Commonwealth v. U.S. Army Corps of Eng'rs

• Decision Date: 23 August 2013
• Docket Number: Case No. 3:12–CV–00682–TBR.
• Citation: 963 F.Supp.2d 670
• Parties: KENTUCKIANS FOR the COMMONWEALTH, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

963 F.Supp.2d 670

KENTUCKIANS FOR the COMMONWEALTH, et al., Plaintiffs,

v.U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.

Case No. 3:12–CV–00682–TBR.

United States District Court,

W.D. Kentucky,

Louisville Division.

Aug. 23, 2013.

Jennifer C. Chavez, Neil E. Gormley, Earthjustice, Washington, DC, Stephen A. Sanders, J. Michael Becher, Appalachian MTN Advocates, Lewisburg, WV, for Plaintiffs.

Brady Miller, U.S. Attorney Office, Louisville, KY, Paul Cirino, U.S. Department of Justice–Environment & Natural Resources, Washington, DC, Ruth Ann Storey, for Defendants.

MEMORANDUM OPINION

THOMAS B. RUSSELL, Senior District Judge.

Plaintiffs, Kentuckians for the Commonwealth (“KFTC”) and the Sierra Club, brought this action seeking a declaration that the U.S. Army Corps of Engineers (“the Corps”) violated the Clean Water Act (“CWA”) and the National Environmental Policy Act (“NEPA”) in issuing a permit to Leeco, Inc. (“Leeco”), authorizing the corporation to mine-through and fill several unnamed tributaries of Stacy Branch and Yellow Creek. Plaintiffs request injunctive relief and seek judicial review of the agency's decision under the Administrative Procedure Act (“APA”).

Currently before the Court are a series of cross motions for partial summary judgment. First, Plaintiffs filed their Motion for Partial Summary Judgment on January 28, 2013, as to their human health effects claims in Counts I, II, and III. (DN 21.) Defendants responded with their own Motions for Partial Summary Judgment, (DN 33 & 34), to which Plaintiffs filed a combined response. (DN 40.) Defendants have replied. (DN 44 & 45.) Upon leave from the Court, Plaintiffs have also filed a surreply. (DN 54.)

Thereafter, the Court requested expedited briefing as to Plaintiffs' water quality claims in Count IV of their Complaint. Plaintiffs filed their Motion for Partial Summary Judgment on July 8, 2013. (DN 62.) Defendants responded with their own combined Motions for Partial Summary Judgment and responses, (DN 66 & 68), to which Plaintiffs filed a combined reply. (DN 69.) These matters are now ripe for adjudication.

For the following reasons, Plaintiffs' Motion as to Counts I, II, and III (DN 21) and as to Count IV (DN 62) are DENIED and Defendants' Motions (DN 33, 34, 66 & 68) are GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

Surface mining entails the excavation of rock to expose and remove coal seams. Once the coal is extracted, as much as possible of the excavated rock (called “spoil”) is returned to the mine site in an attempt to restore natural ground contour. However, because the loosening of the rock and soil and incorporation of air causes the spoil to “swell” to occupy more volume, much cannot be returned to the area where it was blasted. Rather, the spoil is placed in “fills” located in adjacent hollows (“hollow fills” or “valley fills”) that, due to the landscape of the Central Appalachianregion, often contain headwater streams. As discussed in further detail below, surface mining laws require that the drainage from both hollow fills and “mine through” areas pass through sediment control ponds or structures before being discharged into downstream waters. Each of these activities is subject to a series of overlapping permits and certifications involving both federal and state agencies, one of which is at issue here.

Plaintiffs initiated this challenge in October 17, 2012, after the Corps' Louisville District Office issued Permit No. LRL–2007–217 (“the Permit”) and its accompanying Permit Evaluation and Decision Document (“Decision” or “Decision Document”) to Intervening Defendant Leeco, pursuant to Section 404(a) of the CWA, 33 U.S.C. § 1344(a). The Permit authorizes Leeco to discharge fill materials into streams that qualify as “waters of the United States” under the CWA and accompanying regulations. The discharges relate to Leeco's plan to construct one hollow fill, one sediment control pond, and various “mine throughs” on unnamed tributaries of Stacy Branch and Yellow Creek of Carr Creek, located in Knott and Perry Counties, Kentucky, as part of its nearby surface coal mining operations.

On February 7, 2007, Leeco filed its original application for a permit under CWA § 404 to discharge fill material into the waters of the United States. Leeco's original proposal sought to construct six hollow fills and six sediment control ponds in various unnamed tributaries of Carr Creek. The proposed construction involved discharges into 22,761 linear feet of stream. As part of its application, Leeco submitted the Kentucky Division of Mine Permits' (“KDMP”) authorization of the mine.

