Mingo Logan Coal Co. v. U.S. Envtl. Prot. Agency
| Decision Date | 23 March 2012 |
| Docket Number | Civil Action No. 10-0541 (ABJ) |
| Parties | MINGO LOGAN COAL COMPANY INC., Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant. |
| Court | U.S. District Court — District of Columbia |
On January 22, 2007, the Army Corps of Engineers ("Corps") issued a permit to plaintiff Mingo Logan Coal Company Inc. ("Mingo Logan") pursuant to section 404 of the Clean Water Act, which authorized Mingo Logan to discharge fill material from its Spruce No. 1 coal mine into nearby streams, including the Pigeonroost and Oldhouse Branches and their tributaries. Nearly three years later, defendant U.S. Environmental Protection Agency ("EPA") published a Final Determination purporting to withdraw the specification of those two streams as disposal sites and thereby invalidate the permit for those sites. This attempt to withdraw the specification of discharge sites after a permit has been issued is unprecedented in the history of the Clean Water Act.
Mingo Logan brought this suit seeking the Court's declaration that EPA lacks the authority to modify or revoke Mingo Logan's section 404 permit, that its attempt to modify the permit was unlawful, and that the permit is still operative. Am. Compl. [Dkt. # 16] at Count I. In addition, Mingo Logan asks the Court to vacate EPA's Final Determination on the grounds that it exceeded the agency's statutory authority under section 404(c) of the Clean Water Act,and that it was arbitrary, capricious, and not in accordance with law for a number of reasons. Id. at Counts II-XIV. The parties have cross-moved for summary judgment.
The Court concludes that EPA exceeded its authority under section 404(c) of the Clean Water Act when it attempted to invalidate an existing permit by withdrawing the specification of certain areas as disposal sites after a permit had been issued by the Corps under section 404(a). Based upon a consideration of the provision in question, the language and structure of the entire statutory scheme, and the legislative history, the Court concludes that the statute does not give EPA the power to render a permit invalid once it has been issued by the Corps. EPA's view of its authority is inconsistent with clear provisions in the statute, which deem compliance with a permit to be compliance with the Act, and with the legislative history of section 404. Indeed, it is the Court's view that it could deem EPA's action to be unlawful without venturing beyond the first step of the analysis called for by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). But it is undeniable that the provision in question is awkwardly written and extremely unclear. So, the Court will go on to rule as well that even if the absence of a clear grant of authority to EPA to invalidate a permit is seen as a gap or ambiguity in the statute, and even if the Court accords the agency some deference, EPA's interpretation of the statute to confer this power on itself is not reasonable. Neither the statute nor the Memorandum of Agreement between EPA and the Corps makes any provision for a post-permit veto, and the agency was completely unable to articulate what the practical consequence of its action would be. Therefore, the Court will grant plaintiff Mingo Logan's motion for summary judgment [Dkt. # 26] and deny defendant's cross-motion [Dkt. # 46].
Mingo Logan owns and operates the Spruce No. 1 mountaintop coal mine in Logan County, West Virginia. Administrative Record ("AR") 10117, 10120-24. Mountaintop mining involves removing the top of a mountain to recover the coal within it. AR 10118. This process generates excess rock, topsoil, and debris ("spoil") that cannot be returned to the mined area. Id. Typically, these materials are deposited in adjacent valleys, creating valley fills. Id.
In accordance with the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. § 1201, et seq., Mingo Logan obtained an SMCRA permit from the State of West Virginia for the Spruce No. 1 mine in 1998. 1 AR 8277. The original design called for the discharge of spoil in portions of Seng Camp Creek, Pigeonroost Branch and White Oak Branch of Spruce Fork. AR 8277.021.
Mingo Logan also applied for and obtained a National Pollutant Discharge Elimination System ("NPDES") permit under section 402 of the Clean Water Act ("CWA") from the State of West Virginia. AR 8062, 43101. EPA initially opposed the proposed permit, but ultimately withdrew its objections, noting that it would "allow limited mining and discharging during the five-year permit period, averting pending economic hardships from layoffs while requiring mitigation compensation for the limited stream portions filled." AR 8414-17. In withdrawing its objections, EPA also stated that:
During the first two years of [Mingo Logan]'s five-year NPDES permit, EPA will join with other federal and state agencies to undertake a comprehensive environmental evaluation of impacts and possible alternatives associated with mountaintop mining and associated valley filling in West Virginia and other mountaintop mining states. EPA will use the findings from this evaluation in review of any draft NPDES permit which may be applied for by the company for extending its valley fills and associated discharge points.
