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Mingo Logan Coal Co. v. United States Environmental Protection Agency

ELR Citation: 43 ELR 20094
Nos. 12-5150, (D.C. Cir., 04/23/2013)

The D.C. Circuit reversed a lower court decision that EPA exceeded its authority under CWA §404(c) when it invalidated an existing U.S. Army Corps of Engineer permit authorizing a mining company to discharge fill material from its mountaintop coal mine into two nearby streams. In its post-permit veto, EPA withdrew the specification of those two streams as disposal sites, effectively nullifying the permit. The lower court ruled that CWA §404 does not give EPA the power to render a permit invalid once it has been issued by the Corps. But §404 imposes no temporal limit on the EPA Administrator's authority to withdraw the Corps' specification; instead, it expressly empowers the Administrator to prohibit, restrict, or withdraw a specification "whenever" she makes a determination that the statutory "unacceptable adverse effect" will result. Using the expansive conjunction "whenever," Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time. The court therefore reversed the lower court insofar as it held that EPA lacks statutory authority under CWA §404(c) to withdraw a disposal site specification post-permit. On remand, the court may address the merits of the mining company's APA claims.