The Corps issued public notice for Leeco's application on April 17, 2007, with a comment period extending through May 16, 2007. During this time period, Margaret Janes, on behalf of various environmental groups, submitted comments objecting to issuance of the permit. Leeco subsequently advised the Corps that it intended to supplement its application on various issues, including avoidance and minimization, water monitoring, and mitigation.

Then, on June 11, 2009, the Department of the Army, the Environmental Protection Agency (“EPA”), and the U.S. Department of the Interior (“DOI”) entered into a Memorandum of Understanding (“MOU”) announcing the implementation of an interagency plan to reduce the harmful environmental consequences of surface coal mining in Appalachia. One of the elements of this plan was an “enhanced coordination process” regarding Section 404 permit applications for certain Appalachian surface coal mining activities submitted prior to the MOU's execution.¹ Leeco's application was one that was recommended for additional coordination and review.

Accordingly, a 60–day formal coordination period began in September 2010 and was extended several times by mutual agreement. During the coordination period, the EPA advised the Corps that, based on its review of Leeco's permit application, it had “significant concerns” in five areas, including the avoidance and minimization of adverse environmental impacts, water quality monitoring, mitigation, and fill placement optimization. (EPA Letter 10/22/2010, Ex. D, DN 34–5.) The fifth, titled “NEPA and Environmental Justice issues,” addressed the EPA's concerns that “the proposed project may have significant human health impacts on the surrounding communities, all of which are low-income communities.” ( Id.) The EPA outlined its concerns in further detail in a subsequent communication with the Corps. (EPA Letter 12/14/2010, Ex. E, DN 34–6.)

After engaging in this coordination process, Leeco submitted a revised permit application on July 19, 2011. The revised configuration proposed construction of a single, large hollow fill and sediment pond. The new design would “impact”—Defendants' term—or “destroy”—Plaintiffs' term—a total stream length of 18,268 linear feet, or 3.5 miles, reducing the original proposal's impact by 4,593 linear feet. As mitigation, Leeco proposed to pay $752,047.50 to the Kentucky Department of Fish and Wildlife Stream and Mitigation Trust Fund for restoration projects in the vicinity of the project area. Leeco also agreed to restore 3,617 linear feet of streams at the Spring Branch Mitigation Site in Wolfe County, Kentucky. The revised application also included a Compensatory Mitigation Plan (“CMP”) for the Spring Branch site, which describes the location, goals and objectives, performance standards, and monitoring plan for the mitigation project.

Due to the revisions, the Corps issued an addendum to the Public Notice on August 5, 2011, with a comment period extending through August 19, 2011. On behalf of Sierra Club, Margaret Janes submitted comments objecting to the proposal (“August Comments”). The August Comments quoted excerpts from three studies that “have shown that coal mining has significant, negative impacts on the health of those living in the coal fields” and cited the portion of the EPA's October 22, 2010, letter discussing NEPA and environmental justice issues. (Janes Comments 8–8–11, Ex. C, 58–59, DN 21–3.) On November 11, 2011, Sierra Club submitted supplemental comments that, in addition to the previous information in the August Comments, included another study linking increased birth defects to mining activities. (Janes 11–11–11 Comments, Ex. G, 9–10, DN 21–7.) The comments also contained a number of sections dedicated to mitigation issues. ( Id. at 31–51, 59–62.) On February 15, 2012, at the Corps' request, Leeco submitted a response to the Sierra Club's comments.

On April 3, 2012, the EPA informed the Corps it had no further concerns regarding the proposed project. On May 25, 2012, the Corps completed its review. In its decision, the Corps found awarding the permit would “not significantly affect the quality of the human environment” and that, therefore, no environmental impact statement was required under the NEPA. (Permit Evaluation and Decision Document, 52, DN 28–2.) The permit went into effect on July 26, 2012.

On October 17, 2012, Plaintiffs filed the present civil action. In Count I of their Complaint, Plaintiffs argue that the Corps failed to take the required “hard look” at environmental impacts under NEPA. In Count II, Plaintiffs argue that the Corps did not consider or prevent adverse effects on human health and welfare as required by the CWA's Section 404(b)(1) Guidelines. Count III alleges that the Corps failed to consider the needs and welfare of the people, in violation of the Corps' public interest review regulations at 33 C.F.R. § 320.4, by refusing to consider or address any potential human health impacts of the Permit. Finally, Count IV asserts that the Corps violated the CWA Section 404(b)(1) Guidelines by issuing a permit that will cause or contribute to violations of water quality standards and significant degradation of waters of the United States. Plaintiffs seek a declaration that the Corps' issuance of the Permit violated the APA, CWA, and...