Id. The NPDES permit was subsequently modified twice. AR 8081. As contemplated, EPA conducted a Programmatic Environmental Impact Statement ("PEIS") on Mountaintop Mining, which it finalized in October 2005.
Mingo Logan also applied to the Corps for a CWA section 404 permit, the subject of this action. AR 2634-66. Originally, the permit application was submitted under Nationwide Permit 21 and approved by the Army Corps without preparing an Environmental Impact Statement ("EIS").2 See Bragg v. Robertson, 54 F. Supp. 2d 635, 639-40 (S.D.W.V. 1999). But, before any mining could take place, a federal court in West Virginia preliminarily enjoined the approval, and the Corps withdrew its nationwide permit authorization. Bragg, 54 F. Supp. 2d 635; Mingo Logan Response to EPA Statement of Undisputed Material Facts ("ML SMF") ¶ 38(e).
Mingo Logan subsequently applied to the Corps for an individual permit, under section 404(a) of the CWA, to discharge material from the Spruce No. 1 Mine into the Right Fork of Seng Camp Creek, Pigeonroost Branch, Oldhouse Branch, and White Oak Branch. AR 3052-70. The Corps began the process of developing an EIS for the project. EPA commented on a preliminary draft EIS in August 2001 and a draft EIS in August 2002, expressing its concernsabout each version, and also noting "the absence of information necessary to fully assess potential adverse environmental impact associated with this project." AR 19487; see also AR 19486-90, 45054-734, 42912-16. In the letter commenting on the draft EIS, EPA concluded that it "remains committed to working with the Corps, the state, and the applicant to identify and develop an environmentally acceptable project" and "would encourage additional discussions in an effort to clarify and resolve the issues raised in this letter." AR 19489. It also stated that "this matter is . . . subject to review under our authorities at CWA [s]ection 404(q) and [s]ection 404(c)." AR 19489-90.
In December 2005, the West Virginia Department of Environmental Protection granted state certification for the individual permit based on its determination that the project would not violate state water quality standards or anti-degradation regulations. 3 AR 20924-28.
In 2006, the Corps published for public comment a revised Draft EIS for the Spruce No. 1 Mine. ML SMF ¶ 52. AR 12991-13388. EPA commented on the draft in June of that year. AR 8312-29. The comment letter expressed concern about the impacts of the project, particularly to the Little Coal River watershed. AR 8313. However, the letter also noted in several places that the agency was encouraged by the progress that Mingo Logan had made to date, and it voiced optimism that EPA could work with the Corps, federal and state agencies, and Mingo Logan to address its concerns and develop appropriate mitigation plans, as well as a Little Coal River cumulative impact assessment and restoration plan. Id. at 8314-15.
The Corps released the final EIS in September 2006, and EPA again submitted comments by letter. AR 8330-34, 34962-35342. The comment letter again included concerns about potential adverse impacts to the Little Coal watershed and gaps in the mitigation plan, but alsoacknowledged Mingo Logan's progress in reducing impacts and EPA's willingness to work with the responsible agencies to resolve its concerns prior to a section 404 permit decision. AR 8331-32.
The Corps responded to the concerns expressed in EPA's comments to the final EIS. AR 23657-62, 24637-43. And through December 2006, representatives from EPA, including William J. Hoffman, Director of the Office of Environmental Programs Environmental Assessment and Innovation Division of the EPA, and from the Corps continued to communicate with one another about the Spruce No. 1 Mine proposal. AR 23084-109, 23657-62, 24424, 24619-25, 24637-43. Although the communications establish that EPA had some lingering technical concerns, they also establish that EPA intended to "work together" with the Corps to address them. AR 23085. In a November 2, 2006 email to Teresa Spagna of the Corps, Mr. Hoffman expressed that "we have no intention of taking our Spruce Mine concerns any further from a Section 404 standpoint . . . ." Id.
On January 22, 2007, the Corps issued Mingo Logan a section 404 permit for the Spruce project. AR 25763-77. The permit authorized Mingo Logan to discharge dredged or fill material into stream segments, including Pigeonroost and Oldhouse Branches, until December 31, 2031. AR 25763-68. It also bound Mingo Logan to carry out certain post-project stream restoration and compensatory mitigation efforts. AR...
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