphasized in Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129 S. Ct. 2458 (2009),
EPA creates chaos and uncertainty by subjecting the same discharges to both programs. And
instead of adhering to the CWA’s cooperative federalism policy, which Congress implemented
by authorizing the States to promulgate and implement water quality standards, EPA claims the
authority to disregard Mingo Logan’s compliance with State water quality standards and to make
up and apply its own standards to countermand the State’s water quality and permitting
decisions.
This is not how statutes should be interpreted. Interpretations that “essentially deprive[]
one provision of its meaning and effect so that another provision can be read as broadly as its
language will permit, [are] inconsistent with the Congress’s intent . . . .” Nat’l Ass’n of Mfrs. v.
U.S. Dep’t of the Interior, 134 F.3d 1095, 1107 (D.C. Cir. 1998). Mingo Logan’s interpretation
of § 404(c) is consonant with the broader CWA. EPA’s is not and should be rejected.1
1 EPA’s Brief makes myriad tangential arguments that are wrong. Page limits and
discretion preclude Mingo Logan’s response to all of them. But Mingo Logan’s lack of response
to every point does not indicate its assent.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 8 of 39
2
ARGUMENT
I. Section 404(c) Does Not Allow EPA to Modify an Issued Permit.
By its plain terms, § 404(c) gives EPA no power over permits. It refers only to
“specifications” (i.e., “specified disposal sites”), which differ from “permits.” The Corps
specifies disposal sites during the permit process before the permit issues. Once the Corps issues
a permit, there is no longer a “specification” of a disposal site, but rather a permit that authorizes
the discharge of fill material at a defined location. That permit is the law as to the discharges it
authorizes. Indeed, the requirement to obtain permits that authorize discharges subject to
project-specific conditions is the central innovation of the CWA. Congress would not implicitly
— and through a parenthetical phrase no less — grant EPA the extraordinary power to remove
the core authorization granted by a § 404 permit without using the word “permit.” Once the
Corps issues a permit, EPA cannot use § 404(c) to revoke the permit’s discharge authorization.
EPA raises four sets of arguments in response. First, EPA argues that the phrase,
“withdrawal of specification,” which appears in two parenthetical phrases, must mean that EPA
can modify issued permits. Second, EPA argues that dicta in three district court cases suggests
that the question presented here has been decided. Third, EPA tries to diminish legislative
history that confirms Congress’s intent that EPA would act under § 404(c) before any permit
issues. And finally, EPA seeks refuge in Chevron deference. EPA is wrong across the board.
A. EPA Ignores Congress’s Choice of Words and the Act as a Whole.
EPA attempts to rewrite § 404(c). “Specification” is not shorthand for “permit.” As
Mingo Logan has explained, “specification” is merely the act of describing a location to put
dredged or fill material. It occurs either outside the permitting context altogether or as one step
on the way to the issuance of a permit. Statement of Points & Authorities in Supp. of Mingo
Logan’s Mot. for Summ. J. at 11, 23-25 (May 27, 2011) (ECF No. 26) (“ML Br.” or “Opening
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 9 of 39
3
Brief”). EPA concedes, as it must, that “specification” means something different than “permit,”
and that the Corps specifies disposal sites in contexts that do not involve permits at all. See
EPA’s Mem. in Supp. of Its Mot. for Summ. J. & in Opp’n to Pl.’s Mot. for Summ. J. at 18-19
(July 25, 2011) (ECF No. 46) (“EPA Br.”). Thus, the phrase “withdrawal of specification” has
meaning and effect without the need for it to apply in the permit process. EPA argues
nonetheless that “withdrawal of specification” must apply in the permit context and give it the
power to modify a permit because in the context of permitting, specification only occurs upon
the issuance of a permit, and thus there is nothing to “withdraw” until a permit issues. In other
words, EPA claims that the absence of any reference to permits in § 404(c) means nothing
because, in the permitting context, permits and specifications are the same thing.
1. Specification of a Disposal Site Occurs Before a Permit Is Issued.
Citing §§ 404(a) and (b), EPA baldly asserts that “the plain text of Section 404 makes it
clear that the Corps (in the context of an individual permit) specifies a disposal site through the
issuance of the permit itself.” EPA Br. at 17. But §§ 404(a) and (b) don’t say that. Section
404(a) states: “The [Corps] may issue permits, after notice and opportunity for public hearings
for the discharge of dredged or fill material into the navigable waters at specified disposal sites,”
and § 404(b) states that “each such disposal site shall be specified for each such permit.” 33
U.S.C. § 1344(a)-(b) (emphases added). By its plain meaning, “specify” means simply “to
mention, describe, or define in detail.” WEBSTER’S NEW WORLD DICTIONARY OF THE AMERICAN
LANGUAGE 1367 (2d College Ed. 1986). Unlike “permit,” which means “to allow; consent to,”
Id. at 1060, “specify” does not contemplate authorization to act. Had Congress meant to conflate
the description of the site to be authorized as a disposal area with the actual authorization to
discharge, Congress would not have said in § 404(b) that “each such disposal site shall be
specified for each such permit” (emphasis added) — it would have said “in,” “through” or “by.”
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 10 of 39
4
Moreover, the structure of §§ 404(a)-(b) contemplates that disposal sites are specified
during the permit process, not “through the issuance of the permit” as EPA claims (emphasis
added). EPA Br. at 17. Section 404(a) requires notice and opportunity for public comment
before a permit can issue, and for the opportunity for comment to be meaningful, the notice must
describe in detail the disposal site. See 33 C.F.R. § 325.3(a)(4) and (6) (requiring public notice
to describe the location of the activity and a “plan and elevation drawing showing the general
and specific site location and character of all proposed activities”).2 Section 404(b) requires that
disposal sites be specified “though the application of [the § 404(b)(1)] guidelines,” and the
Corps’s regulations require that the Corps apply the 404(b)(1) Guidelines (or “Guidelines”)
before it can issue a permit. “[N]o 404 permit can be issued unless compliance with the
404(b)(1) guidelines is demonstrated (i.e., compliance is a prerequisite to issuance).” 49 Fed.
Reg. 39,478, 39,479 (Oct. 5, 1984); see also 33 C.F.R. § 323.6(a) (stating that the Corps cannot
issue a permit unless it first “determines that the proposed discharge would comply with the
404(b)(1) guidelines”). As a final step in the permit process and “prior to final action on the
application,” the Corps must prepare a Statement of Findings, which sets forth the Corps’s
determination of compliance (or not) with the 404(b)(1) Guidelines. 33 C.F.R. § 325.2(a)(6).
Thus, specification and application of the Guidelines necessarily precede permit issuance.3
2 The regulations lay out a process similar to that described by Senator Muskie’s
explanation that EPA’s consideration under § 404(c) “is not duplicative or cumbersome because
the permit application transmitted to the Administrator for review will set forth both the site to be
used and the content of the matter of the spoil to be disposed.” Senate Consideration of the
Report of the Conference Committee (Oct. 4, 1972), reprinted in 1 A LEGISLATIVE HISTORY OF
THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972 at 161,177 (Jan. 1973)
(“LEGISLATIVE HISTORY 1972”).
3 Indeed, a key goal of the § 404 permitting process is to identify “the least
environmentally damaging practicable alternative” (“LEDPA”) location for the discharge of
dredged and fill material. Toward that end, the application and the public notice are both
required to identify proposed disposal site locations. 33 C.F.R. § 325.1(d)(4), 325.3(a)(6), and
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 11 of 39
5
One example of a pre-permit process that gives EPA multiple opportunities to review
(and “withdraw”) Corps-specified disposal sites is the EPA-Corps Memorandum of Agreement
required by § 404(q). Clean Water Act Section 404(q) Memorandum of Agreement Between the
EPA and the Dep’t of the Army (Aug. 11, 1992) (“404(q) MOA”), available at
http://www.epa.gov/wetlands/regs/dispmoa.html. The 404(q) MOA lays out an extensive
coordination process during which EPA can review the Corps’s Statement of Findings/Record of
Decision (including the Corps’s 404(b)(1) Guidelines analysis) prepared in support of the permit.
