Earlier today the U.S. District Court for the District of Columbia issued a decision vacating in its entirety the federal Environmental Protection Agency’s revocation of a permit issued by the Huntington District of the Corps of Engineers for the Spruce No. 1 Mine in Logan County, West Virginia. The Corps issued the Clean Water Act Section 404 permit to Mingo Logan Coal Co. in January 2007. In September 2009, EPA initiated the process to “veto” the permit, referred to as a Section 404(c) action, even though it had been in place for two years and the operation was active. EPA completed the administrative process to revoke the permit on January 13, 2011. Mingo Logan sued the agency in federal court alleging that EPA’s authority with respect to CWA Section 404 permit was confined to vetoing a permit before the Corps completed its permit analysis and actually issued the permit. Judge Amy Berman Jackson agreed, finding that “the Court cannot find that EPA’s interpretation of Section 404(c), extending its veto authority indefinitely after a permit has been issued [by the Corps], is reasonable.” Judge Jackson accused the EPA of “magical thinking” in assuming it could exercise the Section 404(c) veto authority at any time and issued an order finding the permit issued by the Corps for the Spruce No.1 Mine “remains valid and in full force.”
Both the West Virginia Coal Association and the State of West Virginia filed amicus briefs supporting Mingo Logan’s case against EPA.
For a copy of the decision contact jbostic@wvcoal.com