IN THE UNITED STATES
DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
WEST VIRGINIA
AT CHARLESTON
KENTUCKIANS FOR
THE COMMONWEALTH, INC.
Plaintiff,
v. CIVIL
ACTION NO.
COLONEL JOHN
RIVENBURGH, District
Engineer, U.S.
Army Corps of Engineers,
Huntington
District, LIEUTENANT GENERAL
ROBERT B.
FLOWERS, Chief of Engineers and
Commander of the
U.S. Army Corps of Engineers, and
MICHAEL D. GHEEN,
Chief of the Regulatory
Branch,
Operations and Readiness Division,
U.S. Army Corps
of Engineers, Huntington
District,
Defendants.
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
INTRODUCTION
1.
This action seeks review of a decision by
the Huntington District office of the U.S. Army Corps of Engineers (“Corps”) to
authorize Martin County Coal Corporation (“MCCC”), pursuant to a Nationwide
general permit under Section 404 of the Clean Water Act, 33 U.S.C. § 1344, to
fill over six miles of streams in Martin County, Kentucky with waste rock and
dirt from surface coal mining activities. This decision was made in violation
of the Corps’ statutory duties under the Clean Water Act (“CWA”), 33 U.S.C. §
1344, the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq.
(“NEPA”), and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 553,
706(2)(A). Defendants have no authority
under the CWA to issue permits to dispose of waste rock from surface coal
mining activities in streams.
Alternatively, even if Defendants had such authority, Defendants cannot
authorize that disposal (1) pursuant to a Nationwide general permit rather than
requiring an individual permit under the CWA, (2) without preparing an
Environmental Impact Statement under NEPA for the MCCC project and for NWP 21
generally, (3) without analyzing measures required by Defendants’ CWA
regulations to avoid or minimize impacts on streams, and (4) without waiting
for the U.S. Environmental Protection Agency to complete proceedings under the
CWA to veto that permit. Plaintiff
seeks (1) a declaration that the Corps has violated its statutory and
regulatory responsibilities, (2) an injunction requiring the Corps to revoke or
suspend its authorization of MCCC’s activities under NWP 21, (3) an injunction
forbidding the Corps from authorizing any further coal mining valley fills
pursuant to NWP 21 until an EIS has been performed on that permit, and (4) an
award of costs and expenses, including reasonable attorneys’ and expert witness
fees.
JURISDICTION
AND VENUE
2.
This action arises under the CWA, 33 U.S.C.
§§ 1251, et seq., NEPA, 42 U.S.C. §§ 4321 et seq., the APA, 5
U.S.C. §§ 701-706, and the All Writs Act, 28 U.S.C. § 1651(a). The Court has subject matter jurisdiction by
virtue of 28 U.S.C. §§ 1331, 1361, 1551, 2201 and 2202.
3.
Venue is appropriate in this judicial
district pursuant to 28 U.S.C. § 1391(e) because defendants Riverburgh and
Gheen reside in this District, and a substantial part of the events or
omissions giving rise to the claim occurred in this District, including
Defendants’ decisions to grant authorization for MCCC’s stream-filling
activities.
PARTIES
4.
Defendant Lieutenant General Robert B. Flowers
is the Chief of Engineers and Commander of the U.S. Army Corps of
Engineers. He is charged with the
supervision and management of all Corps decisions and actions, including the
evaluation of Corps decisions and actions under NEPA and Section 404 of the
CWA, which are the subject of this lawsuit.
5.
Defendant Colonel John Rivenburgh is the
District Engineer for the Huntington District office of the U.S. Army Corps of
Engineers in Huntington, West Virginia.
The District office is responsible for issuing permits for the
discharges of dredged and fill material in Kentucky and West Virginia under
Section 404 of the CWA, including the proposed discharges at issue in this
case.
6.
Defendant Michael D. Gheen is the Chief of
the Regulatory Branch, Operations and Readiness Division, in the Huntington
District office of the U.S. Army Corps of Engineers in Huntington, West
Virginia. He is responsible for issuing
permits for the discharge of dredged and fill material in Kentucky and West
Virginia under section 404 of the CWA, including the proposed discharges at
issue in this case.
7.
Plaintiff Kentuckians for the Commonwealth,
Inc. (KFTC) is a nonprofit corporation organized under the laws of the
Commonwealth of Kentucky, and is a statewide membership organization with
approximately 3,000 members. KFTC’s
purposes include promoting social justice and quality of life for all
Kentuckians, such as by addressing problems of land and mineral use and
ownership, and the participation of citizens in promoting democratic institutions.