If EPA remains concerned, it can either request elevation of its concerns, 404(q) MOA at Part IV
¶¶ 3(d), (f), or initiate § 404(c) proceedings. Tellingly, the Corps regulations governing the final
steps in the permitting process describe EPA 404(c) action at this stage as providing notice of an
intent to “prohibit or withdraw the specification.” See 33 C.F.R. § 323.6(b) (emphasis added).
If EPA takes this step, the Corps holds the proposed permit decision in abeyance. Id.; 404(q)
MOA at Part IV ¶¶ 3(d)-(e). Thus, contrary to EPA’s claim here, there is a specification to be
“withdrawn” before the permit has been issued.
Specification does not occur “through” permit issuance, as EPA would have it, but rather
as part of the permit process, and EPA has multiple opportunities to “withdraw” that
specification before any permit actually issues.
2. Disposal Sites Existed at the Time the CWA Was Passed.
As Mingo Logan has explained, the law in place when Congress passed the CWA in
1972 sheds additional light on Congress’s intent behind the two parenthetical phrases in §
404(c). ML Br. at 23-24. Congress was aware in 1972 that the Corps specified sites for the
disposal of dredged material as part of its civil works activities, and in § 401(c), Congress
the Corps is required by the 404(b)(1) Guidelines to conduct a rigorous analysis of alternative
locations in order to identify the LEDPA. 40 C.F.R. § 230.10(a).
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 12 of 39
6
specifically allowed areas that had already been designated to continue to be used as disposal
sites going forward. See 33 U.S.C. § 1341(c) (authorizing the Corps to “permit the use of spoil
disposal areas under [its] jurisdiction by Federal licensees or permittees.”). But the existence of
these sites created a potential gap in § 404(c)’s coverage because those specifications could no
longer be “prohibited” or “denied.” By noting parenthetically that the power to “prohibit” the
specification of certain disposal sites included the power to “withdraw[ ] specification,”
Congress closed that gap. It made clear that EPA going forward could withdraw those areas
specified as disposal sites, including sites that had been designated before § 404(c) was enacted.
In response, EPA argues first that the Corps’s pre-existing disposal areas are not
“specified disposal sites” because § 401(c) describes these sites as “spoil disposal areas.” EPA
Br. at 19. But this is no distinction at all. The “spoil” that can be discharged in these areas is
“dredged and fill material.” See, e.g., 33 C.F.R. § 205.10 (1972) (describing material that could
be discharged into specified disposal areas). And the legislative history refutes EPA’s attempted
distinction. When introducing what would become § 404, Sen. Ellender explained that the
“specified disposal sites” included “open water disposal areas” and “dyked disposal areas” that
the Corps already was maintaining. Senate Debate on S. 2770 (Nov. 2, 1971), reprinted in 2
LEGISLATIVE HISTORY at 1386; see ML Br. at 24 n.17. The areas referenced by Sen. Ellender are
the spoil disposal areas maintained by the Corps and mentioned in CWA § 401. See 33 C.F.R.
pt. 205 (1972); 33 U.S.C. § 1341(c). Equally important, EPA has conceded that § 404(c) applies
to disposal sites specified outside the permitting process, such as those pre-dating § 404’s
permitting program. See EPA’s Mot. to Dismiss Reply Br. at 21 (July 6, 2010) (ECF No. 11).
EPA next argues that Mingo Logan’s reading would give the word “specification” two
distinct meanings within § 404(c). Not so. “Specification” means the same thing throughout
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 13 of 39
7
§ 404(c) — i.e., the “definition in detail” of a site that could be authorized as a disposal area for
the discharge of dredged and fill material. But, contrary to EPA’s argument, “specification”
does not mean “permit.” Once the permit issues, there is no longer a “specification,” there is a
permit with terms and conditions, and § 404(c) does not authorize EPA to withdraw that permit.
EPA’s argument also wrongly assumes that “withdrawn” must have meaning in the
permitting context. While all statutory language must have some meaning, each word need not
apply to every conceivable application of the statute. It suffices that, as EPA has previously
conceded, “withdraw” has meaning with respect to disposal sites that pre-existed § 404(c)’s
enactment or otherwise exist outside the 404 permitting context.
3. EPA Fails to Interpret § 404(c) in Reference to the Entire Statute.
Each time EPA’s argument conflicts with other provisions of the CWA, EPA blithely
observes that the text of § 404(c) itself does not constrain EPA’s power to act. See, e.g., EPA Br.
at 25-26 (“Congress imposed no time limitation on EPA’s exercise of its Section 404(c) authority
. . . [so] Section 404(c) gives EPA broad authority to decide when to act . . . .”). But EPA cannot
simply infer authority from Congressional silence. Nor can it turn a blind eye to the rest of the
statute. “Lest EPA forget, it is a creature of statute, and has only those authorities conferred
upon it by Congress; if there is no statute conferring authority, a federal agency has none.”
North Carolina v. EPA, 531 F.3d 896, 922 (D.C. Cir. 2008) (internal quotations omitted).
A single statutory provision must be interpreted in light of the statute as a whole.4 Yet
4 United States v. Heirs of Boisdoré, 49 (8 How.) U.S. 113, 122 (1850) (“In expounding a
statute, we must not be guided by a single sentence or member of a sentence, but look to the
provisions of the whole law, and to its object and policy.”); see also Am. Fed’n of Gov’t
Employees, Local 2782 v. Fed. Labor Relations Auth., 803 F.2d 737, 740 (D.C. Cir. 1986)
(“[S]tatutes or regulations are to be read as a whole, with each part or section ... construed in
connection with every other part or section.” (internal quotations omitted)); Nat’l Ass’n of
Recycling Indus., Inc. v. Interstate Commerce Comm’n, 660 F.2d 795, 799 (D.C. Cir. 1981)
(rejecting statutory interpretation that “ignores the requirement that every statute must be viewed
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 14 of 39
8
EPA’s reading of § 404(c) runs roughshod over key structural and textual features of the CWA.
At the most fundamental level, EPA’s reading obliterates the choice Congress made to give the
permitting authority with all of its attributes to the Corps, not EPA. See ML Br. at 15-18. Rather
than effect Congress’s compromise that gives the Corps overall responsibility over the permitting
program while giving EPA a significant but carefully prescribed role in the pre-permit evaluation
of alternative disposal sites, EPA would arrogate to itself one of the key powers belonging to a
permitting authority — the power to modify or revoke a permit.5 EPA’s encroachment on the
Corps’s prerogative could not be more plain. EPA asked the Corps to modify or revoke the
Permit; the Corps said no; EPA nevertheless is attempting to do so on its own.
EPA’s interpretation also tramples on provisions like §§ 404(q) and 404(p) that are
intended to give permits certainty and finality. See ML Br. at 18-21. EPA’s boundless reading
renders illusory the finality that the § 404(q) process is meant to achieve, and it destroys the
certainty that provisions like § 404(p) are intended to provide permit holders.
EPA glosses over these problems in its Brief. As for § 404(q), EPA points to the absence
in its entirety so that each part has a sensible and intelligent effect harmonious with the whole”);
Nat’l Ass’n of Mfrs., 134 F.3d at 1107 (“[A]n interpretation [that] essentially deprives one
provision of its meaning and effect so that another provision can be read as broadly as its
language will permit, is inconsistent with the Congress’s intent . . . .”).
5 EPA argues that both EPA and the Corps can enforce violations of § 404 permits, EPA
Br. at 22-23, but it neglects to mention that its authority is limited to § 404 permits issued “by a
State.” 33 U.S.C. § 1319(a)(3). In 1977, Congress enacted § 404(s) to give the Corps authority
for enforcement against violators of § 404 permits issued by the Corps and amended § 309 to
give EPA enforcement authority over § 404 permits issued by a State. Id. § 1319(a). At the same
time, Congress enacted § 404(n), which preserved EPA’s authority under § 309 to take
enforcement action for discharges of dredged and fill material without a permit. EPA’s
argument that § 404(n) “preserves” enforcement authority over Corps-issued permits cannot be
reconciled with the plain language of §§ 309 and 404(s). Indeed, Congress fully recognized that
the power to issue permits must carry with it the power to modify or terminate those permits.
