Kentuckians for the Commonwealth v. Rivenburgh

• Decision Date: 08 May 2002
• Docket Number: No. CIV.A.2:01-0770.,CIV.A.2:01-0770.
• Citation: 204 F.Supp.2d 927
• Court: U.S. District Court — Southern District of West Virginia
• Parties: KENTUCKIANS FOR THE COMMONWEALTH, INC., Plaintiff, v. Colonel John RIVENBURGH, Colonel, District Engineer; Robert B. Flowers, Lieutenant General, 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, and Kentucky Coal Association, Pocahontas Development Company, and AEI Resources, Inc., Intervenor-Defendants

Page 927

204 F.Supp.2d 927

KENTUCKIANS FOR THE COMMONWEALTH, INC., Plaintiff, v. Colonel John RIVENBURGH, Colonel, District Engineer; Robert B. Flowers, Lieutenant General, 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, and Kentucky Coal Association, Pocahontas Development Company, and AEI Resources, Inc., Intervenor-Defendants

No. CIV.A.2:01-0770.

United States District Court, S.D. West Virginia. Charleston Division.

May 8, 2002.

COPYRIGHT MATERIAL OMITTED

Joseph M. Lovett, Esq., John W. Barrett, Esq., Lewisburg, WV, Joe F. Childers, Esq., Lexington, KY, James M. Hecker, Esq., Trial Lawyers for Public Justice, Washington, DC, for Plaintiff.

Michael L. Keller, Esq., Kasey Warner, Esq., United States Attorney, United States Attorney's Office, Charleston, WV, Ruth Ann Storey, Esq., U.S. Department of Justice, Environment & Natural Resources Div., General Litigation Section, Washington, DC, Terry Clarke, Esq., U.S. Army Corps of Engineers, Office of Counsel, Huntington, WV, Steven E. Rusak, Esq., John C. Cruden, Esq., Jon M. Lipshultz, Esq., Thomas L. Sansonetti, Esq., U.S. Department of Justice, Environment & Natural Resources Division, Environmental Defense Section, Washington, DC, Russell W. Petit, Esq., U.S. Army Corps of Engineers, Office of Chief Counsel, Washington, DC, for Corps Defendants.

W. Henry Lawrence, IV, Esq., Robert D. Pollitt, Esq., Ancil G. Ramey, Esq., Richard L. Lewis, Esq., Steptoe & Johnson, Charleston, WV, for Defendant-Intervenor Pocahontas Development Company.

Richard J. Bolen, Esq., Huddleston, Bolen, Beatty, Porter & Copen, Huntington, WV, Timothy J. Hagerty, Esq., Amy D. Cubbage, Esq., Frost, Brown, Todd LLC, Louisville, KY, for Defendant-Intervenor AEI Resources, Inc.

Robert G. McLusky, Esq., James R. Snyder, Esq., Lindsey K. Griffith, Esq., Jackson & Kelly, Charleston, WV, for Defendant-Intervenor Kentucky Coal Association.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending are cross motions for summary judgment by Plaintiff Kentuckians for the Commonwealth, Inc. (KFTC), Defendant officers of the Army Corps of Engineers (Corps), and Intervenor-Defendants on Count One.

The Court holds that § 404 of the Clean Water Act does not allow filling the waters of the United States solely for waste disposal. Agency rulemaking or permit approval that holds otherwise is ultra vires, beyond agency authority conferred by the Clean Water Act. Only the United States Congress can rewrite the Act to allow fills with no purpose or use but the deposit of waste. Accordingly, Plaintiff's motion is GRANTED and Defendants' motions are DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Purportedly acting under the CWA, 33 U.S.C. § 1344 (§ 404), the Corps has permitted surface coal mining operations to dispose of overburden waste from mountaintop removal coal mining by filling hundreds of miles of streams in Appalachia. Appalachian coal occurs in narrow seams separated by dirt and rock called "overburden" or "spoil." In mountaintop removal mining, the overburden is blasted with explosive charges and pushed out of way to expose the coal seams. The overburden, which is nothing but waste, is disposed of by creating valley fills, that is, literally, filling the valleys with waste rock and dirt. Because mountain streams run into the valleys, creating massive valley fills has the inevitable effect of covering and obliterating many streams and the lifeforms within.

In June 2000 the Huntington (West Virginia) District office of the Corps¹ authorized Martin County Coal Corporation's (MCCC's) mountaintop removal coal mining project in Martin County, Kentucky. Authorized under a § 404 nationwide permit,² the project would create 27 valley fills, filling 6.3 miles of streams. The vast majority of the nation's valley fills are approved in the Huntington District by the Corps' officials who are Defendants here. Of the 306 NWP-21 permits issued nationwide in the year 2000, 257 were issued in the Corps' Huntington District. Kentuckians for the Commonwealth v. Rivenburgh, 204 F.R.D. 301, 305 n. 3 (S.D.W.Va.2001). All year-2000 NWP-21 permits in the nation impacted a total of 460,575 linear feet (approximately 87 miles) of stream. Id. Ninety-seven percent of stream length affected, or 449,896 linear feet (approximately 85 miles), occurred in the Huntington district under NWP-21 permits authorized here. Id.