8.
KFTC has members, including Mick McCoy, Nina
McCoy, Melania Preece, and Patty Wallace, who visit, live near, drive by and/or
fly over areas of the state that are visibly affected by surface coal mining
activities, including the area to be affected by MCCC’ proposed mining
operations in Martin County, Kentucky.
Those activities change the natural landscape in ways that offend these
members’ aesthetic and environmental interests.
FACTS
9.
On April 28, 2000, MCCC submitted a pre-construction
notification to the Huntington District office of the Corps for the placement
of fill material into 33,120 feet (6.3 miles) of streams to construct 27 valley
fills in the watersheds of Little Beech Fork and Rockhouse Fork in Martin
County, Kentucky. These valley fills
would contain excess spoil and waste rock from MCCC’s proposed surface coal
mining operations near Davella, Martin County, Kentucky.
10.
The primary purpose of MCCC’s valley fills
is to dispose of waste material, i.e., excess spoil and waste rock.
11.
On May 10, 2000, the Huntington District
office of the Corps notified the U.S. Environmental Protection Agency (EPA),
the U.S. Fish and Wildlife Service (FWS), and the Kentucky Division of Fish and
Wildlife Resources (KDFWR) of MCCC’s proposal.
12.
In May 2000, EPA, FWS and KDFWR filed
comments objecting to MCCC’s proposal and requesting denial of the nationwide
permit. FWS stated in its comments that
the proposal would result in “significant individual and cumulative impact,”
and that “on-site stream restoration plans are deficient.” FWS also stated that “[i]n cases where 25
percent or more of any particular watershed has been disturbed, the potential
for significant downstream degradation is high.” EPA stated in its comments that the cumulative impacts of the
proposal were a “significant concern,” because it would impact more than 25% of
seven different watersheds. KDFWR
stated in its comments that the proposed stream loss “is a major impact to the
hydrology and health of downstream ecosystems.”
13.
On June 20, 2000, the Huntington District
office of the Corps granted authorization for MCCC’s project under Nationwide
Permit 21 and Section 404 of the Clean Water Act.
14.
Under this authorization, 6.3 miles of
stream reaches in Upper and Lower Twin Branch, Lick Fork, Porter Camp Branch,
Bent Branch, Big Rough Branch, and unnamed tributaries to Little Beech Fork and
Rockhouse Fork will be destroyed by the placement of fill material in those
streams.
15.
In addition, this authorization also allows
the construction of in-stream sediment ponds below the valley fills. This activity will change the stream flow on
an additional 16,570 feet (3.1 miles) of streams between the toes of the valley
fills and the outfall of the sediment ponds.
16.
MCCC did not demonstrate in its application
to the Corps for this authorization that it had attempted to avoid or minimize
(1) the placement of fill material in these 27 valley fills, (2) the adverse
environmental impacts of such placement, or (3) the adverse impacts on the
aquatic system of flow changes caused by sediment ponds downstream from such
fills.
17.
The Corps has not required any compensatory
mitigation to replace the aquatic functions that would be lost or impacted by
this project, other than standard erosion control best management practices
(BMPs) and proposals to “reclaim” the stream reaches between the toes of the
valley fills and their downstream sediment ponds. The Corps did not require specific site plans for channel
reclamations. The Corps did not survey
the existing stream features or collect reference data to document the physical
and biological stream characteristics that should serve as design templates and
provide the metrics by which reclamation success should be evaluated. Pond reclamation, which is required prior to
final bond release of the mining area, and BMPs cannot replace the on-stream
and off-site ecosystem functions that will be lost or otherwise impacted by
filling these headwater streams.
18.
On January 2, 2001, the Regional
Administrator of EPA Region 4, John Hankinson, informed Defendant Rivenburgh by
letter that these measures are not sufficient compensatory mitigation.
19.
Mr. Hankinson stated in his January 2, 2001
letter that EPA was commencing action under Section 404(c) of the CWA to review
the project. He stated that MCCC’s
project would result in “an unacceptable adverse impact to wildlife and
recreational areas, and thus meets the statutory standard for the use of
Section 404(c) authority.” He also
found that “the discharges of fill material authorized for this project present
an imminent danger of irreparable harm to wildlife and recreational areas.”