For this reason, it required a State seeking permitting authority under either § 402 or § 404 to
demonstrate that it had authority to terminate or modify the permit. 33 U.S.C. § 1342(b)(1)(C),
1344(h)(1)(A)(iii).
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 15 of 39
9
of any time limitation in the text of § 404(c). EPA Br. at 25-26. But this ignores Congress’s
goal of timely resolution of disagreements among regulatory agencies before permit issuance and
§ 404(q)’s explicit direction that permit “decision[s] . . will be made not later than” 90 days after
public notice. If EPA can opt not to invoke these procedures, as it opted here, and then voice
wholesale disagreements years after permit issuance, Congress’s objective would be thwarted
completely. Section 404(q) cannot be deprived of its meaning so that § 404(c) can be interpreted
“as broadly as its language will permit.” Nat’l Ass’n of Mfrs., 134 F.3d at 1107-08.
As to the pervasive uncertainty that EPA inflicts on § 404 permits, EPA similarly misses
the point. EPA indisputably reads § 404(c) to authorize it to modify a permit in circumstances
where the Corps’s regulations would not. See EPA Br. at 17 n.13. But EPA ignores this patent
conflict. Instead, EPA constructs a straw man by suggesting that Mingo Logan has argued that
§ 404(p) prohibits EPA’s action under § 404(c). That is not Mingo Logan’s point. Section
404(p) shows Congress’s expectation that compliant permit holders should be able to rely on the
terms of their permit. EPA’s reading of § 404(c) puts compliant permit holders forever in
apprehension that a change of wind at EPA will wipe out the investments the permit holder has
made in reliance on the permit. That result is anathema to the system Congress intended. That
§ 404(p) does not mention § 404(c) does not indicate Congress’s intent that EPA can use
§ 404(c) to abrogate permit certainty granted in § 404(p). If anything, by not mentioning
§ 404(c) in § 404(p) Congress indicated that it never intended for EPA to invoke § 404(c) to
modify or revoke existing permits.6
6 EPA also argues that Mingo Logan’s reading cannot be right because if EPA can only
act on a specification before a permit has been issued, then EPA’s § 404(c) authority would not
apply to nationwide permits. EPA Br. at 18 n.14. But nationwide permits involve no
“specifications of disposal site.” Rather, they authorize discharges for categories of activities
that will cause only “minimal adverse environmental effects” either individually or cumulatively.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 16 of 39
10
B. Dicta Cited by EPA Does Not Control Here.
EPA wrongly states that three courts have “consider[ed] specifically whether Section
404(c) authorizes EPA to act after issuance of a Corps permit.” EPA Br. at 14-16. As Mingo
Logan explained in its Opening Brief, none of those cases involved an attempt by EPA to modify
an existing permit.7
C. The Legislative History Confirms Mingo Logan’s Reading.
EPA’s discussion of the exhaustive legislative history is notable for what it lacks. EPA
has identified nothing that suggests Congress intended to give EPA the extraordinary power to
modify § 404 permits issued by the Corps. If Congress so intended, one would expect to see
some mention of it in the legislative history, especially given Congress’s careful consideration of
the respective roles of the Corps and EPA, and its decision to confer § 404 permitting authority
on the Corps rather than EPA. In contrast, as Mingo Logan has explained, Senator Muskie’s
presentation of the final version of the legislation — the most direct and relevant discussion of
EPA’s power under § 404(c) — shows that Congress expected EPA to act expeditiously under §
404(c) before a permit issues. See ML Br. at 21-22.
33 U.S.C. § 1344(e). They cannot, therefore, involve the “unacceptable adverse effect[s]” that
§ 404(c) addresses.
7 In City of Alma v. United States, 744 F. Supp. 1546, 1553 (S.D. Ga. 1990), the Corps
permit had been declared invalid years before EPA’s action and EPA exercised § 404(c) to veto a
proposed new permit. In Russo Dev. Corp. v. Reilly, No. 87-3916, 1990 U.S. Dist. LEXIS 15859
(D.N.J. Mar. 16, 1990), the court considered whether EPA could veto a proposed permit to
authorize a fill that already had occurred without a permit (an “after-the-fact” permit). And in
Hoosier Envtl. Council, Inc. v. U.S. Army Corps of Eng’rs, 105 F. Supp. 2d 953, 971 (S.D. Ind.
2000), the court mentioned § 404(c) in but a single sentence addressing the evidentiary
significance of EPA comments concerning a proposed permit.
EPA also relies throughout its brief on stray language in James City County v. EPA, 12
F.3d 1330 (4th Cir. 1993) regarding the breadth of EPA’s power under § 404(c). But James City
County did not involve a post-permit veto or an intervening discharge regulated under § 402.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 17 of 39
11
EPA does not dispute that Senator Muskie expected that EPA would act under § 404(c)
prior to the issuance of a permit. And as EPA acknowledges, as a chief sponsor and drafter of
the CWA, Senator Muskie’s contemporaneous understanding of the CWA’s provisions is
powerful evidence of Congressional intent that is routinely cited as the most reliable summary of
EPA’s role in § 404. Indeed, three of the authorities EPA cites rely on it. See 43 Op. Att’y Gen.
197, 199-200 (1979) (saying that“[t]he EPA responsibilities [under Section 404] were perhaps
best summarized by Senator Muskie”); James City Cnty. v. EPA, 955 F.2d 254, 261 (4th Cir.
1992) (same); Creppel v. U.S. Army Corps of Eng’rs, Civ. A. No. 77-25, 1988 WL 70103, *7
(E.D. La. June 29, 1988) (same).
EPA nonetheless tries to diminish the significance of Senator Muskie’s explanation of
§ 404(c). EPA argues that the remarks of a single legislator are not controlling. EPA Br. at 26.
But even if Senator Muskie were just another “single legislator,” that does not mean such
statements would be irrelevant, just that they would be less persuasive if there were more
powerful forms of legislative history that provided conflicting evidence of legislative intent. See
Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979). But EPA has identified no contrary
legislative history.
D. EPA’s Interpretation Is Not Entitled to Deference.
EPA invokes Chevron deference based on the preamble to its 1979 regulations. See EPA
Br. at 5 (citing 44 Fed. Reg. 58,076 (Oct. 9, 1979)). But EPA derides that preamble later in its
brief as simply a non-binding policy statement. EPA Br. at 38 n.31. Having backed away from
the adoption of a regulation purporting to claim post-permit authority under § 404(c), EPA’s
invocation of deference rests on a shaky foundation. And contrary to EPA’s argument, EPA has
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 18 of 39
12
never before tried to modify an existing permit under § 404(c).8
But even if EPA had a regulation purporting to authorize the use of § 404(c) after permit
issuance, EPA wrongly invokes Chevron deference. The Court would defer to EPA only if the
statute were ambiguous and the agency’s interpretation were reasonable. But EPA flunks both
tests. And even if EPA could satisfy these two threshold requirements, deference would still be
inappropriate because Chevron deference does not apply where two agencies are charged with
administering a single statute. Rapaport v. U.S. Dep’t of the Treasury, 59 F.3d 212, 216-17
(D.C. Cir. 1995). This rule is acutely important where one agency’s reading of one provision in
a statute would encroach on the authority of another agency in another provision in the statute.
See Salleh v. Christopher, 85 F.3d 689, 691-92 (D.C. Cir. 1996).
EPA argues that this rule does not apply here, because the Corps has authority in §§
404(a)-(b), while EPA has authority under § 404(c). But the fact that Congress gave the Corps
and EPA authorities in different subsections does not allow EPA to disregard or undermine the
authority Congress gave the Corps instead of EPA. See Salleh, 85 F.3d at 692.
