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Mingo Logan Coal Co. v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

July 19, 2016

Mingo Logan Coal Company, Appellant
v.
Environmental Protection Agency, Appellee

          Argued April 11, 2016

         Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-00541)

          Paul D. Clement argued the cause for the appellant. Jeffrey M. Harris, Nathan A. Sales, Robert M. Rolfe, George P. Sibley III, Virginia S. Albrecht and Deidre G. Duncan were with him on brief.

          Matthew Littleton, Attorney, United States Department of Justice, argued the cause for the appellee. John C. Cruden, Assistant Attorney General, Aaron P. Avila, Mark R. Haag, Cynthia J. Morris, Kenneth C. Amaditz, Attorneys, Stefania D. Shamet, Counsel, United States Environmental Protection Agency, and Ann D. Navaro, Assistant Chief Counsel for Litigation, were with him on brief.

          Emma C. Cheuse, Jennifer C. Chavez, and Benjamin A. Luckett were on brief for the amici curiae West Virginia Highlands Conservancy, et al. in support of the appellee.

          Before: Henderson, Kavanaugh and Srinivasan, Circuit Judges.

          OPINION

          Karen LeCraft Henderson, Circuit Judge

         In 2007, the United States Army Corps of Engineers (Corps) issued Mingo Logan Coal Co. (Mingo Logan) a permit to excavate the tops of several West Virginia mountains, extract exposed coal and dispose of the excess soil and rock in three surrounding valleys containing streams. Four years later, after additional study, the United States Environmental Protection Agency (EPA) decided that the project would result in "unacceptable adverse effect[s]" to the environment. See 33 U.S.C. § 1344(c). The EPA therefore withdrew approval from two of the disposal sites, which together "make up roughly eighty eight percent of the total discharge area authorized by the permit." Mingo Logan Coal Co. v. EPA (Mingo Logan I), 850 F.Supp.2d 133, 137 (D.D.C. 2012). In 2013, Mingo Logan challenged the EPA's statutory authority to withdraw the two sites from the Corps permit after it had been issued but we determined that the Clean Water Act (CWA) authorized the EPA to do so. See Mingo Logan Coal Co. v. EPA (Mingo Logan II), 714 F.3d 608, 616 (D.C. Cir. 2013). We then remanded the case to the district court to consider Mingo Logan's remaining Administrative Procedure Act (APA) challenges. See id. The district court thereafter rejected them. See Mingo Logan Coal Co. v. EPA (Mingo Logan III), 70 F.Supp. 3d 151');">70 F.Supp. 3d 151, 183 (D.D.C. 2014).

         Mingo Logan now appeals the district court's resolution of its APA claims. Specifically, the company argues that the EPA failed to engage in reasoned decisionmaking by ignoring Mingo Logan's reliance on the initial permit, impermissibly considering the effects of downstream water quality and failing to explain adequately why the project's environmental effects were so unacceptable as to justify withdrawal. We conclude that the EPA did not violate the APA in withdrawing specification of certain disposal areas from the permit; rather, it considered the relevant factors and adequately explained its decision. The EPA's ex post withdrawal is a product of its broad veto authority under the CWA, not a procedural defect. Accordingly, we affirm.

         I.

         A. Statutory and Regulatory Background

         Under the CWA, 33 U.S.C. §§ 1251 et seq., a party must generally obtain a permit from the relevant state and/or federal authority before discharging "any pollutant" into "navigable waters."[1] See id. §§ 1311(a), 1341–45. Two categories of permits are involved in this case: a permit for the discharge of "dredged or fill material" under section 404 of the Act, see id. § 1344, and a permit for the discharge of all other pollutants under section 402, see id. § 1342.

         1. Section 404

         Under section 404, the Corps and qualified states are authorized to issue permits allowing "the discharge of dredged or fill material" into bodies of water "at specified disposal sites." Id. § 1344(a), (g). The permit is required if, as here, a permit applicant plans to remove soil or rock from one location (i.e., "fill material"[2]) and dispose of it into "navigable waters." See id. § 1344(a). The Corps specifies sites for disposal of dredge-and-fill material in accordance with so-called 404(b) Guidelines it has developed jointly with the EPA. See id. § 1344(b). Once the Corps has issued a 404 permit, it retains discretion to "modify, suspend, or revoke" it. 33 C.F.R. § 325.7(a). "Among the factors to be considered" by the Corps in making a revocation decision are:

the extent of the permittee's compliance with the terms and conditions of the permit; whether or not circumstances relating to the authorized activity have changed since the permit was issued or extended, and the continuing adequacy of or need for the permit conditions; any significant objections to the authorized activity which were not earlier considered; revisions to applicable statutory and/or regulatory authorities; and the extent to which modification, suspension, or other action would adversely affect plans, investments and actions the permittee has reasonably made or taken in reliance on the permit.

