• Mark Ryan

Pebble Mine 404(c) Challenge is rejected, WOTUS and an SPPCC Settlement

The judge in the Pebble Mine case yesterday ruled that plaintiffs could not challenge EPA's withdrawal of the 404(c) veto of the Pebble Mine permit because it was akin to an enforcement action, therefore unreviewable under the APA. This ruling creates the interesting dichotomy where the mine can challenge the issuance of the 404(c), but an environmental group cannot challenge its withdrawal. Expect an appeal.

Rumor has it that the new WOTUS rule will finally be published this week in the Federal Register. I'll report out with a link as soon as I see it.

Bristol Bay Economic Development Corps. v. EPA, 2020 WL 1905290 (D. Ak. 2020) (on motion to dismiss in case challenging EPA withdrawal of its 404(c) for Pebble Mine, held that 404(c) is akin to an enforcement action because it prohibits or restricts an individual permit holder, and is therefore unreviewable under the APA; 40 C.F.R. § 231.5 does not require EPA to publicly explain its rationale to withdraw the 404(c))

United States v. Grimmel Industries, Inc., 2020 WL 1879468 (D. Me. 2020) (granting motion to enter consent decree in case involving allegations of violating terms of § 402 permit and SPCC regs; defendants will pay a $250,000 penalty, of which $25,000 will be allocated to the Oil Spill Liability Trust fund)

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