Kentuckians for the Commonwealth v. Rivenburgh

• Decision Date: 17 June 2002
• Docket Number: No. CIV.A.2:01-0770.,CIV.A.2:01-0770.
• Citation: 206 F.Supp.2d 782
• 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.

206 F.Supp.2d 782

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.

June 17, 2002.

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Joseph M. Lovett, Esq., John W. Barrett, Esq., Lewisburg, 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, 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, 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, for Defendant-Intervenor Pocahontas Development Company.

Richard J. Bolen, Esq., Huddleston, Bolen, Beatty, Porter & Copen, Huntington, 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, for Defendant-Intervenor Kentucky Coal Association.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending are the motions of the Defendants, officers of the Army Corps of Engineers ("Corps"), and Intervenor-Defendants (together "Movants") for a stay pending appeal and for clarification of the Court's injunction order of May 8, 2002. Also pending are motions by Plaintiff for further injunctive relief and by Intervenor-Defendant Kentucky Coal Association to dismiss for failure to join a necessary party or, alternatively, to transfer venue.

I. BACKGROUND

Early in 2002 the parties cross-moved for summary judgment on Count One, which complained the Corps' issuance of Clean Water Act ("CWA") § 404 permits for valley fills to dispose of waste violated the Corps' own regulations, the CWA, and the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(2), because the actions were arbitrary, capricious, an abuse of discretion, and otherwise contrary to law. Following examination of the legislative history and statutory language of the CWA, the longstanding regulations of the Corps and the Environmental Protection Agency ("EPA"), interagency agreement concerning § 404 permit approval under the Resource Conservation and Recovery Act, and relevant provisions of the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), the Court concluded approval of § 404 permits solely for waste disposal¹ was contrary to law and ultra vires. Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 204 F.Supp.2d 927, 941 (S.D.W.Va.2002)("May 8 Opinion").

In § 404, Congress intended to maintain the dredge and fill permit program previously authorized under § 10 of the Rivers and Harbors Act of 1899. Id. 204 F.Supp.2d at 934-35. While waterway dredging and dredged spoil disposal were permitted under the § 404 program, disposal of other pollutants was regulated under § 402. Id. at 935. Under the previous Corps program, continued by § 404, fills had a constructive primary purpose and were not allowable solely for disposal of waste. Congress clarified this understanding in 1977 when it amended § 404 of the CWA to require:

Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters reduced, shall be required to have a permit under this section [404].

33 U.S.C. § 1344(f)(2). Section 404 permits are issuable for fills devoted to some useful purpose, "a use to which [the area] was not previously subject." Id.

After reviewing Defendants' arguments in support of § 404 permits for valley fill waste disposal, the Court concluded permitting § 404 fills solely to dispose of waste is "contrary to the spirit and the letter of the Clean Water Act." Id. 204 F.Supp.2d at 946. The Court then ruled:

The Corps Defendants are ENJOINED from issuing any further § 404 permits that have no primary purpose or use but the disposal of waste. In particular, issuance of mountaintop removal overburden valley fill permits solely for waste disposal under § 404 is ENJOINED." Id.

II. PERMANENT INJUNCTION

Movants request various clarifications of the May 8 injunction. They also object the injunction is overbroad and was issued without necessary factual findings. The Court will consider the Movants' requests for clarification, set out the standard for permanent injunctions and test the injunction as moulded.

A. No Nationwide Scope

Movants question whether the injunction has nationwide application, and object it should not. Two of the three Corps Defendants (Rivenburgh, Gheen) are before the Court because they issue § 404 permits in the Corps' Huntington (West Virginia) District.² Defendant Flowers supervises and manages all Corps decisions and actions, including evaluation of § 404 permit decisions. (Compl. ¶ 4.) The Court intended to enjoin these three, the "Corps Defendants," who are properly before the Court, from issuing § 404 permits from their ordinary place of business, the Huntington District.³ The May 8 injunction does not have nationwide scope. However, because ninety-seven percent (97%) of stream length affected by valley fills in the nation, approximately 85 miles in the year 2000, was permitted by these Defendants in the Huntington District, the injunction necessarily will have substantial national impact. See Kentuckians, 204 F.Supp.2d at 929.

B. Application to Activities Other Than Coal Mining

Movants next ask whether the injunction applies to activities other than coal mining or surface coal mining.⁴ Examination of the CWA demonstrates Congress did not intend § 404 as an alternative permitting program for waste or pollutant disposal, with the single exception of disposal of dredged spoil. See Kentuckians, 204 F.Supp.2d at 934. While mountaintop removal overburden disposal in valley fills apparently constitutes the strongest example, it may not be the only case where § 404 permits are issued solely for waste disposal without a primary constructive purpose for the fill. The Corps Defendants are enjoined from issuing "§ 404 permits that have no primary purpose or use but the disposal of waste." Id. 204 F.Supp.2d at 946. By the plain terms of the order, permits for all activities fitting this description are enjoined.

C. Dredged Spoil Disposal

As discussed at length in the May 8 Opinion, dredging of navigable waters and disposal of the resultant spoil was the crucial concern of Congress when it chose to maintain the Corps' dredge and fill permit program. See Kentuckians, 204 F.Supp.2d at 933-34. Nothing in the Court's findings, conclusions, or injunction is intended to alter or interfere with dredging and dredged spoil disposal under § 404.

D. Rulemaking

According to the United States, the injunction is overbroad because it may be seen to call into question the Corps' and EPA's May 3, 2002 rulemaking regarding agency definitions of "fill material." The rule, it is claimed, "was not properly challenged in this case ... and the Federal Defendants were never given notice that its validity would be considered by the Court." (U.S. Mot. for Stay at 15.)

The injunction makes no reference to the rulemaking and does not enjoin or curtail it. The Corps, however, was the party that raised the issue of the proposed rule's validity. Defendants are reminded of their argument for summary judgment that 1) permitting § 404 valley to dispose of waste was a longstanding Corps' practice and 2) if the regulations supporting that practice were unclear or questioned, the forthcoming rulemaking would ensure the practice was legal, and moot the issues of Count One. (See, e.g., Mem. in Opp'n to Pl.'s Mot. for Summ. J. at 4-7 (setting forth proposed rule to demonstrate Corps' authority to permit valley fills under § 404).)

The Government's argument required the Court to consider the proposed rule and the agencies' complete explanations for that definitional change, contained in both the proposed and final rulemaking. See 65 Fed.Reg. 21292 (April 20, 2002); 67 Fed.Reg. 31129 (May 9, 2002)(signed pre-publication copy provided to the Court). These materials were referenced by the parties, provided to the Court, and thoroughly and carefully examined.

Based on its analysis of the CWA and the legislative and regulatory history of § 404, the Court found the agencies' proposed rule was contrary to the spirit and letter of the CWA, inconsistent with the statutory scheme, and therefore ultra vires. See Kentuckians, 204 F.Supp.2d at 945. For these reasons, the Court concluded the Government's argument failed because the proposed rule did not moot the issue of Corps' authority to permit waste fills under § 404.

E. Permanent Injunction Standard

As an equitable remedy, injunctive relief should be awarded...