20.
Consistent with standard practice in Section
404(c) proceedings, and with Corps and EPA regulations, Mr. Hankinson requested
in his January 2, 2001 letter that the Corps “suspend authorization for the
MCCC project under 33 CFR 325.7 so that no discharges of dredged or fill
material into waters of the United States occur until this action is concluded
(40 CFR 231.7).”
21.
On January 9, 2001, Defendant Rivenburgh
informed Mr. Hankinson by letter that the NWP 21 authorization would not be
suspended. As a result, the Corps has
authorized the MCCC project to proceed even while EPA is working through the
Section 404(c) process to determine whether the authorization should be
withdrawn.
22.
On January 11, 2001, the Deputy
Administrator of EPA, W. Michael McCabe, wrote a letter to the civilian head of
the Corps, the Assistant Secretary of the Army for Civil Works, Joseph
Westphal, asking him to overrule Defendant Rivenburgh and grant the
suspension. Mr. McCabe stated that it
was “incredibl[e]” that the Corps believed that the MCCC project would only cause
minimal adverse environmental impacts and qualified for an NWP 21. Mr. McCabe stated that EPA had invoked its
404(c) veto authority only 11 times since 1972 and once in the last ten years,
and that it takes this action “in only the most serious circumstances out of an
unequivocal concern for the protection of human health and the
environment.” He further stated that it
made “little sense” and was “absurd” for the project to proceed, or perhaps
even be completed, before EPA decided whether to stop it.
23.
Despite this EPA request for reconsideration,
Defendants have refused to suspend the MCCC’s authorization for the project.
24.
Plaintiff’s members are affected by the loss
and degradation of waters in Kentucky and West Virginia resulting from the
valley fills associated with surface mining operations. In these operations, surface mine operators
remove overburden from mountains to expose and remove coal seams.
25.
The waste rock, or spoil, that is not placed
back on the mountain is dumped in nearby valleys and streams, creating huge
“valley fills” as waste disposal areas.
26.
Surface coal mines in Kentucky and West
Virginia often bury the headwaters of streams.
Headwaters begin in the hollow or valley between the mountains,
beginning their flow as ephemeral streams, then becoming intermittent, and then
perennial.
27.
These streams contain aquatic life and are
often used by nearby residents for recreational, domestic, and other purposes.
28.
The number and size of valley fills are
increasing and are burying headwaters at an alarming rate. The United States Fish and Wildlife Service
(FWS) estimated in March 1998 that 354.8 miles of streams have been approved
for filling and the placement of siltation structures in Eastern Kentucky coal
fields through July 1995. FWS stated
that this stream “degradation affects invertebrate abundance and diversity,
nutrient cycling, energy sources for biotic communities, and other factors that
are essential components of healthy stream systems.” FWS also estimated in this same report that 469.3 miles of
streams have been filled or approved for filling in just five West Virginia
watersheds through mid-1998.
29.
The environmental and social impacts of
surface coal mining extend well beyond the streams that are actually
filled. Thousands of acres of forests
are destroyed. The communities near
these operations are adversely impacted by blasting, dust, noise, and the
degradation of stream and well water.
30.
Since at least 1990, the Corps has followed
a pattern and practice of issuing Nationwide Permits (“NWP”) 21 and/or 26 under
section 404 of the CWA for valley fills associated with surface coal mining
activities in Kentucky and West Virginia.
31.
In 1998, citizens sued the Corps in U.S.
District Court for the Southern District of West Virginia and challenged, inter
alia, the legality of the Huntington District Office of the Corps’ practice
of issuing NWP 21 permits for valley fills in West Virginia. Bragg v. Robertson, Civil No.
98-0636.
32.
In December1998, the Corps entered into a
Settlement Agreement with the plaintiffs in the Bragg case. This Agreement provided that the Corps, in
conjunction with other federal and state agencies, would prepare an
Environmental Impact Statement under NEPA “on a proposal to consider developing
agency policies, guidance, and coordinated agency decision-making processes to
minimize, to the maximum extent practicable, the adverse environmental effects
to waters of the United States and to fish and wildlife resources affected by
mountaintop mining operations, and to environmental resources that could be
affected by the size and location of excess spoil disposal sites in valley
fills.” That EIS is still being
prepared and has not yet been issued in draft or final form.
33.
