Club v. ICG E., LLC

• Decision Date: 29 June 2011
• Docket Number: Civil Action No. 2:11–CV–23.
• Citation: 74 ERC 1249,833 F.Supp.2d 571
• Court: U.S. District Court — Northern District of West Virginia
• Parties: SIERRA CLUB, et al., Plaintiffs, v. ICG EASTERN, LLC, Defendant.

833 F.Supp.2d 571

74 ERC 1249

SIERRA CLUB, et al., Plaintiffs,

v.ICG EASTERN, LLC, Defendant.

Civil Action No. 2:11–CV–23.

United States District Court,

N.D. West Virginia,

Elkins.

June 29, 2011.

Derek O. Teaney, Lewisburg, WV, for Plaintiffs.

James S. Crockett, Jr., Spilman Thomas & Battle PLLC, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

JOHN PRESTON BAILEY, District Judge.

Currently pending before this Court is Defendant ICG Eastern, LLC's (“ICG”) Motion to Dismiss [Doc. 6], filed April 25, 2011. The plaintiff responded to the Motion to Dismiss on May 12, 2011 [Doc. 9], and the defendant replied on May 23, 2011 [Doc. 10]. The Court has reviewed the record and the arguments set forth by the parties and, for the reasons set forth below, concludes that the Motion to Dismiss should be GRANTED.

BACKGROUND

I. Regulatory Structure

Plaintiffs' claims are brought pursuant to the provisions for “citizen suits” found in section 505(a) of the Clean Water Act (“CWA”), 33 U.S.C. § 1365(a), and section 520(a) of the Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. § 1270(a). A brief overview of the governing statutory and regulatory regimes will help to elucidate the issues before this Court.

A. Clean Water Act

The purpose of the Clean Water Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). In service of those ends, the statute prohibits the “discharge of any pollutant by any person” unless such discharge complies with the provisions of the CWA. See 33 U.S.C. § 1342(a)(1). One such provision, codified at 33 U.S.C. § 1342, “established a National Pollution Discharge Elimination System [“NPDES”] ... that is designed to prevent harmful discharges into the Nation's waters.” Piney Run Pres. Ass'n v. County Comm'rs of Carroll County, Maryland, 523 F.3d 453, 455–56 (2008) (quoting Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007)). NPDES requires dischargers to obtain permits that contain effluent limitations—restrictions on the type and quantity of pollutants that can be released into the water. S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004). In effect, the NPDES program transforms the generally applicable requirements of the CWA into specific obligations imposed upon individual polluters. EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976).

The Environmental Protection Agency (“EPA”) initially administers the NPDES program for each state, but the states may apply for a transfer of permitting authority to state officials. Nat'l Ass'n of Home Builders, 551 U.S. at 650, 127 S.Ct. 2518. Once authority is transferred, state officials are responsible for reviewing and approving NPDES permits. Id. However, the EPA retains an oversight role in the permitting process; the state must advise the EPA of each permit it proposes to issue, and the EPA may lodge an objection to any permit. Id. at 650 n. 1, 127 S.Ct. 2518 (citing 33 U.S.C. §§ 1342(d)(1), (2); 40 C.F.R. § 123.44(c)). If the state fails to resubmit a revised permit that satisfies the EPA's objection, authority over the permit reverts to the EPA. Id. at 650 n. 1, 127 S.Ct. 2518 (citing 33 U.S.C. § 1342(d)(4)).

B. Surface Mining Control and Reclamation Act

Congress enacted the SMCRA in order to ensure that “coal mining operations are so conducted as to protect the environment.” 30 U.S.C. § 1202(d). Like the CWA, the SMCRA allows states to adopt their own regulatory programs, so long as those programs comply with the requirements of federal law.¹ See generally 30 U.S.C. § 1253. The West Virginia Surface Coal Mining and Reclamation Act (“WVSCMRA”), West Virginia's regulatory program, empowers WVDEP to issue surface mining permits. See W.Va.Code § 22–3–2. Permits are subject to specific performance standards, and holders of such permits must meet all applicable standards. See 38 C.S.R. § 2–14. One standard mandated by the Act requires that mining activities be conducted in a manner which “prevent[s] material damage to the hydrologic balance outside the permit area.” 38 C.S.R. § 2–14.5; see also 30 C.F.R. §§ 816.41(a), 817.41(a). A second standard directs that “[d]ischarge ... shall not violate effluent limitations or cause a violation of applicable water quality standards.” 38 C.S.R. § 2–14.5b; see also 30 C.F.R. §§ 816.42, 817.42. Applicable water quality standards include the effluent limitations imposed pursuant to the CWA; therefore, if a permittee violates the terms of its CWA permit, the permittee is also in violation of the performance standards imposed by its SMCRA permit.²

