D.C. Circuit Holds That EPA Can Withdraw §404 Permit Site Specifications Post-Permit

Posted:  June 7, 2013

In Mingo Logan Coal Co. v. U.S. E.P.A., 714 F.3d 608, the United States Court of Appeals, District of Columbia Circuit, held that the EPA had authority under Clean Water Act to withdraw a §404 disposal site specification permit issued approximately three years earlier by the United States Army Corps of Engineers (Corps). 

Plaintiff Mingo Logan Coal Company applied for and was granted a §404 permit (33 U.S.C. §1344) by the Corps.  The permit allowed plaintiff to discharge dredged or fill material from a coal mine into three streams and at least some of their tributaries, thereby approving those streams as disposal sites for §404 purposes.  Four years later, EPA asserted its authority under §404(c) to “withdraw” the disposal site specifications for two of the streams.  Plaintiff was thereby prohibited from discharging into those two streams, and subsequently filed a legal action in the United States District Court for the District of Columbia to challenge EPA’s action. 

Plaintiff argued that EPA lacked statutory authority to withdraw a site specification post-permit and that EPA’s decision to “withdraw” was arbitrary and capricious and, therefore, not allowed under the Administrative Procedure Act.  The district court granted summary judgment in favor of the plaintiff on the grounds that EPA lacked statutory authority to withdraw the site specification post-permit.  It did not rule on whether the EPA’s action was arbitrary or capricious. The matter was appealed to the D.C. Circuit. 

The D.C. Circuit reversed the lower court ruling, holding that under the Clean Water Act the EPA had the authority to withdraw site specifications post-permit.  The D.C. Circuit did not consider plaintiff’s argument that EPA’s action was arbitrary and capricious.  Instead, it remanded the matter for further proceedings. 

In reaching its conclusions, the D.C. Circuit stated, in part, the following:

Section 404 imposes no temporal limit on the Administrator’s authority to withdraw the Corps’s specification but instead expressly empowers him to prohibit, restrict, or withdraw the specification “whenever” he makes a determination that the statutory “unacceptable adverse effect” will result. . . . Using the expansive conjunction “whenever,” the Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time.  . . . . Thus, the unambiguous language of subsection  404(c) manifests the Congress’s intent to confer on EPA a broad veto power extending beyond the permit issuance.  This term is further buttressed by subsection 404(c)’s authorization of a “withdrawal” which, as EPA notes, is “a term of retrospective application.”  EPA can withdraw a specification only after it has been made.