In this Agreement, the Corps also agreed to
do the following:
Prior to the completion of the EIS process and issuance of any
record(s) of decision, any application for mountaintop mining operations in the
State of West Virginia that would result in more than minimal adverse effects
in waters of the United States will require an individual Corps permit under
CWA section 404 for all overburden and other fill material (hereafter “fill”)
in waters of the United States. As a
general matter, any mining operations in the State of West Virginia that
proposes to discharge fill in waters of the United States draining a watershed
of 250 acres or more shall be considered to have more than minimal adverse
effects in waters of the United States and require an individual CWA Section
404 permit. The Corps and EPA will
also specifically evaluate the number of watersheds to be affected by the
proposed discharge of fill material to inform the Corps’ determination of
whether or not the cumulative adverse impact to waters associated with a
particular mining operation is minimal.
In addition, if the Corps determines that a discharge of fill
material into waters of the United States draining a watershed of 250 acres or
less would cause more than minimal adverse environmental effects (e.g.,
on endangered or threatened species of Federal trust resources under the FWCA)
the Corps will require the processing of an individual CWA section 404 permit.
[emphasis added]
The Huntington District Office of the Corps is a party to this
Agreement.
34.
In the Bragg case, the plaintiffs
challenged the proposed issuance of a NWP 21 permit authorization to Hobet
Mining, Inc. for its Spruce No. 1 mountaintop removal mine. That surface coal mining operation would
have created four valley fills burying 7.8 miles of streams. In July 1999, the Huntington District Office
of the Corps withdrew its proposed authorization for this mine, stating in a
letter to Hobet that the Corps had “virtually no chance” of successfully
defending that proposed authorization.
Hobet agreed to submit an application for an individual section 404
permit for that mine.
35.
The Corps has never documented or analyzed
pursuant to NEPA or its own regulations the regional or site‑specific
impacts of NWP 21 permits on streams in Kentucky and West Virginia. Nor has it added any regional conditions for
NWP 21 permits in West Virginia.
Instead, the Corps has a longstanding practice of approving surface coal
mining operations and associated valley fills in Kentucky and West Virginia
without assessing their cumulative impacts.
36.
The Corps has never prepared an EIS
concerning the environmental impacts of surface coal mining operations and
associated valley fills in Kentucky and West Virginia. The Corps prepared an Environmental
Assessment (EA) in 1996 on their decision to issue NWP 21 for the five-year
period from December 1996 to December 2001.
37.
Since that EA was issued, the Corps has
obtained new information on these impacts, including information from FWS
stream filling surveys, and as a result of work by federal agencies on the EIS
on surface coal mining operations. This
information shows that these activities, both individually and cumulatively,
constitute a major federal action that will affect the quality of the human
environment in a significant manner and to a significant extent that has not
previously been considered.
38.
For example, in a February 2001 draft report
entitled “Kentucky Mountaintop Mining Stream Characterization,” EPA found that
“benthic macroinvertebrate communities at all the test sites [in watersheds
with mountaintop mining/valley fill operations] were significantly impaired”
and stated that:
In summary, impacts of mountaintop mining and valley fill activities in
eastern Kentucky were evident based on stream biological and habitat
indicators. Mining related sites
generally had higher conductivity, greater sediment deposition, smaller
particle sizes, and a decrease in pollution sensitive macroinvertebrates with
an associated decrease in taxa diversity compared to reference sites. Similar results have been reported for other
studies conducted in mining areas. Such
disruptions in the biological processes of first- and second-order streams can
displace the development of a fully stable ecosystem farther downstream than normal. In turn, these streams and rivers may
support fewer fish and other taxa which are recreationally or commercially
important.
39.
In these circumstances, an EIS is required
before any additional authorizations under NWP 21 are issued for such operations.
STATUTORY
AND REGULATORY BACKGROUND
40.
The CWA was enacted to “restore and maintain
the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To accomplish this goal, the CWA prohibits
the discharge of any pollutant, including dredged spoil or other fill material,
into navigable waters unless authorized by a CWA permit. Id., § 1311(a).
41.
The CWA authorizes the Corps to regulate the
discharge of dredged or fill material into the navigable waters of the United
States through the issuance of permits under CWA section 404. Id., § 1344(a). The Secretary of the Army has delegated to
the Chief of Engineers of the Corps the authority to issue or deny section 404
permits. 33 C.F.R. § 323.6(a).
42.
