Stream buffer zone rule could go bye-bye

 Posted by on September 12, 2013
Sep 122013

Judge in D.C. indicates desire to set aside reg for failure to consult

A 2008 rule designed to protect streams from the impact of coal mining will probably be set aside because the Office of Surface Mining did not consult with the Fish and Wildlife Service on the regulation's impact on listed species.

That certainly appeared to be the inclination of U.S. District Judge Barbara J. Rothstein, who held a status conference on legal challenges to the Stream Buffer Zone rule today (Thursday, Sept. 12) in her courtroom in Washington, D.C. (National Parks Conservation Association and Coal River Watch v. Jewell, 09-115 BJR, D.D.C.).

Nothing of import has happened in the case for about three years, Rothstein noted, which has had the effect of leaving  the 2008 rule in place, despite numerous flaws.

The judge said that as she was reading through the briefs prior to the hearing, "it crossed my mind that it was time for some rulings in the case."

Later, near the end of the approximately one-hour status conference, she said the case was "an example of what happens" when a case is stayed for a long time: "It doesn't get better, it just gets worse."

The government has asked Rothstein to vacate the 2008 rule and leave the 1983 rule in its place while OSM goes through another public comment period in an attempt to refashion an acceptable rule. In addition to the failure to consult, OSM recently conceded it had misplaced thousands of (admittedly, identical) public comments.

Invalidation would be acceptable to NPCA but not, it appears, to another group of plaintiffs led by Coal River Mountain Watch, which wants Rothstein to decide all the issues in the case, not just the ESA claims (Coal River Mtn. Watch v. Jewell, 08-2122). Those plaintiffs' attorney said the rule was harming people today.

"We would submit you have to consider all the deficiencies in the rule," he said.

The National Mining Association and its allies want the judge to keep the 2008 rule in place. Their attorney, Kirsten Nathanson of Crowell & Moring, argued that Rothstein should defer to an earlier ruling by District Judge Henry Kennedy, who had declined to vacate the rule.

But Rothstein wasn't fond of the "vacatur" terminology, preferring instead to speak of "setting aside" an "invalid" rule. Longtime Justice Department attorney Mark Brown said there was no dispute among the parties that OSM hadn't consulted under Section 7 of the ESA.

Here's the "minute order" posted in the case docket today:

MINUTE ORDER: The parties having appeared for a status conference before Judge Barbara Jacobs Rothstein on September 12, 2013 at 10:00 am, it is HEREBY ORDERED that in the interest of expediting the issues so that they coincide with the companion case, National Parks Conservation Association v. Jewell, Case No. 9-115, the scheduling order [Dkt. Nos. 41 and 42] is modified accordingly: (1) all motions for summary judgment (including cross motions) will be filed on or before October 15, 2013; (2) all responses will be filed on or before November 15, 2013; and (3) all replies will be filed on or before December 1, 2013. Signed by Judge Barbara Jacobs Rothstein on 9/12/13. (Reed, Heather) (Entered: 09/12/2013)



Apr 252013

"W.Va. members of Congress promise action against EPA" is the headline in the West Virginia Record, whose article noted that 80 percent of the state's congressional delegation had posted press releases criticizing the D.C. Circuit's decision that said EPA had the authority to partially revoke a permit for the Spruce Mine. (Only Jay Rockefeller appears not to have weighed in.)

Rep. Nick "Joe" Rahall said he would "soon be reintroducing the Clean Water Cooperative Federalism Act, legislation the House approved last year to prevent the EPA from using the guise of clean water as a means to disrupt coal mining as they have now done with respect to the Spruce Mine in Logan County, West Virginia."

Coverage of the case includes this account from James Bruggers of the Louisville Courier-Journal, who notes that the day before the D.C. Circuit ruling, the Cincinnati-based Sixth Circuit "invalidated a 2007 version of a streamlined permit used by the Corps to authorize the dumping of coal-mining waste into hundreds of miles of Appalachian streams." (Corps permit info.)

Conclusion of Sixth's ruling:

Though we generally give greatest deference to an agency’s “complex scientific determination[s] within its area of special expertise,” Balt. Gas & Elec. Co., 462 U.S. at 103, we may not excuse an agency’s failure to follow the procedures required by duly promulgated regulations, see, e.g., Motor Vehicles Mfrs. Ass’n, 463 U.S. at 43. During oral argument, the Corps repeatedly objected to the feasibility of Riverkeeper’s demands.

This policy argument misses the point. After opting for streamlined nationwide permitting, the Corps took the easier path of preparing an environmental assessment instead of an environmental impact statement. Having done so, it needed to follow the applicable CWA and NEPA regulations by documenting its assessment of environmental impacts and examining past impacts, respectively. Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards. We may not supply a reasoned basis for the agency’s action that the agency itself has not given. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).

We hereby invalidate permit 21 as arbitrary and capricious, 5 U.S.C. § 706(2)(A), but stay this ruling for 60 days to allow the parties and the district court an opportunity to assess the ramifications of this ruling on existing projects and potential remedies.


  • Sen. Joe Manchin
  • McKinley Criticizes Court Decision in Spruce Mine Case (from Rep. David McKinley, R-WV-1) (4/23/13)
    Urges Legislative Action to Stop EPA Authority
  • Rahall: Unprecedented Authority Given to EPA in Spruce Mine Decision (Rep. Nick Rahall, D-WV-3)
  • Capito Condemns Federal Appeals Ruling on EPA Overreach (Office of Shelley Moore Capito, R-WV-2)
  • Sierra Club, et al.: "The decision reverses the lower court’s contrary ruling, and is a major blow to the coal industry’s attempt to prevent EPA from protecting communities from the harm caused by mountaintop removal mining in Appalachia."
  • National Mining Assn.: "By upholding the Environmental Protection Agency's view that it has unbounded authority to retroactively revoke permits issued by another federal agency, the U.S. Court of Appeals for the District of Columbia has pulled the regulatory rug out from under the feet of U.S. companies, eliminating the certainty of permits and upending an already complicated permitting process. As a result, a cloud of uncertainty now hangs over any project and companies will no longer have the assurance required to encourage investments, grow our economy and create U.S. jobs."
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