Salleh is remarkably similar to the case here. There, § 610(a)(1) of the Foreign Service
Act gave the Secretary of State the power to separate employees from the foreign service. Id. at
690-91. Viewed in isolation, the Secretary’s power was plenary. Id. at 691. But § 610(a)(2)
8 EPA wrongly contends that it has previously used § 404(c) to “withdraw a specification
in a Section 404 permit.” EPA Br. at 29 (citing 46 Fed. Reg. 10,203 (Feb. 2, 1981). But the
North Miami veto that EPA cites involved a proposed permit that would have replaced an
existing permit that the permit holder was violating. EPA did not act to revoke or modify the
existing permit, but acted on the proposal to replace that permit with a new permit. As EPA
itself proclaimed when announcing its proposed veto of the Spruce No. 1 Mine Permit, its action
here is truly unprecedented. See EPA Press Release, EPA Proposes Veto of Mine Permit Under
the Clean Water Act (Mar. 26, 2010) (“EPA has used its Clean Water Act veto authority in just
12 circumstances since 1972 and never for a previously permitted project.”) (emphasis added)
available at http://www.epa.gov/newsroom.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 19 of 39
13
provided that career employees not be separated until cause for separation is established at a
hearing before the Foreign Service Grievance Board. Id. (quoting 22 U.S.C. § 4010(a)(2)). The
Secretary interpreted § 610(a)(1), the terms of which did not limit the Secretary’s authority, to
allow the Secretary to override a Board determination that cause had not been established. The
Secretary sought Chevron deference, because he was interpreting § 610(a)(1) alone, which only
gives power to the Secretary. Id. The D.C. Circuit declined to defer and observed that “both the
Secretary and the Board have been delegated authority under two sequential provisions of
§ 610(a). To determine their respective authority, the whole section must be interpreted.” Id. at
692.
Deference under Chevron is improper here for the same reason. As in Salleh, two
agencies have been granted authority in sequential subsections of the same statute. Just as the
Secretary could not interpret § 610(a)(1) at the expense of the Board’s authority under §
610(a)(2), EPA cannot interpret § 404(c) expansively at the expense of the Corps’s power over
permits in §§ 404(a)-(b) and (s). See also Nat’l Ass’n of Mfrs., 134 F.3d at 1107-08.
Despite EPA’s contention that there is no conflict between its authority and the Corps’s,
EPA plainly attempts to overturn the Corps’s decisions to issue the permit and not to modify it.
The Corps issued a § 404 permit based on its determination that the permitted fill met all
statutory requirements and complies with the 404(b)(1) Guidelines. The Corps also rejected
EPA’s request to suspend, modify or revoke the Permit, finding that EPA’s reasons (essentially
the same as those in the Final Determination (“FD”)) provided no basis to do so. EPA now
would nullify both Corps’s decisions. The Corps found the mitigation conditions in the Permit
adequate; EPA now says otherwise. And the Corps expressly reaffirmed all of its permitting
judgments when it rejected EPA’s 2009 request to revoke the Permit. Each of the Corps’s
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 20 of 39
14
judgments made in issuing the Permit and then deciding not to suspend, modify or revoke the
Permit are final and entitled to deference. But EPA gives the Corps no deference and instead
claims that the Court must defer to EPA’s 404(c) decision. In sum, the facts here starkly show
the conflicting claims of authority under § 404 and why EPA should get no deference.
At the end of the day, EPA’s attempted refuge in deference evades fundamental questions
about the structure of § 404: Would Congress have selected the Corps as the permit issuer and
then given EPA unbridled authority to overturn the Corps’s permit until the last shovelful of fill
is deposited? Would Congress have established procedures for timely EPA participation in the
permit process and then allowed EPA to ignore those procedures and to overturn a permit at any
time after its issuance? Would Congress have created certainty for permittees that comply with
permit terms and then, without mentioning the permit in § 404(c), allow EPA to invoke that
subsection to take away the permit despite the permittee’s compliance with the permit’s terms?
In each instance, the answer must be “no.”
II. EPA Usurps West Virginia’s Authority Under §§ 303, 401 and 402.
According to EPA, it does not matter that CWA § 402 directly regulates the discharge of
pollutants into downstream waters and, therefore, the downstream impacts on which EPA bases
its FD. See, e.g., EPA Br. at 49. Even though it would be constrained from acting under § 402,
EPA argues that it can skirt those constraints and concurrently regulate the discharges as a
“secondary effect” under § 404. EPA is wrong. 9
A. Downstream Effects Are Regulated by § 402, Not § 404.
All water that passes over or through the permitted valley fills is collected in one of three
9 EPA wrongly asserts that Mingo Logan does not challenge the facts and science on
which EPA relies. EPA Br. at 42. As indicated throughout Mingo Logan’s comments in the
administrative record Mingo Logan vigorously disputes EPA’s factual assertions and scientific
conclusions but has chosen to focus its limited pages on EPA’s lack of legal authority.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 21 of 39
15
sediment ponds. Any pollutants that leach from the valley fills must be collected in and treated
by the sediment ponds.10 In turn, water cannot be discharged legally from those ponds without
an appropriate WVDEP-issued § 402 permit. The following diagram illustrates the basic
configuration of a valley fill and associated sediment pond:
Section 404 permits do not regulate discharges of selenium or total dissolved solids (“TDS”);
they only apply where the pollutant is “dredged or fill material.” See 33 U.S.C. § 1342(a)(1);
Coeur Alaska, 129 S. Ct. at 2467 (emphasizing that where the substance discharged is “dredge or
fill material,” it is governed by § 404, while all other point source discharges of “pollutants” are
governed by § 402). WVDEP issued a § 402 permit in 1999, and has modified and re-issued it
several times since. See ML Br. at 5-6. That permit sets forth the requirements that WVDEP
imposed to govern discharges from Mingo Logan’s sediment ponds to Spruce Fork.11 When
EPA contends that water quality downstream of the Spruce No. 1 Mine’s sediment ponds would
10 Exhibit 2 to Mingo Logan’s Opening Brief (ECF No. 26-2) shows the location of the
valley fills and the sediment ponds. That depiction did not include a channel that diverts water
from a tributary of Pigeonroost Branch so that it flows into Pigeonroost Branch upstream of
outfall 001. Attached as Exhibit 4 is a corrected version of the depiction.
11 EPA attempts to evade this problem by conjuring a second effect it calls the “loss of
freshwater dilution.” EPA Br. at 50. But this is simply another way of characterizing the
discharges governed by the § 402 permit. The quantity of water that is discharged downstream
from the sediment ponds is as great if not greater than the quantity that would be discharged in
the absence of the valley fills. See AR010081. So the same amount of water will flow
downstream; the only variable is the level of contaminants that water will contain. The higher
the levels of contaminants, the less the dilutive effect. This can be characterized as an increase
of contaminants or the loss of dilution. But either way, the effect is the same, and it is controlled
by the 402 permit.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 22 of 39
16
be “unacceptable” due to levels of selenium or TDS, what EPA really is saying is that the
effluent limitations in the § 402 permit are not strict enough — a collateral attack on the § 402
permit that undermines the certainty that § 402(k) is meant to provide.
EPA does not dispute that the § 402 permit regulates discharges from the sediment ponds,
or that WVDEP has decided whether and how to regulate any selenium or TDS that those
discharges may contain. Instead, EPA argues that it can simultaneously and independently
regulate these same discharges under § 404(c) by characterizing them as a “secondary effect” of
the authorized § 404 discharges. EPA Br. at 42 (citing 40 C.F.R. § 230.11(h)).12 Contrary to
EPA’s argument, the Supreme Court did reject such a two-permit regime in Coeur Alaska as
“contrary to the statute and the regulations.” Coeur Alaska, 129 S. Ct. at 2474.
According to EPA, Coeur Alaska is inapposite because the issue there was whether a
discharge of fill material required both a § 402 and § 404 permit, and EPA is not making that
argument here. But this narrow reading ignores what is at stake here and the reasons the Court
reached its holding in Coeur Alaska. Here the issue is whether the same discharges from the
sediment ponds that are already regulated by WVDEP under § 402 may also be regulated by
EPA under § 404. The Ninth Circuit found no problem with this overlap. Id. at 2466. The
Supreme Court disagreed, and specifically rejected the notion that both permitting programs
could govern a single discharge. A contrary result “would cause confusion, delay, expense, and
uncertainty in the permitting process.” Id. at 2474.
