Coalition v. Fola Coal Co.
| Decision Date | 29 May 2015 |
| Docket Number | CIVIL ACTION NO. 2:13-21588 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | OHIO VALLEY ENVIRONMENTAL COALITION, WEST VIRGINIA HIGHLANDS CONSERVANCY and SIERRA CLUB, Plaintiffs, v. FOLA COAL COMPANY, LLC, Defendant. |
(Consolidated with 2:13-16044)
Pending before the Court is Defendant's Motion for Summary Judgment (ECF No. 66). For the reasons explained below, Defendant's Motion is DENIED. Plaintiffs previously filed a Motion for Summary Judgment on Jurisdictional Issues (ECF No. 64). The Court entered an Order on May 22, 2015, GRANTING Plaintiffs' motion, but reserving discussion of the bases for that decision in a later opinion (ECF No. 85). Thus, in addition to discussing bases for denial of Defendant's pending motion for summary judgment, this Memorandum Opinion and Order also sets forth the bases for the decision to grant Plaintiffs' motion for partial summary judgment.
Plaintiffs Ohio Valley Environmental Coalition ("OVEC"), West Virginia Highlands Conservancy, and Sierra Club filed this case pursuant to the citizen suit provisions of the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"), 33 U.S.C. § 1251 et seq., and the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. § 1201 et seq. Compl., ECFNo. 1. Before proceeding to the parties' arguments, the Court will first discuss the relevant regulatory framework and then the factual background of this case.
The primary goal of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To further this goal, the Act prohibits the "discharge of any pollutant by any person" unless a statutory exception applies; the primary exception is the procurement of a National Pollutant Discharge Elimination System ("NPDES") permit. 33 U.S.C. §§ 1311(a), 1342. Under the NPDES, the U.S. Environmental Protection Agency ("EPA") or an authorized state agency can issue a permit for the discharge of any pollutant, provided that the discharge complies with the conditions of the CWA. 33 U.S.C. § 1342. A state may receive approval to administer a state-run NPDES program under the authority of 33 U.S.C. § 1342(b). West Virginia received such approval, and its NPDES program is administered through the West Virginia Department of Environmental Protection ("WVDEP"). 47 Fed. Reg. 22363-01 (May 24, 1982). All West Virginia NPDES permits incorporate by reference West Virginia Code of State Rules § 47-30-5.1.f, which states that "discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by [West Virginia Code of State Rules § 47-2]."1 This is an enforceable permit condition. See, e.g., OVEC v. Elk Run Coal Co., Inc., No. 3:12-cv-0785, 2014 WL 29562, at *3, 6 (S.D. W. Va. Jan. 3, 2014).
Coal mines are also subject to regulation under the SMCRA, which prohibits any person from engaging in or carrying out surface coal mining operations without first obtaining a permit from the Office of Surface Mining Reclamation and Enforcement ("OSMRE") or an authorizedstate agency. 30 U.S.C. §§ 1211, 1256, 1257. A state may receive approval to administer a state-run surface mining permit program under the authority of 30 U.S.C. § 1253. In 1981, West Virginia received conditional approval of its state-run program, which is administered through the WVDEP pursuant to the West Virginia Surface Coal Mining and Reclamation Act ("WVSCMRA"). W. Va. Code §§ 22-3-1 to -33; 46 Fed. Reg. 5915-01 (Jan. 21, 1981). Regulations passed pursuant to the WVSCMRA require permittees to comply with the terms and conditions of their permits and all applicable performance standards. W. Va. Code R. § 38-2-3.33.c. One of these performance standards requires that mining discharges "shall not violate effluent limitations or cause a violation of applicable water quality standards." Id. § 38-2-14.5.b. Another performance standard mandates that "[a]dequate facilities shall be installed, operated and maintained using the best technology currently available . . . to treat any water discharged from the permit area so that it complies with the requirements of subdivision 14.5.b of this subsection." Id. § 38-2-14.5.c.
