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Energy and Environment Monitor

Mingo Logan Appeals Adverse District Court Decision on § 404 Permit “Veto” - Again

June 18, 2015

By: Robert G. McLusky

Mingo Logan Coal Company obtained a Clean Water Act § 404 permit from the Corps of Engineers in January 2007.  The permit authorized fills associated with the Spruce Mine in Logan County, West Virginia.  In January 2011, USEPA exercised its authority under CWA § 404(c) and “vetoed” the permit.  Mingo Logan challenged the veto in the D.C. District Court, claiming both that USEPA’s veto” was untimely and that it was otherwise unlawful.  In March 2012, the District Court agreed that USEPA’s action was untimely, but the D.C. Circuit Court later overturned that holding.  It ruled that the statutory language, which authorizes USEPA to act “whenever it determines” that the proposed filling will have “unacceptable adverse effects …,” allowed USEPA to act at any time—even after the Corps of Engineers has issued a permit.  The Appeals Court then remanded Mingo Logan’s remaining challenges to the District Court.

In September 2014, the District Court rejected Mingo Logan’s remaining challenges to the permit, largely deferring to USEPA.  Mingo Logan has challenged that ruling in the D.C. Circuit Court and filed its opening brief June 12, 2015.

The article was authored by Robert G. McLusky, Jackson Kelly PLLC

 

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