The same confusion, delay, expense and uncertainty would result if, as EPA argues, the
discharges from the sediment ponds, which are unquestionably regulated by WVDEP under
12 As noted below, EPA’s own regulations state that secondary effects “shall be
considered prior to the time final section 404 action is taken by permitting authorities.” 40
C.F.R. § 230.11(h)(1) (emphasis added).
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 23 of 39
17
§ 402, are simultaneously subject to regulation by the Corps and EPA under § 404. Discharges
authorized pursuant to § 402 could later be “vetoed” as “unacceptable” in the context of § 404.
As Mingo Logan explained in its Opening Brief, Congress and the Supreme Court rejected such
a clash of regulatory authorities, with its resulting unacceptable consequences. “Congress
intended to establish ‘clear and identifiable’ discharge standards.” Int’l Paper Co. v. Ouellette,
479 U.S. 481, 496 (1987). “It is unlikely — to say the least — that Congress intended to
establish . . . a chaotic regulatory structure” that would allow the very same discharges to be
treated as acceptable under § 402 and unacceptable under § 404. Id. at 497.13
Notwithstanding these clear directives, EPA contends that “[t]he broader structure of the
CWA” allows simultaneous regulation of discharges under both § 402 and § 404. EPA Br. at 43.
But EPA flatly ignores the havoc that its interpretation wreaks on the statute’s § 402 program
and the § 303 program for promulgating and revising water quality standards. EPA makes no
attempt to resolve the patent conflicts that its position creates between § 404(c) and these other
sections. Mingo Logan’s interpretation avoids these conflicts and should be adopted for that
reason alone. See Nat'l Ass'n of Recycling Indus., Inc., 600 F.2d at 799.
Moreover, the provisions that EPA cites do not actually confirm EPA’s position. EPA
first cites § 401 and its requirement that States must certify that discharges authorized by
federally-issued permits will comply with “applicable provisions” of the CWA. EPA notes that
some of those provisions, such as § 306 (addressing performance standards), are “typically
regulated through section 402 permits.” EPA Br. at 43-44. EPA argues that this shows Congress
13 EPA misleadingly relies on cases where EPA based a § 404(c) veto on water quality
impacts caused by § 404 discharges, see EPA Br. at 43, but fails to observe that in each of those
cases, unlike here, there was no intervening § 402 permit between the § 404 fill discharge and
the downstream receiving water. Neither the 404(b)(1) Guidelines nor the cases on which EPA
relies say that a single discharge of pollutants from the sediment ponds can be governed by both
§ 404 and § 402.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 24 of 39
18
intended for downstream water quality impacts to be considered under § 404(c), even if they
already are regulated under § 402. But EPA neglects to note that § 401 applies not only to § 404
permits, but to all federally-issued permits, including EPA-issued (as opposed to State-issued)
§ 402 permits. See 40 C.F.R. § 122.4(b) (noting that EPA cannot issue a § 402 permit without
first obtaining a § 401 certification). So § 401 quite naturally includes some provisions that are
applicable in the § 402 context, but not necessarily in the § 404 context, and vice versa.14 That
unexceptional feature of § 401 in no way suggests that § 404 can be used to regulate discharges
that are squarely governed by § 402.
EPA also points to § 404(b)(1), where Congress directed EPA and the Corps to develop
guidelines “based upon criteria comparable to the criteria” established under § 403. EPA
contends that the § 403 requirement that pollutant dispersal and the ramifications of fill disposal
on the wider ecosystem be considered in the context of ocean dumping “reflects Congress’[s]
concern with effects beyond the specific disposal site.” EPA Br. at 44. Mingo Logan agrees.
But as EPA notes in the very next sentence, § 404(b)(1) says nothing about whether a single
discharge can be regulated under both § 402 and § 404. Here, Congress’s concern with water
quality downstream of Spruce is addressed by the comprehensive programs for promulgating
water quality standards (§ 303) and for ensuring that discharges of pollutants comply with those
standards and other CWA requirements (§ 402). Under Coeur Alaska, the mechanism for
ensuring water quality downstream of the sediment ponds is § 402, not § 404.
B. EPA Fails to Demonstrate That “Downstream Effects” Are the Result of §
404 Discharges.
Of the 29 outfalls that drain runoff from the Spruce No. 1 Mine site, only three receive
14 Indeed, one of the express holdings of Coeur Alaska is that § 306 new source
performance standards do not apply to § 404 discharges. Coeur Alaska, 129 S. Ct. at 2473.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 25 of 39
19
water from the § 404 valley fills at issue here. The other 26 drain water that does not touch
those fills. EPA bears the burden of demonstrating that the § 404 discharges — not other
aspects of the same mine that are not caused by the § 404 fill discharges — will cause
unacceptable adverse effects. But EPA’s FD makes no attempt to distinguish effects attributable
to water from the valley fills.
EPA calls these other discharges “secondary effects.” EPA Br. at 51 (citing 40 C.F.R.
§ 230.11(h)). But EPA cannot rely on alleged secondary effects because the regulation on which
EPA relies requires that “[i]nformation about secondary effects on aquatic ecosystems shall be
considered prior to the time final section 404 action is taken by permitting authorities.” 40
C.F.R. § 230.11(h)(1) (emphasis added). Moreover, the discharges from these non-fill areas are
regulated by West Virginia under both the Surface Mining Control and Reclamation Act, 30
U.S.C. §§ 1201, et seq. (“SMCRA”) and § 402. ML Br. at 33-35. To assume that the entire
mine falls within the ambit of § 404 “is to effectively read out of the equation the elaborate,
congressionally mandated schema for the permitting of surface mining operations prescribed by
SMCRA.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 195 (4th Cir. 2009),
cert. dismissed, 131 S. Ct. 51 (2010) (“OVEC”).15
15 EPA unpersuasively attempts to distinguish OVEC. First, EPA argues that the Fourth
Circuit only deemed upland areas outside the ambit of § 404, while EPA focuses here on the
aquatic ecosystem. EPA Br. at 51-52. This is not a fair characterization because the Fourth
Circuit rejected OVEC’s contention that § 404 required the Corps to consider “the entire valley
fill project.” OVEC, 556 F.3d at 194-95. Moreover, the mine areas that EPA seeks to regulate
through § 404 here are upgradient of or unrelated to the fill. See Exhibit 4. Second, EPA argues
that it has broader authority under § 404 than the Corps, because EPA can consider impacts on
resources, such as “municipal water supplies,” beyond the site of the fill. EPA Br. at 43. But the
404(b)(1) Guidelines also require the Corps to consider such factors before issuing a permit.
See, e.g., 40 C.F.R. § 230.50 (explaining how the Corps must consider municipal water
supplies). And any EPA authority to consider downstream effects under § 404(c) is confined to
situations involving no intervening § 402 discharge permit.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 26 of 39
20
C. EPA Cannot Use § 404(c) to Supplant State Water Quality Standards.
EPA does not contend that any alleged discharges of selenium or TDS into downstream
waters will violate West Virginia’s water quality standards. Were it otherwise, then WVDEP
could not have issued the § 402 permit or made the § 401 certification.16 EPA likewise does not
dispute that West Virginia’s water quality standards dictate what is “acceptable” in terms of
water quality and govern permitting decisions under the CWA. Nor does EPA dispute that these
standards take into consideration each of the resources that EPA considers under § 404(c). See
ML Br. at 35-37. Instead, EPA urges that compliance with applicable State water quality
standards is of no moment in a § 404(c) action, as the governing standard is “unacceptable
adverse effects,” and EPA can unilaterally determine what is acceptable for purposes of water
quality in the § 404(c) context. But as Mingo Logan has explained, § 404(c) does not authorize
EPA to make up new water quality requirements in contravention of other provisions of the Act.
