As part of its efforts to control the impact of mountaintop removal mining, EPA has implemented a number of changes – both procedural and substantive – into how § 404 permit applications for such activities will be reviewed. None of these changes have gone through notice and comment rulemaking. As we previously noted, Judge Reggie Walton already expressed skepticism about EPA’s mountaintop removal guidance. Last week, in the latest decision in National Mining Association v. Jackson, Judge Walton shot down EPA’s “Enhanced Coordination Process”, or ECP, for reviews of section 404 permit applications.

Although EPA described the modifications as the types of procedural changes that are within agencies’ inherent authority, Judge Walton was having none of it. He concluded that EPA’s authority under the CWA is subject to certain unambiguous limitations. 

"The statutory language explicitly establishes the Secretary of the Army, acting through the Corps, as the permitting authority, which strike the Court as an express limitation. … The statute is therefore not ambiguous…. Thus, if a responsibility involving the permitting process has not been delegated to the EPA by Congress, that function is vested in the Corps as the permitting authority."

Under the Multi—Criteria Resource Assessment, or MCIR [don’t ask me why it’s “MCIR” and not “MCRA”], EPA, not the Corps, initially applies § 404(b) guidelines, and EPA directs the Corps how to process mountaintop removal § 404 permit applications.  To Judge Walton, these changes exceed EPA’s statutory authority under the CWA.

Judge Walton also concluded that the ECP, including the MCIR violated EPA’s obligation to provide notice and an opportunity to comment on the change in rules that the ECP represents. For those of you who are not APA geeks, the APA exempts from the obligation to provide notice and comment “rules of agency organization, procedure, or practice.” While the ECP sounds procedural – after all, the word “process” is in the label – Judge Walton concluded that the rules were substantive and required notice and comment under the APA. To Judge Walton,

"The fact that the creation of the MCIR Assessment removed the task of applying the 404(b)(1) guidelines to pending permits from the Corps and bestowed it upon the EPA signifies a substantive, rather than a procedural, change to the permitting framework. … [I]t is apparent that the MCIR Assessment and the EC Process “effectively amend” the Section 404 permitting process by conferring additional reviewing authority on the EPA – authority that the statute reserves for the Corps. American Mining therefore compels a finding that the MCIR Assessment and the EC Process are legislative rules." 

Another day, another defeat for EPA. The APA lives.