Id.

         Although the EPA does not issue the 404 permit directly, it has "a broad environmental 'backstop' authority over the [Corps's] discharge site selection." Mingo Logan II, 714 F.3d at 612. Specifically, under section 404(c), the EPA may "deny, " "restrict" or "withdraw[]" specification of a site for disposal of dredge-and-fill material. 33 U.S.C. § 1344(c). The EPA is authorized to exercise this authority "whenever [the EPA Administrator] determines, after notice and opportunity for public hearings, that the discharge of such materials into such area [specified for disposal] will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas." Id. (emphasis added). In Mingo Logan II, we held that the EPA could exercise this "backstop" authority both pre-permit and post-permit; that is, the EPA may prevent the Corps from issuing a 404 permit specifying a disposal site or it may withdraw specification of a disposal site after the Corps has issued a permit. Mingo Logan II, 714 F.3d at 612–14, 616.

         EPA regulations further define the adverse environmental effects the Administrator must identify before stepping in to deny, restrict or withdraw a 404 permit. Specifically, the EPA has interpreted "unacceptable adverse effect" to mean 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 recreation areas." 40 C.F.R. § 231.2(e) (emphases added). When the EPA restricts or withdraws areas specified for disposal in a validly issued permit, the entire permit is not necessarily invalidated; rather, the permit is "in effect amended so that discharges at the previously specified disposal sites are no longer in '[c]ompliance with' the permit." Mingo Logan II, 714 F.3d at 615 (alteration in original) (quoting 33 U.S.C. § 1344(p)). Thus, to the extent a site passes EPA muster, the permittee may continue to dispose of dredge-and-fill material thereat. See id. at 615 & n.5.

         2. Section 402

         Section 402 of the CWA establishes a separate permitting scheme, called the National Pollutant Discharge Elimination System (NPDES), under which the EPA is authorized to issue a permit for the discharge of all pollutants other than dredge-and-fill material. See 33 U.S.C. § 1342(a); see also Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 273 (2009). Alternatively, a state may assume authority for issuing a NPDES permit "for discharges into navigable waters within its jurisdiction." 33 U.S.C. § 1342(b). If a state submits a description of its planned permitting program to the EPA and its plan meets the relevant CWA criteria, the EPA "shall approve" the program. Id. The state then becomes responsible for issuing a NPDES permit for pollutant discharge, see id., and the federal NPDES permitting program is suspended for qualified waters within that state's jurisdiction, see id. § 1342(c)(1).

         The EPA, however, maintains an oversight role. It may "withdraw approval of [the state] program" if it determines that the program is not being administered in accordance with the CWA and the state takes no corrective action. See id. § 1342(c)(3). Further, a state must submit to the EPA a copy of each permit application it receives and must keep the EPA informed of the state's consideration of the application. Id. § 1342(d)(1). The EPA, acting through its Administrator, may object to the issuance of a state NPDES permit within ninety days of receipt thereof and, if it does so, the state may not issue the permit. See id. § 1342(d)(2). If the state fails to revise the permit to comply with CWA guidelines and requirements, the EPA may issue a revised permit that complies with the CWA. See id. § 1342(d)(4). Importantly, "[o]nce a section 402 permit has been issued, it may only be modified by the entity that issued the permit." Mingo Logan III, 70 F.Supp. 3d at 155 (citing 40 C.F.R. §§ 122.2, 122.62, 124.5(c)).

         B. Factual Background

         In 1997, Hobet Mining, Inc., Mingo Logan's predecessor, began the process of securing the various permits required for operation of the Spruce No. 1 Mine, a proposed large-scale surface mining operation in West Virginia. Mingo Logan planned to use a surface-mining technique known as mountaintop mining at Spruce No. 1, whereby large swathes of land are removed from the surface, exposing coal deposits underneath. See generally Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 186 (4th Cir. 2009). The excess soil and rock ("spoil" or "overburden") is then relocated to adjacent valleys, "creating a 'valley fill' that buries intermittent and perennial streams in the process." Id. Runoff water from the valley fill is collected in sediment ponds, where sediment suspended in the runoff water is allowed to settle. Id. The water collected in the ponds is then treated and discharged back into natural streams. Id.

