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Millennium Bulk Terminals-Longview, LLC v. State

ELR Citation: 48 ELR 20148
Nos. 17-090, (Wash. Pollution Control Hearings Bd., 08/15/2018)

A state review board affirmed the Washington Department of Ecology's denial of a CWA §401 certification requested by a coal company for a proposed coal export terminal. The company argued that its request was categorically exempt from the State Environmental Policy Act (SEPA), and that the department's use of substantive SEPA authority to deny the certification exceeded the scope of its authority under §401 of the CWA. But the review board disagreed, concluding that categorical exemptions under SEPA do not apply to actions that are a mixture of exempt and non-exempt activities and that §401 of the CWA does not preclude the department's use of substantive SEPA in this instance. The review board therefore granted summary judgment to the department.