EPA makes three arguments that do not address the fundamental problem that Mingo
Logan has identified. First, EPA contends that state water quality standards are a floor and not a
ceiling, and that § 401(b) “does not ‘limit the authority of any department or agency pursuant to
any other provision of law to require compliance with any applicable water quality
requirements.’” EPA Br. at 53 (quoting 33 U.S.C. § 1341(b)). Yet nothing in this provision
empowers a federal agency to make up new “applicable water quality requirements.”17 Section
401(b) simply authorizes additional conditions to ensure compliance with properly issued
16 See 40 C.F.R. §§ 122.4(d), 123.25(a)(1). The amicus brief submitted by various
environmental groups (ECF No. 60) excoriates West Virginia’s performance in enforcing its
water quality standards. Even if these criticisms were valid — and they are not — such
problems would not excuse EPA from following the exclusive statutory procedure for addressing
them. See ML Br. at 35-37.
17 As Mingo Logan has explained, “applicable water quality requirements” are the State
requirements, the interpretation of which lies with the States. ML Br. at 35.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 27 of 39
21
“applicable water quality requirements.”
Moreover, by reading § 401(b) to give EPA the power to second-guess West Virginia’s
water quality determinations, EPA reaches a result that Congress specifically intended to avoid.
The House Report on the CWA explained that this provision was not intended to give EPA the
power to independently review State certification decisions:
Subsection (b) provides that nothing in this section is to be
construed to limit the authority of any department or agency
pursuant to any other provision of law to require compliance with
applicable water quality requirements. The Administrator is also
directed to provide technical assistance to carry out the purposes of
this Act.
The Committee notes that a similar provision in the 1970 Act has
been interpreted to provide authority to the Administrator to
independently review all State certifications. This was not the
Committee’s intent. The Administrator may perform services of a
technical nature, such as furnishing information or commenting on
methods to comply with limitations, standards, regulations,
requirements or criteria, but only upon request of a State, interstate
agency, or Federal agency.
H.R. REP. NO. 92-911 (Mar. 11, 1972), reprinted in 1 LEGISLATIVE HISTORY at 810-11.
Second, EPA suggests in passing that Mingo Logan’s interpretation of the effect of the
§ 401(a) certification “would all but eviscerate Section 404(c).” EPA Br. at 54. Not so. EPA
can properly exercise its authority in a wide range of circumstances that do not intrude on the
State’s authority to set water quality standards. For example, EPA’s action in James City Cnty.
was not based on a judgment about water quality. See James City Cnty., 12 F.3d at 1337.
Finally, EPA argues that it can apply its own ad hoc water quality criteria because
“nothing in the CWA or its implementing regulations makes compliance or non-compliance with
water quality standards a precondition for EPA’s exercise of its ‘veto’ authority.” EPA Br. at 54.
This is simply incorrect for the reasons discussed above and in Mingo Logan’s Opening Brief.
See ML Br. at 35-39. Again, EPA does not explain why Congress would have established an
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 28 of 39
22
elaborate process for establishing and enforcing water quality standards in which the States are
given primacy, and then without mentioning water quality standards in § 404(c), give EPA carte
blanche to override those standards and make up new ones without following the procedures
required in § 303(c).
III. EPA Has Not Explained How Substantial New Information Establishes That the
§ 404 Discharges Will Now Have an Unacceptable Adverse Effect on Wildlife.
EPA evaluated the impacts of the § 404 discharges for over a decade. ML Br. at 40-49.
That review culminated with its November 2, 2006 notice that “[EPA has] no intention of taking
[its] Spruce Mine concerns any further from a Section 404 standpoint” AR023081. At that
point, EPA deferred to the Corps’s judgment. See Coeur Alaska, 129 S. Ct. at 2465.
In the same preamble that EPA cites to stake out its authority to act after a permit has
issued, see EPA Br. at 5, 29, EPA recognized that such action could not be based on matters
considered by EPA and resolved to its satisfaction during the permit proceeding, “unless
substantial new information is first brought to the Agency’s attention after issuance.” 44 Fed.
Reg. at 58,077 (emphases added). Eschewing any pretense of consistency, EPA dismisses this
requirement of its preamble as a mere “policy statement.” EPA cannot have it both ways. If,
contrary to Mingo Logan’s contention, the preamble justifies EPA’s post-permit action, EPA
must meet the burden that preamble sets forth. And regardless of the preamble, EPA must
articulate, based on the administrative record, a rational basis for changing its position after the
Corps issued the Permit. EPA fails both of these requirements. It has neither identified
“substantial new information” nor explained how any such information specifically justifies its
action here. Instead, EPA merely cites the FD’s conclusions, without justifying them by
reference to and explanation of the record.
EPA, the Corps, and other federal and state agencies studied extensively impacts to
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 29 of 39
23
macroinvertebrates, salamanders, fish and birds. ML Br. at 40-49; Statement of Facts Material to
Mingo Logan’s Mot. for Summ. J. As To Which There Is No Genuine Issue ¶¶ 6-53 (May 27,
2011) (ECF No. 26) (“ML SOF”). Yet, neither the FD nor EPA’s brief identifies what EPA has
learned about impacts to these species —EPA’s stated basis for acting under § 404(c) — since
the issuance of the Permit. ML Br. at 47-49; EPA Br. at 38-41.18 Instead, EPA merely cites to
the reference list from the FD and notes that it contains over 100 articles dated after January
2007. EPA Br. at 38-40. That bald reference does not establish that any of the articles contain
substantial new relevant information. Absent such justification EPA’s FD is arbitrary and
capricious. See ML Br. at 44.
The limited evidence that EPA does cite on the direct impacts is meager and does not
establish a significant loss that the aquatic ecosystem cannot afford.
Louisiana Waterthrush. EPA does not contend that the Louisiana Waterthrush has ever
been located in the project area. EPA Br. at 36. The bird’s absence from the permit area renders
EPA’s conclusion that the fill will result in a significant loss of Louisiana Waterthrush arbitrary
and capricious. EPA cannot simply speculate that one day Louisiana Waterthrush may want to
18 The only arguably new information identified in EPA’s brief regarding direct impacts
is information allegedly gained after Permit issuance about the difficulty of mitigation through
stream creation. See EPA Br. at 41. But this information cannot justify EPA’s exercise of
§ 404(c) because EPA says that the alleged inadequacy of mitigation is not an essential
consideration and not legally relevant to the FD. Id. at 55. Moreover, as evidenced by
longstanding EPA policy and its comments during the Permit process, EPA knew about the
uncertainty of success with stream creation before Permit issuance. Mem. of Agreement
Between the EPA and the Dep’t of the Army Concerning the Determination of Mitigation Under
the Clean Water Act Section 404(b)(1) Guidelines, at 4 (Feb. 6, 1990), available at
http://water.epa.gov/lawsregs/guidance/wetlands/mitigate.cfm; AR022796. The Corps addressed
that uncertainty by writing a condition into the permit that reserved to itself broad authority to
require more mitigation in the event of mitigation failure, and to keep requiring additional
mitigation until the Corps is fully satisfied that all impacts have been successfully mitigated.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 30 of 39
24
reside in the fill area.19
Fish. EPA does not establish that fish live in the permitted fill area. Instead, EPA cites a
study that located fish downstream of the filled areas and a report that Mingo Logan provided to
show that there are no fish in the permitted fill area. EPA Br. at 36; AR010460 (citing Stauffer
and Ferrari 2002 and Decota 2008-09).20 The Corps concluded that there were no fish in the area
to be filled in the environmental impact statement (“EIS”) for the 404 permit. 21 EPA determined
that there were no fish in the project area in the Programmatic EIS for Mountaintop Mining.22
And sampling completed in 2008 and 2009 by Decota Consulting Co., Inc. confirmed that there
are no fish in the area to be filled.23 Thus, EPA’s claim that there are fish in the permitted fill
19 Moreover, Mingo Logan has explained (with cites to the record) that the Louisiana
Waterthrush inhabits mature forests near perennial streams, unlike the permitted fill areas (which
explains why none has ever been seen there). ML Br. at 53. In response, EPA recites conclusory
statements from an appendix to the FD with reference only to a U.S. Fish & Wildlife Service
communication that is not in the record. EPA Br. at 36.
