Apr 202012
 

Friday, April 20, 2012 – A federal judge ruled today that when he decides a mining industry challenge to EPA-issued guidance on 404 permits, he would take into consideration four documents not presently in the record (Nat’l Mining Ass’n v. Jackson, 10-1220 RBW, D.D.C.).

But at the same time, U.S. District Judge Reggie B. Walton rejected the plaintiffs’ motion to add eight other documents to the record:

[T]he crux of the plaintiffs’ argument seems to be that because the documents predate the issuance of the Final Guidance and were either authored by EPA employees or sent to EPA employees by the [Kentucky Division of Water], they should be added to the administrative record. See id. at 9-10. It is not enough for the plaintiffs to assert that “the EPA knew about these” documents, Pls.’ Reply at 4; rather, the plaintiffs “must offer non-speculative grounds for their belief that the [agency] actually considered [the documents in question].” Marcum, 751 F. Supp. 2d at 81 (emphasis added). And the plaintiffs have not done so here.

“The court will consider the final four documents at issue as extra-record evidence because they shed light on an issue not addressed by the administrative record itself,” Walton said. “While the administrative record is not so bare as to frustrate judicial review as to all of the plaintiffs’ claims, it is entirely bare as to how the EPA has applied the Final Guidance.”

Walton, who has already ruled previously in the case, said he would “consider these documents in connection with the plaintiffs’ claim that the EPA has applied the Final Guidance as a binding rule.”

Those four documents are:

  • Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated Sept. 28, 2011 (Document 9)
  • Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated Sept. 28, 2011 (Doc. 10)
  • Affidavit of KDOW employee R. Bruce Scott (Doc. 11)
  • Letter from NPDES Branch, EPA Region III employee Evelyn S. MacKnight, to Division of Mining & Reclamation, West Virginia Department of Environtmental Protection (“WVDEP”) employee Jeffrey Parsons, dated Nov. 20, 2011 (Doc. 12)

Walton added that “[h]aving concluded that the four documents postdating the issuance of the Final Guidance are appropriate for consideration as extra-record evidence,” he did nlot need to address the parties’ arguments over whether he should actually “take judicial notice of these documents.”

Here’s a list of the eight documents that did not make the cut. They are numbered according to their document number in the motion:

  1. Permitting Procedures for Determining ‘Reasonable Potential’, authored by the Kentucky Natural Resources and Environmental Protection Cabinet, Division of Water, dated May 1, 2000
  2. Letter from EPA employee Douglas F. Mundrick, to R. Bruce Scott, Kentucky Division of Water (“KDOW”) employee, dated July 7, 2000
  3. Letter from EPA employee James D. Giattina, to KDOW employee Sandy Gruzesky, dated Dec. 21, 2009, commenting on proposed National Pollutant Discharge Elimination System (“NPDES”) Draft Permit for Premier Elkhorn Coal Company
  4. E-mail from EPA employee Chris Thomas to KDOW employe Sandy Gruzesky, dated Dec. 21, 2009
  5. E-mail from EPA employe Sharmin Syed, to KDOW employee R. Bruce Scott, dated Nov. 5, 2010 and attached spreadsheet
  6. E-mail and attached spreadsheet from KDOW employee R. Bruce Scott, to EPA employees Stan Meiburg, Jim Giattina, Chris Thomas et al., dated Jan. 10, 2011
  7. E-mail and attached spreadsheet from KDOW employee R. Bruce Scott, to EPA employees Stan Meiburg, Jim Giattina, Chris Thomas et al., dated Jan. 12, 2011, and
  8. E-mail from EPA employee Chris Thomas, to KDOW employee Sandy Gruzesky, dated March 10, 2011

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