Three Strikes and Mingo Logan Is Out: The D.C. Circuit Affirms EPA Withdrawal of Approval of Mountaintop Removal Disposal Sites

In 2013, the D.C. Circuit affirmed EPA’s authority to withdrawal approval of mountaintop mining disposal sites, even after the Army Corps has issued a Section 404 permit.  In 2014, the District Court rejected Mingo Logan’s challenge to EPA decision on the merits, finding that EPA’s withdrawal was not arbitrary and capricious.  Finally, early this week, the D.C. Circuit affirmed the District Court, holding that EPA had adequately justified withdrawal in this case, concerning Mingo Logan’s Spruce Number 1 mine.  spruce mine

The primary focus of Mingo Logan’s challenge was that EPA had failed to consider the costs that Mingo Logan had incurred in reliance on permit issuance and, in particular, had failed to balance those costs against the harm EPA alleged would result from the fill activities.  The Court explicitly did not decide whether such cost considerations might ever be relevant.  Instead, it rejected Mingo Logan’s claim as forfeited, because Mingo Logan’s comments on the withdrawal proposal, its complaint challenging the withdrawal, and its briefs to the District Court in support of its challenge all failed to raise the cost balancing issue.  While Judge Kavanaugh dissented, I think that the Court plainly got this one right.

Mingo Logan’s second line of argument was that EPA may not reject a fill site based on water quality impacts downstream of the fill location, where the state has issued an NPDES permit under § 402 of the CWA.  The Court concluded that EPA did not “intrude on West Virginia’s authority to regulate water quality.”  Instead, EPA assessed whether discharging fill would produce “unacceptable adverse effect[s]” on wildlife.

Mingo Logan also argued that, once a permit is issued, EPA faces a heightened burdened to demonstrate that the disposal sites are unacceptable, and that EPA failed to meet that burden.  The Court did not explicitly address how high a burden EPA faces in these situations, because it concluded that EPA’s explanation was sufficient, regardless of the burden.  In particular, EPA noted that EPA did rely on new information obtained since the permit was issued, included information from the operation itself.

Game, set and match.

FWIW, it’s not obvious to me why a court would conclude that EPA must take reliance costs into account when it considers post-permit withdrawal.  The statute simply says EPA may withdraw a specification for a site:

whenever [the EPA Administrator] determines, after notice and opportunity for public hearings, that the discharge of such materials into such area [specified for disposal] will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.

That does not look to me like the type of language Congress has traditionally used when requiring EPA to consider costs.

Finally, the court acknowledged that having disposal sites withdrawn after a permit has issued:

will perhaps inevitably leave a permittee feeling as if the rug has been pulled out from under it.

However, as the Court noted, “this power is one the Congress has authorized the EPA to exercise….”

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