20 See CH2M Hill, Technical Evaluation Document: Spruce No. 1 Mine, West Virginia
(June 2010) (“CH2M Hill”) at 31 (“The PSU fish survey did not include . . any intermittent or
ephemeral stream reaches representative of the proposed VF [valley fill] areas of the Spruce
Mine.”); 37 (“The surveyed stations on Oldhouse Branch and Pigeonroost Branch [used by
Stauffer and Ferrari] were located downstream from the proposed Spruce Mine VFs”); 41 (“All
of the stream sites surveyed [by Decota 2008-09] were located downstream from proposed VFs,
where flows were persistent enough to support fish”). AR008237; AR008793.
21 AR013282 (“[n]o fish species . . . were identified . . . within waters of the proposed
project area.”); AR013288 (“No fish were identified during studies within the project area”).
22 The study prepared by EPA for the Programmatic EIS, Stauffer and Ferrari 2002,
looked for fish in Pigeonroost Branch and Oldhouse Branch in 1999 and 2000. AR034558. The
authors found no fish in Oldhouse Branch. AR034568 (PSU Station 24); AR034574-75 (same);
AR034621 (same). They did locate two species of fish in Pigeonroost Branch, but they sampled
fish far downstream of the permitted fill area at EPA station number MT-45. AR034568;
AR034558 (describing the sample site as “downstream of security gate”).
23 Decota located two species of fish in Oldhouse Branch, but the sampling site was
located well below the outfalls of the sedimentation ponds that drain the permitted fill area.
CH2M Hill at 41, 42. Decota also located several species of fish in Pigeonroost Branch, but as
CH2M Hill explained, each of these sample sites was downstream of the sedimentation ponds.
Id. at 41. Each time Decota sampled a tributary of Pigeonroost Branch that falls within the
permitted fill area, they found no fish. Id. at 41 (“No fish were collected in either 2008 or 2009
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 31 of 39
25
area, is not supported by the administrative record. And even if the five species of fish the cited
studies identify had been found in the fill area, EPA does not explain how the loss of an area
transited by those fish would result in significant loss to Spruce Fork’s admittedly robust fish
population. AR009947.
Macroinvertebrates and salamanders. Finally, with respect to impacts to
macroinvertebrates and salamanders — impacts known by EPA for over a decade — EPA fails
to explain what new and different information has come to its attention. EPA Br. at 34. To
Mingo Logan’s argument that EPA’s assertions regarding food webs are conjectural, EPA
responds only that it included a cartoon picture of several animals found in the watershed, and
cited a review of research from 2005 and a theoretical paper from 1980, neither of which studied
stream disruptions or fills of any type or presented any original data whatsoever. Id. at 35;
AR026602-03; AR010205; AR038950. As to salamanders, EPA explains that it cited a research
review from 2004 that did not present original data, let alone study the impact of salamander loss
on the food web, and merely discusses salamander roles in the ecosystem. EPA Br. at 35 n.30;
AR027729, et seq.24
Unable to demonstrate substantial new information or unacceptable adverse effects on
the wildlife that form the basis of the FD, EPA attempts to justify its decision on other grounds,
such as impacts to “84 taxa of macroinvertebrates and up to 46 species of reptiles and
amphibians and four species of crayfish.” EPA Br. at 34. But the FD does not rely on impact to
reptiles or crayfish. AR010149-51. Nor does the FD explain how the loss of 84 taxa of
in the small tributary of Pigeonroost Branch (Station F-5), which is most representative of the . . .
streams that may be impacted by the discharge of fill material”); 42 (“No fish”).
24 The two quotes relied on by EPA are not conclusions from that review, but derive
entirely from different studies dated 1968, 1975, 1994, 1987, 1983 (2) and 1998. Compare EPA
Br. at 35 n.30 with AR027745.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 32 of 39
26
macroinvertebrates will affect the ecosystem in light of the existence of many of the same taxa in
nearby White Oak Branch, especially since the presence of these taxa in the fill area now has not
resulted in comparable levels of diversity in Spruce Fork. AR010209
Habitat. In a last ditch effort, EPA focuses on the habitat allegedly impacted by the § 404
discharges. EPA Br. at 33. But this too fails to justify the FD. The FD relies on language in
§ 404(c) requiring EPA to demonstrate that the authorized discharges will cause an unacceptable
adverse effect to “wildlife.” AR010148. EPA cannot rely on impact to habitat without showing
that the loss of such habitat results in a significant loss of wildlife. By definition, “habitat” is
“the region where a plant or animal naturally grows or lives.” WEBSTER’S at 627. In other
words, habitat cannot be dissociated from the existence of the wildlife it supports and the
importance of that wildlife to the watershed or region. Thus, unless EPA can demonstrate that
the wildlife that formed the basis of the FD (macroinvertebrates, salamanders, fish, Louisiana
Waterthrush) exist in the permitted fill area, and that the loss of such wildlife will be
“significant” in the watershed or region, see 40 C.F.R. § 231.2(e), EPA has failed to meet its
burden under § 404(c).
In sum, EPA’s failure to demonstrate substantial new information establishing
unacceptable adverse effects to wildlife renders the FD arbitrary and capricious.
IV. EPA Failed to Take Into Account the Permit’s Mitigation Conditions.
A. EPA Cannot Ignore Mitigation.
EPA claims that it need not consider compensatory mitigation, maintaining that Mingo
Logan does not contest EPA’s interpretation of § 404(c). EPA Br. at 55. This is simply untrue:
Mingo Logan contests any interpretation of § 404(c) that allows EPA to disregard the positive
effects of the Permit’s mitigation conditions when evaluating whether the permitted discharges
will have an unacceptable adverse effect. In the § 404(q) MOA, for example, EPA has
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 33 of 39
27
interpreted “unacceptable adverse effects” to require consideration of mitigation. The MOA
adopts a standard comparable to the standard for § 404(c), which requires a determination of
whether the “net loss (i.e., after considering mitigation) from the project (i.e., within the scope of
impacts being evaluated by the Corps), will result in unacceptable adverse effects.” 404(q)
MOA Part IV ¶ 1 (emphasis added). Similarly, EPA’s regulations on § 404(c) direct it to
consider relevant portions of the Guidelines, which include provisions on compensatory
mitigation. 40 C.F.R. §§ 231.2(e), 230.10(d). Thus, the benefits as well as the impacts must be
evaluated in determining “unacceptable adverse effects.” EPA’s position that it may consider
only the authorized impacts of the Permit and ignore the benefits obtained through the Permit’s
mitigation conditions is inconsistent with EPA’s historical practice, inconsistent with analogous
case law, and illogical.25
B. EPA Acted Arbitrarily and Capriciously in Failing to Account for the
Permit’s Mitigation Conditions.
The Permit includes mitigation conditions that require performance standards based on
the existing functional assessment methodologies (i.e., the Rapid Bioassessment Protocols and
West Virginia Stream Condition Index) and any future functional assessment methodology, and
that require remedial action or additional mitigation if stream creation or any other aspect of the
mitigation proves unsuccessful. The Corps determined that these safeguards sufficiently offset
the unavoidable impacts to the waters of the United States. See AR04950 et seq. And the
25 See ML Br. at 54. In response, EPA inappropriately relies on Alameda Water &
Sanitation Dist. v. Reilly, 930 F. Supp. 486, 490 (D. Colo. 1996). But in that case, EPA did
consider mitigation and found that “the resources which would be lost were so valuable that the
project’s impacts, even factoring in the proposed mitigation, were unacceptable.” Id. at 490
(emphasis added). The court considered whether EPA should consider less damaging practicable
alternatives to the proposed project before considering compensatory mitigation. This advisory
opinion (the court had already determined that the plaintiffs lacked standing) does not apply here
because the FD does not rely on the alternatives analysis, and in any event, the court did not rule
that EPA need not consider the effects of mitigation in making a determination under § 404(c).
