Tag Archives: 404

An Example of True Judicial Restraint: Judge Robert Chambers Affirms the Highland Mining 404 Permit

After my post on judicial restraint – and the lack thereof – in Texas v. EPA, the opinion issued last week by Judge Robert Chambers, in Ohio Valley Environmental Coalition v. United States Army Corps of Engineers, affirming the Corps’ § 404 permit for Highland Mining’s Reylas Surface Mine, seemed particularly notable. I cannot recall of similar example of a judge who was almost visibly restraining himself,… More

EPA Loses Another One: Enhanced Mountaintop Mining Reviews Struck Down

As part of its efforts to control the impact of mountaintop removal mining, EPA has implemented a number of changes – both procedural and substantive – into how § 404 permit applications for such activities will be reviewed. None of these changes have gone through notice and comment rulemaking. As we previously noted, Judge Reggie Walton already expressed skepticism about EPA’s mountaintop removal guidance. Last week, in the latest decision in National Mining Association v.… More

The Battle Over Guidance Is Joined Again: EPA Finalizes Its Mountaintop Removal Guidance

mountain_topThe fight about guidance and rules is in the news again. Yesterday, EPA finalized its guidance on Clean Water Act permitting with respect to mountaintop mining. As most of our readers know, EPA issued Interim Guidance in April 2010. In January 2011, in National Mining Association v. Jackson, Judge Reggie Walton, while denying plaintiff’s preliminary injunction, signaled that he thought that EPA’s Interim Guidance probably was a legislative rule that should have gone through notice and comment rule-making.… More

EPA Issues New Rapanos Guidance: Perhaps the Agency Really Is Listening

I posted recently that EPA actually seems to be listening to comments from the regulated community and has changed course in some cases in response to those comments. The release by EPA and the Army Corps yesterday of their long-awaited revised guidance implementing the Supreme Court’s Rapanos decision confirms that EPA is in listening mode. Although I am not normally a fan, this new version seems an appropriate use of guidance.… More

Yet More Bad News for Coal (Mining): EPA Issues Guidance Imposing Numeric Criteria For Discharges From Mountaintop Mining

Last week, EPA proposed to veto a permit for the No. 1 Spruce Mine in West Virginia. Yesterday, EPA went much farther, announcing new guidanceeffective immediately – which will impose numeric water quality based effluent limits, or WQBELs, on effluent from surface mining projects. EPA has at least tentatively concluded that high conductivity resulting from discharges of mountaintop fill has adversely affected streams downstream of surface mining operations.… More

Bad Day at Black (Coal) Rock

Last week, I noted that Gina McCarthy, EPA’s Assistant Administrator for Air and Radiation, suggested that, in the short run, the most significant pressure on inefficient energy sources would come, not from climate change legislation or from EPA GHG regulations, but instead from all of the conventional pollutant regulations that EPA expects to promulgate that will make use of coal much more expensive. While Gina was referring to a variety of air regulations,… More