         Mingo Logan's final proposal for the mine designated three sites for disposal of spoil, resulting in the burial of approximately 7.48 miles of three streams: (1) Seng Camp Creek; (2) Pigeonroost Branch; and (3) Oldhouse Branch. Because the streams were also going to be affected by the discharge of treated water, the project required both a 404 permit from the Corps for disposal of the spoil and an NPDES permit from West Virginia, which had secured an EPA-approved permitting plan under section 402.

         Hobet Mining initiated the application process for a NPDES permit from West Virginia's Department of Environmental Protection (WVDEP) in late 1997. Consistent with its CWA obligations, WVDEP notified the EPA of the application and forwarded it a proposed permit. The EPA initially objected but, after WVDEP placed additional conditions on the NPDES permit, the EPA withdrew its objections in December 1998 and approved the modified permit in January 1999. West Virginia thus issued a valid NPDES permit to Hobet Mining on January 11, 1999. The permit was modified in 2003 and 2005, which modifications were eventually approved by the EPA. The NPDES permit has since been renewed and remains in effect.

         The 404 permitting process was much more extensive. Hobet Mining first applied to the Corps for an individual 404 permit in 1999, triggering a lengthy review process. After a seven-year consultation with Mingo Logan, the EPA and West Virginia, the Corps produced a 1600-page draft Environmental Impact Statement (EIS) on March 31, 2006. Although the EPA "expressed its concern that 'even with the best practices, mountaintop mining yields significant and unavoidable environmental impacts that had not been adequately described in the document, ' " Mingo Logan II, 714 F.3d at 610 (quoting Letter from EPA, Region III to Corps, Huntington Dist., at 1 (June 16, 2006)), it ultimately "declined to pursue a[n] . . . objection" to the issuance of a 404 permit, id. Specifically, in an email, William Hoffman, Director of the EPA Office of Environmental Programs, told the Corps that it "ha[d] no intention of taking [its] Spruce Mine concerns any further from a Section 404 standpoint." E-mail from EPA to Corps (Nov. 2, 2006), Joint App'x (J.A.) 292. On January 22, 2007, the Corps issued the 404 permit allowing the disposal of spoil into the three specified stream areas.

         Mingo Logan's 404 permit was almost immediately challenged in court by environmental groups, which added the permit to ongoing litigation challenging other coal-mining permits. See Ohio Valley Envtl. Coal. v. U.S. Army Corps of Eng'rs (OVEC), 243 F.R.D. 253, 255, 257 (S.D.W.Va. 2007).[3]Pursuant to an agreement it reached with the environmental plaintiffs, Mingo Logan began operations at the Spruce Mine in 2007 but limited its disposal of spoil to a single valley fill-the Seng Camp Creek disposal site. The other two disposal sites-Pigeonroost Branch and Oldhouse Branch-remained unused.

         On September 3, 2009, the EPA stepped in. It requested that the Corps use its discretionary authority to suspend, revoke or modify the permit based on "new information and circumstances" that "justif[ied] reconsideration of the permit." Letter from EPA, Region III to Corps, Huntington Dist., at 1 (Sept. 3, 2009), J.A. 309. The Corps sought comment from Mingo Logan and West Virginia; both opposed revoking, suspending or modifying the permit and asserted that the EPA's concerns were not based on new information. The Corps rejected the EPA request on September 30, 2009. After addressing each of the EPA's concerns, the Corps "determined that no additional evaluation of the project's effects on the environment are warranted, the permit will not be suspended, modified or revoked, and a supplemental EIS will not be prepared." Letter from Corps, Huntington Dist. to EPA, Region III, at 4 (Sept. 30, 2009), J.A. 331.