The Corps defines “fill material” as “any
material used for the primary purpose of replacing an aquatic area with
dry land or of changing the bottom elevation of a waterbody.” 33 C.F.R. § 323.2(e) (emphasis added). This definition also states that this term
“does not include any pollutant discharged into the water primarily to dispose
of waste, as that activity is regulated under section 402 of the Clean Water
Act.” Id.
43.
The Corps is authorized to issue two types
of permits under the Section 404 program: individual permits and general (or
NWP) permits.
44.
Individual permits are issued following a
“case‑by‑case evaluation of a specific project involving the
proposed discharge(s).” 30 C.F.R. §
323.2(g).
45.
Under Section 404(e) of the CWA, Congress
authorized the Corps to issue general permits on a state, regional or
nationwide basis for certain activities having minimal impacts, in lieu of
individual permit processing. 33 U.S.C.
§ 1344(e). A general permit is issued
on a “nationwide or regional basis for a category or categories of activities .
. . [that] cause only minimal individual and cumulative environmental impacts .
. . .” 30 C.F.R. § 323.2(h)(1)(2).
46.
Any permit issued by the Corps must comply
with the “404(b)(1) Guidelines” published by EPA at 40 C.F.R. Part 230. Those Guidelines establish environmental
criteria to be assessed when making decisions as to whether individual or
general permits should be issued. The
Guidelines require that the activities permitted under a general permit will
have only minimal adverse effects when performed both separately and
cumulatively. 40 C.F.R. §
230.7(a).
47.
The Corps may issue Nationwide Permit 21
(NWP 21) permits for “activities associated with surface coal mining activities
provided they are authorized by the Department of the Interior, Office of
Surface Mining, or by states with approved programs under Title V of the
Surface Mining Control and Reclamation Act of 1977 and provided the permittee
notifies the district engineer in accordance with the ‘Notification’ general
condition.” 33 C.F.R. Part 330, App. A,
¶ 21.
48.
The Corps must review notifications by
applicants of proposed activities under general permits and “may add
activity-specific conditions to ensure that the activity complies with the terms
and conditions of the [nationwide permit] and that the adverse impacts on the
aquatic environment and other aspects of the public interest are individually
and cumulatively minimal.” 33 C.F.R. §
330.1(e)(2).
49.
A Corps District Engineer, such as Defendant
Rivenburgh, retains the authority to “modify, suspend, or revoke a case
specific activity’s authorization under an NWP” based on changes in
circumstances, the adequacy of the specific conditions of the authorization,
“any significant objections to the authorization not previously considered,”
and “cumulative adverse environmental effects occurring under an NWP . .
..” 33 C.F.R. § 330.5(d).
50.
EPA may veto the specification by the Corps
of a site for the discharge or dredged or fill material whenever it determines
that the discharge will have an unacceptable adverse effect on municipal water
supplies, shellfish beds and fishery areas (including spawning and breeding
areas), wildlife, or recreational areas.
33 U.S.C. § 1344(c); 40 C.F.R. § 231.1.
An “unacceptable adverse effect” is defined as an “impact on an aquatic
or wetland ecosystem which is likely to result in significant degradation of
municipal water supplies (including surface or ground water) or significant
loss of or damage to fisheries, shellfishing, or wildlife habitat or
recreational areas.” 40 C.F.R. §
231.2(e).
51.
Where a Corps permit has been issued, and
EPA has reason to believe that a discharge under the permit presents an
imminent danger of irreparable harm to municipal water supplies, shellfish beds
and fishery areas (including spawning and breeding areas) wildlife, or
recreational areas, and that the public health, interest, or safety requires,
EPA may ask the Corps to suspend the permit pending completion of Section
404(c) proceedings. 40 C.F.R. § 231.7.
52.
NEPA is the “basic national charter for
protection of the environment.” 40
C.F.R. § 1500.1(a). Its purpose is “to
help public officials make decisions that are based on understanding of
environmental consequences, and take actions that protect, restore, and enhance
the environment.” Id. § 1500.1(c).
The Council on Environmental Quality (“CEQ”) ‑‑ an agency
within the Executive Office of the President ‑‑ has promulgated
regulations implementing NEPA, which have been adopted by the Corps. See 40 C.F.R. §§ 1500‑1508; see
also 57 Fed. Reg. 43188 (Sept. 18, 1992).
53.