C. Citizen Suits

The enforcement schemes established by both the CWA and SMCRA carve out a role for ordinary citizens, who are empowered to bring suit against polluters for their violations of the law. See 33 U.S.C. § 1365; 30 U.S.C. § 1270. Citizen suits, while not the primary mechanism of enforcement for either statute, “can serve as a check to ensure the state and federal governments are diligent in prosecuting ... violations.” Piney Run, 523 F.3d at 456. While citizen suit provisions are “critical” to the enforcement of these statutes, they are meant “to supplement rather than to supplant governmental action.” Id. (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987)). Citizen suits are only proper, therefore, if governmental agencies “fail to exercise their enforcement responsibilities.” Gwaltney, 484 U.S. at 60, 108 S.Ct. 376;see also Envtl. Conserv. Org. v. City of Dallas, 529 F.3d 519, 528 (5th Cir.2008) (“The primary function of a citizen suit is to spur agency enforcement of the law.”).

In service of that aim, Congress carefully restricted the right to bring a citizen suit. Both the CWA and SMRCA expressly stipulate that no citizen suit may be brought if the government “has commenced and is diligently prosecuting a civil or criminal action ... to require compliance” with the CWA or SMCRA. 30 U.S.C. § 1270(b)(1)(B); see also 33 U.S.C. § 1365(b)(1)(B).

II. Factual Background

This case arises out of a coal company's alleged noncompliance with the conditions of two permits issued pursuant to the Clean Water Act and the Surface Mining Control and Reclamation Act. At all times relevant to this action, defendant ICG owned and operated the Knight–Ink No. 1 Surface Mine located in Webster County, West Virginia. Plaintiffs' Complaint at ¶ 11. That mine, which is regulated by WVSCMRA Permit S201988, discharges pollutants via several outfalls into the waters surrounding the mine. See id. at ¶ 38. Those discharges are regulated by WV/NPDES Permit WV0094889, which limits the type and quantity of pollutants which may permissibly be discharged. See id. at ¶¶ 38–39.

A. Permit Requirements

Defendant's WV/NPDES permit places limits on, inter alia, the concentrations of selenium ³ that defendant may release into the water from eight discharge points: Outfalls 001, 002, 005, 014, 021, 031, 034, and 036. Id. at ¶ 40. Regulatory actions related to selenium are relatively new in West Virginia; it was not until 2003 that state and federal agencies realized the elevated potential of selenium pollution attendant to strip mining. See Ohio Valley Envtl. Coal. v. Coal–Mac, Inc., 775 F.Supp.2d 900, 904–05 (S.D.W.Va.2011). Accordingly, defendant's WV/NPDES permit did not impose selenium limitations on defendant's Outfalls 031, 034, and 036 until July 2006. See Plaintiffs' Complaint at ¶ 40. Although selenium limitations were also placed on the other five outlets in question, the effective date of those limitations was delayed by a WVDEP order (“Order 731”) until April 2010. See id. at ¶ 42.

Order 731 also included a compliance schedule which required ICG to begin construction of selenium treatment facilities by October 2008, and to complete the installation of such facilities by April 5, 2010, the same day the remaining limitations would go into effect. See id. at ¶ 43; Defendant's Exhibit 2 at 3. Additionally, Order 731 required that a more detailed plan for installation of the treatment facilities be submitted to WVDEP within one year, and stipulated that the plan would be “considered ... a modification to the NDPES Permit.” Defendant's Exhibit 2 at 3. In accordance with that requirement, ICG submitted its detailed plan in April 2008, which set forth a schedule for the construction and installation of wetland treatment facilities at Outlets 001, 002, 005, 014, and 021. Defendant's Exhibit 3 at 5. The plan was approved by WVDEP on April 8, and appended to ICG's WV/NPDES permit. Defendant's Exhibit 3 at 1.

In October 2009, ICG applied to WVDEP for another modification of its permit which would extend the April 5, 2010 effective date for the selenium limitations at Outfalls 001, 002, 005, 014, and 021 until July 1, 2012. See id. at ¶ 46; Defendant's Memorandum of Law at 3. In February 2010, WVDEP gave public notice of its intent to grant the requested extension. Id. at ¶ 47. However, in March 2010, the Environmental Protection Agency filed a formal objection to the extension, halting the permit modification process. Id. at ¶¶ 47–48. On April 2, 2010, three days before the selenium limitations were slated to take effect, WVDEP had not yet resolved the EPA's objection or made a final decision regarding the permit modification; thus, ICG filed an administrative appeal with the West Virginia Environmental Quality Board which (1) challenged the timeliness of WVDEP's decisionmaking process with respect to the requested permit modification and (2) requested that the selenium limitations be stayed from taking effect pending disposition of the appeal. Id. at ¶ 51; see Defendant's Exhibit 5 at 2–3. The EQB granted the stay. Defendant's Exhibit 5 at 26–27....