         In response, on April 2, 2010, the EPA intervened directly. Invoking its veto authority under section 404(c), the EPA published a Proposed Determination withdrawing the 404 permit specification of the (as yet unused) Pigeonroost and Oldhouse Branch disposal sites. These disposal sites together amounted to approximately eighty-eight per cent of the area the original permit allowed for valley fills.[4] See Mingo Logan I, 850 F.Supp.2d at 137. After holding a public hearing and receiving comments, the EPA ultimately issued a Final Determination on January 13, 2011, withdrawing specification of the two disposal sites.

         The EPA gave two primary reasons for its withdrawal: (1) the "unacceptable adverse impacts" resulting from "direct impacts to wildlife and wildlife habitat" in each area where the fill was in fact to occur (the fill "footprint"), see Final Determination of the U.S. Environmental Protection Agency Pursuant to § 404(c) of the Clean Water Act Concerning the Spruce No. 1 Mine, Logan County, West Virginia (Final Determination), at 47, 50 (Jan. 13, 2011); and (2) the "[u]nacceptable adverse impacts" on wildlife occurring "downstream of the footprint of the fills and sediment ponds, " id. at 50. As to the first basis, the EPA determined that "[t]he destruction of 6.6 miles of high quality stream habitat . . ., and the subsequent loss of many populations of macroinvertebrates, salamanders, fish and other wildlife dependent upon that aquatic habitat area for survival, . . . will result in a loss of regional biodiversity and the broader ecosystem functions these populations provide." Id. at 47. It cited specific concerns for each population described and, in view of its conclusion that the affected streams "are some of the last, rare and important high quality streams in the watershed, " it decided that the adverse effect on the local wildlife "is one that the aquatic ecosystem cannot afford." Id. at 50. As for the adverse environmental impact downstream, the EPA concluded that removing the Pigeonroost and Oldhouse Branches "as sources of freshwater dilution and converting them to sources of pollution" would increase water contamination and salinity, both producing a negative effect on various wildlife, including macroinvertebrates, salamanders, fish and water-dependent birds. Id. at 50, 60–73.

         C. Procedural Background

         Once the EPA issued its Final Determination, Mingo Logan filed suit in district court, alleging that the EPA lacked statutory authority under the CWA to revoke a valid 404 permit after the Corps had issued it and that the EPA's Final Determination was, for numerous reasons, arbitrary, capricious, or otherwise contrary to law in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706. See Mingo Logan III, 70 F.Supp. 3d at 160. We resolved the first claim in Mingo Logan II, upholding the EPA's authority under section 404(c) of the CWA to withdraw specification of spoil-disposal sites after the Corps had issued a 404 permit. See 714 F.3d at 616. We remanded the APA claim to the district court. Id.

         On remand, the district court concluded that the EPA's Final Determination complied with the APA. See Mingo Logan III, 70 F.Supp. 3d at 154–55. It noted that both bases the EPA asserted for withdrawing the permit-the direct effects to wildlife within the valley fills' footprint and the effects of the valley fills on downstream wildlife-independently supported its revocation decision, concluding that the EPA had not acted arbitrarily or capriciously in identifying "unacceptable adverse effect[s]" under both rationales. Id. at 175–76 (effects within the footprint); id. at 181–83 (downstream effects). Accordingly, it granted summary judgment to the EPA. Id. at 183. Mingo Logan now appeals. Our review is de novo. Murphy v. Exec. Office for U.S. Attorneys, 789 F.3d 204, 208 (D.C. Cir. 2015); see also Holland v. Nat'l Mining Ass'n, 309 F.3d 808, 814 (D.C. Cir. 2002) ("[W]e review the administrative action directly, according no particular deference to the judgment of the District Court.").

         II.

         The general legal principles attending our review are well-settled. The APA directs us to "set aside agency action" that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Agency action is "arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency." Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Although we must ensure that "an agency's decreed result [is] within the scope of its lawful authority" and that "the process by which it reaches that result [is] logical and rational, " Michigan v. EPA, 135 S.Ct. 2699, 2706 (2015) (quoting Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998)), we are "not to substitute [our] judgment for that of the agency, " State Farm, 463 U.S. at 43. Whether we would have done what the agency did is immaterial; so long as the agency "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action[, ] including a 'rational connection between the facts found and the choice made, ' " we will ordinarily uphold it. Id. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