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 34 of 39
28
Government successfully defended these functional assessment methodologies and the
acceptability of stream creation in the OVEC litigation, and therefore should be judicially
estopped from attacking them here. See ML Br. at 56-58.
Rather than contesting the inconsistency between its positions in OVEC and here, the
United States seeks to excuse its conduct. It argues that its inconsistency is acceptable because §
404 anticipates conflicting decisions by EPA and the Corps. EPA Br. at 56. But it is only EPA’s
unreasonable interpretation of § 404(c) that leads to such a result. Next, it argues the
government “may not be estopped on the same terms as any other litigant.” EPA Br. at 56. But
it relies on Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 60 (1984),
which addresses equitable, rather than judicial estoppel. Judicial estoppel is appropriate where
the government “conducts what appears to be a knowing assault upon the integrity of the judicial
system.” United States v. Owens, 54 F.3d 271, 275 (6th Cir. 1995) (internal citations and
quotations omitted). No party — not even the Government — can trifle with the courts.26
EPA’s principal argument is that the Government’s about-face reflects a “change in
public policy” or a “change in facts essential to the prior judgment,” citing the Corps-EPA 2008
mitigation rule and its preamble. EPA Br. at 56-57; 73 Fed. Reg. 19,594 (Apr. 10, 2008). Not
only does this contention conflict with the Corps’s view of the mitigation rule when it reaffirmed
the propriety of the Permit in 2009 after adoption of the 2008 mitigation rule, EPA’s contention
is unlawful. By applying this “change in public policy” to a previously issued permit, EPA is
applying the mitigation rule retroactively. Thus, the application of this rule and its policy to the
mitigation conditions in the Spruce Permit was not only a violation of the Administrative
26 The Government argues further that judicial estoppel does not apply here because it
“would compromise a governmental interest in enforcing the law.” EPA Br. at 56 (citing New
Hampshire v. Maine, 532 U.S. 742, 755 (2001)). However, enforcement is not at issue here
because there is no claim of any permit violation.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 35 of 39
29
Procedure Act’s requirement that regulations must only be given “future effect”27 but it was also
a violation of the terms of the rule itself28 — an independent act of “arbitrary and capricious”
conduct. See Vitarelli v. Seaton, 359 U.S. 535, 540 (1959). An unlawful retroactive application
of the mitigation rule cannot justify avoidance of judicial estoppel.
Further, EPA does not explain why the Permit’s conditions requiring functional
assessment methodologies as performance standards and requiring remedial mitigation measures
do not suffice.29 To the extent a new functional assessment methodology is developed in the
future with improved assessment of a stream’s functions, the Permit conditions require its use to
determine the success of mitigation. It is arbitrary for EPA to ignore these Permit conditions.
Even if arguendo stream creation will not adequately mitigate the effects of the fills, the Permit
requires Mingo Logan to perform remedial action or additional and new mitigation. See ML Br.
at 54-55; ML SOF ¶¶ 45-52. Additional mitigation can take the form of rehabilitation,
enhancement or preservation, all of which EPA acknowledged in the mitigation rule are accepted
forms of stream mitigation. See 73 Fed. Reg. at 19,597. By failing to take account of Permit
conditions that address EPA’s concerns, EPA has failed to address an obviously relevant factor
— the Permit itself — and has arbitrarily failed to determine whether beneficial mitigation
27 5 U.S.C. § 551(4); see Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 218 (1988).
28 The 2008 Rule explicitly states that it “will apply to permit applications received after
the effective date of this rule” and that “[p]ermit applications received prior to the effective date
will be processed in accordance with the previous compensatory mitigation guidance.” 73 Fed.
Reg. at 19,608 (emphasis added).
29 EPA’s discussion of alleged misclassification of the streams is a red herring. EPA
admits that stream function, not the type of resource, determines the mitigation’s adequacy. EPA
Br. at 58 (“This issue is not . . . the type of mitigation measures, but rather the failure of the
mitigation to compensate for lost streams.”). Mingo Logan agrees that the key factor is whether
newly-created streams will replace the functions of the streams impacted. For Spruce No. 1
Mine, the Corps measured stream functions using the available assessment tools and any future
functional assessment methodology, and the Permit’s performance standards are geared to
achieve full functional replacement, as determined by these methodologies.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 36 of 39
30
requirements render the Permit’s overall impacts acceptable.
V. EPA’s Discussion of the Guidelines Reveals a Flaw Endemic to Its Entire Analysis.
EPA cannot second-guess the Corps’s application of the 404(b)(1) Guidelines after a
permit has been issued. See ML Br. at 59-60. EPA gives no persuasive reason why the Court
should pay any attention to the FD’s discussion of the Guidelines, on which EPA admittedly did
not base the FD.
But in its discussion about the Guidelines, EPA engages in a sleight of hand that typifies
the disregard for the statute and case law that permeates EPA’s entire brief. EPA asserts that in
order to avoid EPA’s exercise of § 404(c), Mingo Logan had the burden to establish that the
Corps satisfied the Guidelines in issuing the Permit, and specifically had the burden to negate the
existence of other unmentioned practicable alternatives. EPA Br. at 60.30 To exercise § 404(c),
however, the burden is on EPA, not Mingo Logan. James City Cnty., 955 F.2d at 259 (holding
that EPA has the burden on alternatives); Bersani v. U.S. EPA, 850 F.2d 36, 40 (2d Cir. 1988).
CONCLUSION
For the reasons discussed above, the Court should grant Mingo Logan’s motion for
summary judgment, deny EPA’s motion for summary judgment, and enter judgment vacating
EPA’s FD in its entirety. The Court should declare that Mingo Logan’s Permit remains valid
and in full force, and enjoin EPA from taking any further action under § 404(c) with respect to
Mingo Logan’s § 404 Permit.
30 EPA’s sole cite to support this astounding argument is 40 C.F.R. § 230.10(a), which
places the burden on a permit applicant to satisfy the Guidelines in order to have the Corps issue
a permit. But Mingo Logan does not seek a permit; it has one. The Corps has already determined
that there are no practicable alternatives that would have fewer effects on the environment.
Mingo Logan has already met its burden.
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 37 of 39
31
September 6, 2011 MINGO LOGAN COAL CO., INC.
/s/ Robert M. Rolfe______________
Robert M. Rolfe (D.D.C. Bar No. MI0046)
Michael R. Shebelskie (Va. Bar No. 27459)
George P. Sibley, III (Va. Bar No. 48773)
HUNTON & WILLIAMS LLP
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, VA 23219
(804) 788-8200
(804) 788-8218 (facsimile)
Virginia S. Albrecht (D.C. Bar No. 357940)
Deidre G. Duncan (D.C. Bar No. 461548)
HUNTON & WILLIAMS LLP
2200 Pennsylvania Avenue, N.W.
Washington, D.C. 20037
(202) 955-1500
(202) 778-2201 (facsimile)
Robert G. McLusky
JACKSON KELLY PLLC
500 Lee Street East, Suite 1600
P.O. Box 553
Charleston, WV 25322
(304) 340-1000
(304) 340-1130 (facsimile)
Counsel for Plaintiff
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 38 of 39
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
MINGO LOGAN COAL COMPANY, INC. )
)
Plaintiff, )
)
v. ) Case No. 1:10-cv-00541-ABJ
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY )
)
Defendant. )
)
CERTIFICATE OF SERVICE
I hereby certify that on September 6, 2011, the foregoing Reply Statement of Points and
Authorities in Support of Mingo Logan’s Motion for Summary Judgment and Response to
EPA’s Motion for Summary Judgment, Exhibit 4, Mingo Logan’s Response to EPA’s Statement
of Facts, and Proposed Order were served on counsel of record through the Court’s electronic
case filing/case management (ECF/CM) system.
/s/ Robert M. Rolfe
Robert M. Rolfe (D.D.C. Bar No. MI0046)
HUNTON & WILLIAMS LLP
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, VA 23219
(804) 788-8200
(804) 788-8218 (facsimile)
Counsel for Plaintiff
Case 1:10-cv-00541-ABJ Document 65 Filed 09/07/11 Page 39 of 39