In Count One Plaintiff complains that the primary purpose of valley fills is to dispose of waste. Under the Corps' long-standing regulations, waste disposal is not an authorized purpose for a CWA § 404 permit. See 33 C.F.R. § 323.2(e). KFTC asks the Court to find and conclude the Corps has violated § 404 of the CWA, 33 U.S.C. § 1344, and the Administrative Procedures Act (APA), 5 U.S.C. § 706(2), because its actions are arbitrary, capricious, an abuse of discretion, and otherwise contrary to law.

The Corps acknowledges, as it must, that under current Corps' regulations waste disposal cannot be permitted under § 404. According to Defendants, this is a problem created by differences between the Corps' and the EPA's definitions of "fill material," which have "admittedly resulted in confusion." (U.S. Cross Mot. for Summ. J. at 1). For that reason, the agencies have undertaken rulemaking "reconciling" the definitions and "clarifying" that overburden waste may be disposed of in valley fills under CWA § 404.³ (Id.) Additionally, Defendants argue the Court should defer to the Corps' long-standing practice of approving valley fills as "fill material" under § 404.

Both parties moved for summary judgment on these contrary interpretations of CWA § 404 and the Corps' authority to permit waste disposal under the guise of discharge of fill material.

An examination of the Clean Water Act (CWA), its legislative history, its predecessor statutes and regulations, its companion statutes, its longstanding administrative interpretation and judicial gloss has convinced the Court that § 404 was enacted for the purpose and with the effect of allowing disposal of only one type of pollutant or waste: dredged spoil. Permits for disposal of all other pollutants into national waters are to issue under CWA § 402. "Fill material," as regulated under § 404, refers to material deposited for some beneficial primary purpose: for construction work, infrastructure, improvement and development in waters of the United States, not waste material discharged solely to dispose of waste. Accordingly, approval of waste disposal as fill material under § 404 is ultra vires, that is, beyond the authority of either administrative agency, the Corps or Environmental Protection Agency (EPA). To approve disposal of waste other than dredged spoil, in particular mountaintop removal overburden, in waters of the United States under § 404 dredge and fill regulations rewrites the Clean Water Act. Such rewriting exceeds the authority of administrative agencies and requires an act of Congress.

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate where there is no genuine issue as to any material fact and judgment may be rendered as a matter of law. Fed.R.Civ.P. 56(c). The parties agree there are no issues of material fact, and the question for the Court is one of law: interpretation of § 404 of the CWA.

B. Agency Authority and the APA

Agency power is "not the power to make law. Rather, it is `the power to adopt regulations to carry into effect the will of Congress as expressed by the statute.'" Brown & Williamson Tobacco Corp. v. Food & Drug Admin., 153 F.3d 155 (4th Cir.1998)(quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-14, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)(quoting Manhattan Gen. Equip. Co. v. Comm'n, 297 U.S. 129, 134, 56 S.Ct. 397, 80 L.Ed. 528 (1936))). It is fundamental, even "axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). The issue presented is whether Congress intended to delegate to the Corps the authority to permit waste disposal as discharge of fill material under its § 404 dredge and fill permit program, absent a primary constructive purpose.

If a statute is silent or ambiguous on a specific question, a reviewing court must defer to any reasonable construction of that statute by the administering agency. Chevron, U.S.A. v. Nat'l Res. Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The agency's construction need not be the one the Court itself would adopt or the one the Court feels would best implement Congressional policy. It need only be a reasonable construction of the statutory question at issue. Id. at 844-45, 104 S.Ct. 2778.

If, however, the Court can ascertain Congress' intent on a particular question by applying the traditional rules of statutory construction, then it must give effect to that intent. Brown & Williamson, 153 F.3d at 162 (citing Chevron 467 U.S. at 843 n. 9, 104 S.Ct. 2778). Although the inquiry begins with the language of the statute, it must be considered in context of the whole law, its object and policy. See id. Congressional intent may be ascertained further through the overall statutory scheme, legislative history, "the history of evolving congressional regulation in the area," and other relevant statutes. Id. (quoting Dunn v. CFTC, 519 U.S. 465, 117 S.Ct. 913, 137 L.Ed.2d 93 (1967))(other citations omitted).

Official actions are ultra vires when the official engages in conduct that the sovereign has not authorized. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). Because administrative agencies have no power to act beyond authority conferred by Congress, the...