To accomplish its purpose, NEPA requires
that all agencies of the federal government must prepare a “detailed statement”
regarding all “major Federal actions significantly affecting the quality of the
human environment. . . .” 42 U.S.C. §
4332(2)(C). This statement ‑‑
known as an Environmental Impact Statement (“EIS”) ‑‑ must describe
(1) the “environmental impact of the proposed action,” (2) any “adverse
environmental effects which cannot be avoided should the proposal be implemented,”
(3) any “alternatives to the proposed action,” and (4) any “irreversible or
irretrievable commitment of resources which would be involved in the proposed
action should it be implemented.” Id.
54.
“Major Federal actions” includes “actions
with effects that may be major and which are potentially subject to Federal
control and responsibility,” including “new and continuing activities . .
.[and] projects . . . regulated or approved by federal agencies.” 40 C.F.R. § 1508.18. “Significantly,” takes into account both the
context and intensity of a proposed action.
See id. § 1508.27.
The intensity of an action’s impacts involves several factors,
including: “[w]hether the action is related to other actions with individually
insignificant but cumulatively significant impacts ....” Id. § 1508.27(b)(7).
55.
If an EIS must be prepared, it must include
an analysis of direct and indirect environmental “effects” of the proposed
action, including “cumulative” impacts and “cumulative actions.” 40 C.F.R. §§ 1502.16, 1508.8,
1508.25(a)(2). A “‘cumulative impact’
is the impact on the environment which results from the incremental impact of
the action when added to other past, present, and reasonably foreseeable future
actions regardless of what agency (Federal or non-Federal) or person undertakes
such other actions.” 40 C.F.R. §
1508.7. “Cumulative impacts can result
from individually minor but collectively significant actions taking place over
a period of time.” Id. Cumulative actions are actions “which when
viewed with other proposed actions have cumulatively significant impacts and
should therefore be discussed in the same impact statement.” Id., § 1508.25(a)(2).
CLAIMS
Count
1
56.
Plaintiff incorporates by reference the
allegations of paragraphs 1-55 above.
57.
The primary purpose of valley fills
associated with surface mining activities is to dispose of waste (i.e., mining
spoil), not to create dry land or elevate a waterbody.
58.
As a result, section 404 permits do not, and
cannot, regulate the disposal of mining spoil in valley fills. Such spoil is a discharge of a pollutant and
is therefore subject to the section 402 permit requirement.
59.
Defendants granted MCCC’s application for a
Nationwide Permit under section 404 of the Clean Water Act for valley fills,
even though those fills would dispose of mining spoil directly into waters of
the United States.
60.
As a result, Defendants have violated the
Corps’ regulations and section 404 of the Clean Water Act, 33 U.S.C. § 1344,
and have acted in a manner that is arbitrary, capricious, an abuse of
discretion, and otherwise contrary to law, in violation of the APA, 5 U.S.C. §
706(2).
Count
2
61.
Plaintiff incorporates by reference the
allegations in paragraphs 1 through 55 above.
62.
In the alternative, even assuming that Defendants have
authority to issue 404 permits for valley fills, Defendants’ decision to
approve the authorization to MCCC under NWP 21, and their failure to process
MCCC’s request as an individual Section 404 permit, is contrary to Section 404
of the CWA and its implementing regulations, and is arbitrary, capricious, an
abuse of discretion, and otherwise not in accordance with law, in violation of
the APA, 5 U.S.C. § 706(2)(A), because MCCC’s proposed discharges of spoil into
waters of the United States will have adverse impacts on the aquatic
environment and other aspects of the public interest that will be, both
individually and cumulatively, more than minimal.
Count 3
63.
Plaintiff incorporates by reference the
allegations in paragraphs 1 through 55 above.
64.
Since MCCC’s proposed discharges will have
more than minimal adverse impacts on the aquatic environment and other aspects
of the public interest, both individually and cumulatively, and since
Defendants have obtained new information since the EA on NWP 21 was issued in
December 1996 that these activities, both individually and cumulatively,
constitute a major federal action that will affect the quality of the human
environment in a significant manner and to a significant extent that has not
previously been considered, Defendants’ failure to prepare an EIS or a supplemental
EA or EIS on those proposed discharges, and/or on proposed discharges under NWP
21 generally, is contrary to NEPA, 42 U.S.C. § 4332(2)(C), and the CEQ's
implementing regulations, and is arbitrary, capricious, an abuse of discretion,
and otherwise contrary to law, in violation of the APA, 5 U.S.C. § 706(2)(A).
Count 4
65.