         When an agency changes policy, however, it must in some cases "provide a more detailed justification than what would suffice for a new policy created on a blank slate." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). Changing policy does not, on its own, trigger an especially "demanding burden of justification, " Ark Initiative v. Tidwell, 816 F.3d 119, 127 (D.C. Cir. 2016); indeed, the agency "need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one, " Fox, 556 U.S. at 515 (emphasis in original). That said, if a "new policy rests upon factual findings that contradict those which underlay [an agency's] prior policy, " the agency "must" provide "a more detailed justification" for its action. Id. The same is true if the agency's "prior policy has engendered serious reliance interests that must be taken into account." Id. In such cases, in order to offer "a satisfactory explanation" for its action, "including a rational connection between the facts found and the choice made, " State Farm, 463 U.S. at 43 (internal quotation marks omitted), the agency must give "a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy, " Fox, 556 U.S. at 516.

         In this case, Mingo Logan claims that the EPA's post-permit revocation is the epitome of arbitrary-and-capricious agency action. Not only did the EPA "entirely fail[] to consider an important aspect of the problem, " Mingo Logan claims, it also "relied on factors which Congress has not intended it to consider" and "offered an explanation for its decision that runs counter to the evidence." See State Farm, 463 U.S. at 43. This "rare and impressive trifecta, " Appellant's Br. 4, is particularly egregious, Mingo Logan avers, given that the EPA was subject to Fox's more detailed justification standard, see 556 U.S. at 515–16. As Mingo Logan sees it, because the EPA did not veto the Spruce No. 1 permit the first time around, it must provide a weighty basis for withdrawing specification of two disposal sites four years later. We disagree with Mingo Logan's assessment and address each prong of the alleged "trifecta" in turn.

         A. EPA's Consideration of Relevant Factors

         Mingo Logan first argues that the EPA "entirely failed to consider an important aspect of the problem"-the costs Mingo Logan incurred in reliance on the permit and its history of compliance with the permit's conditions. Appellant's Br. 18–19 (quoting State Farm, 463 U.S. at 43). As Mingo Logan sees it, the EPA may revoke a permit only if it balances resulting adverse environmental effects against the permittee's sunk costs and record of permit compliance; "[i]n practice, that means that [the] EPA may withdraw a specification when circumstances have changed radically or when the withdrawal has only a minor impact on the operations envisioned (and reliance interests generated) by the permit." Id. at 18. Because the EPA did not "balance" these "competing considerations, " see id., but instead based its decision only on the existence vel non of adverse environmental effects, Mingo Logan cries foul.

         In response, the EPA concedes that it did not consider Mingo Logan's reliance costs or its compliance history and, in its view, neither the CWA nor the APA requires it to do so. It contends, however, that we need not reach this issue because Mingo Logan failed to make the argument to the agency or to the district court and has thus forfeited it.

         We agree with the EPA that the argument is forfeited and doubly so. "Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice." United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952). Thus, "[a]s a general rule, claims not presented to [an] agency may not be made for the first time to a reviewing court." Omnipoint Corp. v. FCC, 78 F.3d 620, 635 (D.C. Cir. 1996); see also Nat'l Wildlife Fed. v. EPA, 286 F.3d 554, 562 (D.C. Cir. 2002) ("It is well established that issues not raised in comments before the agency are waived and this Court will not consider them."); Vill. of Barrington v. Surface Transp. Bd., 636 F.3d 650, 655 (D.C. Cir. 2011) (parties must "forcefully present[] their arguments at the time appropriate under [agency] practice or else waive the right to raise those arguments on appeal" (alterations in original) (citations and internal quotation marks omitted)). The same rule applies on appeal from district court judgments. "Generally, an argument not made in the lower tribunal is deemed forfeited and will not be entertained [on appeal] absent exceptional circumstances." Flynn v. Comm'r, 269 F.3d 1064, 1068–69 (D.C. Cir. 2001) (internal quotation marks omitted).

         Here, Mingo Logan did not argue the reliance-costs and compliance-history issue before the EPA or in district court, notwithstanding numerous opportunities to do so. Indeed, the EPA's process for finalizing its decision afforded Mingo Logan numerous chances to make the claim. The EPA first published a Proposed Determination detailing its environmental concerns in part as follows: "[C]onstruction of Spruce No. 1 Mine as authorized would destroy streams and habitat, cause significant degradation of on-site and downstream water quality, and could therefore result in unacceptable adverse impacts to wildlife and fishery resources." Proposed Determination to Prohibit, Restrict, or Deny the Specification, or the Use for Specification (Including Withdrawal of Specification), of an Area as a Disposal Site; Spruce No. 1 Surface Mine, Logan County, WV, 75 Fed Reg. 16, 788, 16, 789 (Apr. 2, 2010). It then proposed to withdraw specification of the Pigeonroost and Oldhouse Branch sites, see id. at 16, 805, and solicited comments on its proposal, see id. at 16, 807–08, thereby providing Mingo Logan notice and an opportunity to put forward the factors that it believed the EPA was required to consider-and had failed to consider-in reaching its initial conclusion.