This controversy concerns discharges from three surface mines along the southern portion of the Leatherwood Creek watershed: (1) Fola Surface Mine No. 2 in Clay and Nicholas Counties, West Virginia; (2) Fola Surface Mine No. 4A in Clay County, West Virginia; and (3) Fola Surface Mine No. 6 in Nicholas County, West Virginia. Stipulation of the Parties ¶6, ECF No. 53.
Defendant's mining activities at Surface Mine No. 2 are regulated under WV/NDPES Permit WV1013840 and West Virginia Surface Mining Permit S201293, both originally issued in 1994. Stipulation of the Parties ¶¶6-7, ECF No. 53. WVDEP reissued WV/NPDES Permit No. WV1013840 in 2001, 2004, 2008, and 2014. At the time this complaint was filed, the 2008reissuance was in effect. Outfall 001 of Surface Mine No. 2 discharges into Road Fork and Leatherwood Creek. Id.
Defendant's mining activities at Surface Mine No. 4A are regulated under WV/NPDES Permit WV1013815 and West Virginia Surface Mining Permit S200502. Id. at ¶¶21, 23. WV/NPDES Permit WV1013815 was originally issued in 1993, and was reissued in 1999, 2006, 2008, and 2014. At the time this complaint was filed, the 2008 reissuance was in effect. Outfalls 22, 23, and 027 of Surface Mine No. 4A discharge into Right Fork of Leatherwood Creek. Id.
Finally, Defendant's mining activities at Surface Mine No. 6 are regulated under WV/NPDES Permit WV1018001 and West Virginia Surface Mining Permit S2011999, both originally issued in 2000. WVDEP reissued WV/NPDES Permit WV1018001 in 2008. At the time this complaint was filed, the 2008 reissuance was in effect. Outlets 013, 015, and 017 of Surface Mine No. 6 discharge into Cogar Hollow, a small tributary of Leatherwood Creek.
In recent years, water quality measurements from the above listed discharges have routinely shown discharges of high conductivity. Stipulation at ¶14, ECF No. 53 (); Stipulation at ¶32 (); Stipulation at ¶47 (). Water quality measurements have also revealed elevated conductivity in Leatherwood Creek and its tributaries. Id. at ¶13 (); Id. at ¶33 (); Id. at ¶46 ().
Plaintiffs moved for partial summary judgment in their favor on jurisdictional issues. Pls.' Mot. Part. Summ. J., ECF No. 64, see also Pls.' Mem. Supp. Mot. Part. Summ. J., ECF No. 65. Specifically, Plaintiffs assert that they have standing as a matter of law through their members James Tawney and Cindy Rank. Id. Defendant filed a Response in opposition, ECF No. 70, and Plaintiffs filed a Reply, ECF No. 77. Additionally, Defendant has moved for summary judgment on the grounds that: (1) conductivity is not a pollutant subject to regulation by the CWA or Fola's NPDES Permits; (2) Fola's NPDES Permits do not limit discharges of pollutants that are not specifically identified in the permits; (3) West Virginia law requires evidence of impacts to fish to prove a violation of narrative standards; (4) a permit condition incorporating all water quality standards as express effluent limitations is unenforceable; and (5) SMCRA prohibits use of state surface mining rules to circumvent the CWA permit shield. Def.'s Mot. Summ. J., ECF No. 66, Def's Mem. Supp. Mot. Summ. J. ECF No. 75. Plaintiffs filed a Response in opposition, ECF No. 71, and Defendant filed a Reply, ECF No. 78.
Both motions are ripe for resolution. In Section II, the Court discusses the legal standard applicable to motions for summary judgment. In Section III, the Court examines the parties' arguments concerning standing. In Section IV, the Court examines the parties' arguments concerning liability.
To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the Court will not "weigh the evidence and determine the truth of the matter." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in thelight most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere "scintilla of evidence" in support of his position. Anderson, 477 U.S. at 252.
"'[W]here the moving party has the burden—the plaintiff on a claim for relief or the defendant on an...
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