Plaintiff
incorporates by reference the allegations in paragraphs 1 through 55 above.
66.
Defendants’ failure to take steps to avoid
or minimize the effects of MCCC’s proposed 27 valley fills and sediment ponds
is contrary to Corps regulations which provide that filling and adverse impacts
from impoundments must be minimized or avoided to the maximum extent
practicable, 33
C.F.R. Part 330, App. A, Conditions 4 and 7, and is arbitrary, capricious, an
abuse of discretion, and otherwise contrary to law, in violation of the APA, 5
U.S.C. § 706(2)(A).
Count
5
67.
Plaintiff incorporates by
reference the allegations in paragraphs 1 through 55 above.
68.
Defendants’ failure to suspend MCCC’s
authorization under NWP 21, after EPA requested such a suspension under 40
C.F.R. § 231.7, is
arbitrary, capricious, an abuse of discretion, and otherwise contrary to law,
in violation of the APA, 5 U.S.C. § 706(2)(A).
RELIEF
Wherefore, Plaintiff respectfully requests
this Court to grant the following relief:
1.
Declare that Defendants’ June 20, 2000 decision granting authorization
under NWP 21 to MCCC is contrary to Section 404 of the CWA and its implementing
regulations, and is arbitrary, capricious, an abuse of discretion, and
otherwise not in accordance with law, in violation of the APA, 5 U.S.C. §
706(2)(A);
2.
Alternatively, assuming that Defendants have authority under Section 404
of the CWA to issue a permit for MCCC’s filling activities, declare that
Defendants’
failure to process MCCC’s request as an individual Section 404 permit is
contrary to Section 404 of the CWA and its implementing regulations, and is
arbitrary, capricious, an abuse of discretion, and otherwise not in accordance
with law, in violation of the APA, 5 U.S.C. § 706(2)(A);
3. Declare that Defendants’ failure to prepare
an EIS or supplemental EA or EIS on MCCC’s proposed discharges, and/or on
proposed discharges under NWP 21 generally, is contrary to NEPA, 42 U.S.C. §
4332(2)(C), and the CEQ's implementing regulations, and is arbitrary,
capricious, an abuse of discretion, and otherwise contrary to law, in violation
of the APA, 5 U.S.C. § 706(2)(A).
4. Declare
that Defendants’ failure to take steps to avoid or minimize the effects of
MCCC’s proposed 27 valley fills and sediment ponds is contrary to Corps
regulations which provide that filling and adverse impacts from impoundments
must be minimized or avoided to the maximum extent practicable, 33 C.F.R. Part 330, App.
A, Conditions 4 and 7, and is arbitrary,
capricious, an abuse of discretion, and otherwise contrary to law, in violation
of the APA, 5 U.S.C. § 706(2)(A).
5. Declare
that Defendants’ failure to suspend MCCC’s authorization under NWP 21, after
EPA requested such a suspension under 40 C.F.R. § 231.7, is arbitrary, capricious,
an abuse of discretion, and otherwise contrary to law, in violation of the APA,
5 U.S.C. § 706(2)(A).
6.
Issue an order requiring Defendants to revoke MCCC’s authorization under
NWP 21 or, in the alternative, to suspend that authorization pending completion
of EPA’s Section 404(c) proceeding and/or unless and until Defendants comply
with their obligations herein under the APA, CWA, and NEPA.
7.
Issue an order prohibiting Defendants from authorizing MCCC’s proposed
discharges of fill material, or any other discharges under NWP 21 generally,
unless and until the Corps prepares an EIS on the environmental impacts of all
activities associated with NWP 21 on a nationwide basis.
8.
Award Plaintiff its costs and expenses, including reasonable attorneys'
and expert witness' fees, as authorized by 28 U.S.C. § 2412(d)(2)(A); and
9.
Grant Plaintiff such other and further relief as this Court deems
appropriate.
Respectfully submitted,
____________________________________
JOSEPH M. LOVETT
Appalachian Center for the Economy and the
Environment
P.O. Box 507
Lewisburg, WV 24901
(304) 645-9006
JOE F. CHILDERS
201 W. Short Street
Suite 310
Lexington, Kentucky 40507
(859) 253-9824
JAMES
M. HECKER
Trial Lawyers for Public Justice
1717 Massachusetts Avenue, N.W., Suite 800
Washington, D.C. 20036
(202) 797-8600
Counsel for Plaintiff