         Mingo Logan responded to the Proposed Determination with 172 pages of comments. Conspicuously absent therefrom, however, was any argument that the EPA had to balance the environmental effects against the costs Mingo Logan had incurred in reliance on the permit before reaching a final decision.[5] Equally absent was a detailing of these costs the EPA, under Mingo Logan's theory, was required to consider. Indeed, other than a single reference in introductory factual material mentioning the "millions of dollars" Mingo Logan allegedly spent "preparing the Spruce No. 1 site and commencing its operations" after the permit had issued, Mingo Logan never discussed what costs the EPA should consider or how those costs stacked up against the environmental concerns the EPA had identified. See Mingo Logan Coal Co., Comments in Response and in Opposition to the Proposed Determination 33 (June 3, 2010), J.A. 403. That a detailed statement of costs is missing here is unsurprising, of course-Mingo Logan never attempted to argue that the EPA was required to balance adverse effects against reliance costs in the first place.

         After reviewing these and other comments on the Proposed Determination, an EPA Regional Director then published a Recommended Determination, again proposing to withdraw specification of the Pigeonroost Branch and Oldhouse Branch sites and again inviting comments. See Recommended Determination of the U.S. Environmental Protection Agency Region III Pursuant to Section 404(c) of the Clean Water Act (Sept. 24, 2010). Yet again, other than a single reference in introductory material-"[n]ow, more than three years after the issuance of the permit, as Mingo Logan is actively mining the site in an attempt to recoup its decade-long investment, EPA has declared that the impacts that it had approved are now unacceptable, and seeks to revoke the permit, " Mingo Logan Coal. Co., Comments in Response and in Opposition to the Recommended Determination 2 (Nov. 29, 2010)-Mingo Logan never claimed that the EPA had to balance reliance costs against environmental effects[6] nor did it detail those costs. Accordingly, by failing to make the claim before the EPA, Mingo Logan forfeited it.

         Once the EPA published its Final Determination withdrawing specification of the disposal sites, Mingo Logan filed suit, eventually composed of a fourteen-count amended complaint. None of the counts alleged that the EPA's Final Determination was arbitrary and capricious because it had failed to weigh Mingo Logan's reliance costs. Again, other than one general allegation in the factual background-that "[a]fter receiving its Permit, Mingo Logan spent millions of dollars preparing the site and commencing construction and operations, " Am. Compl. ¶ 141-Mingo Logan did not assert an APA claim based on the EPA's failure to consider its reliance costs.

         After we decided Mingo Logan II, the case returned to the district court for consideration of the procedural issues. At the district court's request, Mingo Logan submitted a supplemental brief summarizing the issues remaining for review. In its brief, Mingo Logan asked the court to resolve "four key questions of law":

(1) "Can [the] EPA . . . base a section 404(c) decision on downstream water quality impacts that are regulated by West Virginia under section 402?"
(2) "Can [the] EPA base a section 404(c) determination on impacts caused by mining features other than the discharges authorized by Mingo Logan's section 404 permit?"
(3) "Assuming arguendo that [the] EPA can base its section 404(c) veto on downstream water effects regulated by section 402, can [the] EPA use water quality standards other than West Virginia's duly-adopted water quality standards to determine whether such effects are 'unacceptable' within the meaning of section 404(c)?" and
(4) "After the Corps has issued a permit under section 404(a), can [the] EPA act under section 404(c) in the absence of substantial new information that was not available prior to the issuance of the permit?"

Supplemental Br. in Supp. of Mingo Logan's Mot. for Summ. J. at 1–3, Mingo Logan III, 70 F.Supp. 3d 151');">70 F.Supp. 3d 151 (No. 10-cv-541), ECF No. 99. Once the court resolved these four questions, according to Mingo Logan, it could ...


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