• EPA's "LATE HIT"
  • May 21, 2013 | Author: Stanley A. Millan
  • Law Firm: Jones Walker LLP - New Orleans Office
  • In Mingo Logan Coal Company v. U.S. EPA, 2013 WL 1729603 (D.C. Cir. 2013), the appellate court reversed the lower court and held that the EPA has the authority to veto Corps of Engineers 404 permits on waters of the United States and wetlands, either pre-permit or post-permit.

    The case involved a Corps permit to discharge dredged or fill material from a mountaintop coal mine in West Virginia into streams and tributaries. The permit under 33 U.S.C. 1344(a) (Section 404(a)) was issued by the Corps in 2007, and several years later, in 2011, the EPA vetoed the permit.

    Section 404(c) allows the EPA to veto 404 permits in certain circumstances. Section 404 allows the EPA to prohibit the specification (including withdrawal of a specification) of any defined area as a disposal site (what a 404 permit specifies) and to deny or restrict any defined area for specification (including withdrawal), "whenever he [EPA administrator] determines" the discharge will have an unacceptable adverse effect on identified resources. As a matter of practice, the EPA had used post-permit vetoes in other cases.

    During the 404(a) process in 2006, the EPA objected to the permit and later in 2009 asked the Corps to suspend, revoke or modify it, but the EPA did not exercise its veto power until years later. The veto process requires the EPA notice, hearing, and findings, which the permittee challenged judicially.

    Although the lower court sided with the permittee-plaintiff holding that the EPA arguably waited too late and lacked veto authority post-permit, the appellate court found that Congress plainly gave the EPA the power to revoke (veto) Section 404 specifications post-permit, as here, by using the statutory word "whenever." The case was remanded to the district court to determine if EPA's veto decision was reasonable. That issue is still pending.

    The EPA had deferred post-permit vetoes in other cases, pending this appeal, but is expected to commence its practice again of post-permit vetoes. The case is expected to go to the United States Supreme Court, unless Congress intervenes. Section 404 permits thus have a sword of Damocles hanging over them from a potential EPA "late hit" until the issue is better resolved.