Nat'l Mining Ass'n v. Jackson, Civil Action Nos. 10–1220 (RBW), 11–0295(RBW), 11–0446(RBW), 11–0447(RBW).

• Decision Date: 31 July 2012
• Docket Number: Civil Action Nos. 10–1220 (RBW), 11–0295(RBW), 11–0446(RBW), 11–0447(RBW).
• Citation: 880 F.Supp.2d 119
• Parties: NATIONAL MINING ASSOCIATION, et al., Plaintiffs, v. Lisa JACKSON, Administrator, U.S. Environmental Protection Agency, et al., Defendants, and Sierra Club, et al., Defendant–Intervenors.
• Court: U.S. District Court — District of Columbia

880 F.Supp.2d 119

NATIONAL MINING ASSOCIATION, et al., Plaintiffs,

v. Lisa JACKSON, Administrator, U.S. Environmental Protection Agency, et al., Defendants,andSierra Club, et al., Defendant–Intervenors.

Civil Action Nos. 10–1220 (RBW), 11–0295(RBW), 11–0446(RBW), 11–0447(RBW).

United States District Court, District of Columbia.

July 31, 2012.

Kirsten L. Nathanson, David Yolun Chung, John C. Martin, Crowell & Moring LLP, Washington, DC, Benjamin L. Bailey, Bailey & Glasser LLP, Charleston, WV, Mindy G. Barfield, Dinsmore & Shohl, Lexington, KY, for Plaintiffs.

Cynthia J. Morris, Kenneth C. Amaditz, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

This case is before the Court on the parties' cross-motions for partial summary judgment regarding the Final Guidance memorandum issued by the Environmental Protection Agency (“EPA”) on July 21, 2011.¹See Plaintiffs' Motion for Partial Summary Judgment (“Pls.' Mot.”); United States' Motion for Partial Summary Judgment (“Defs.' Mot.”). The Court heard oral argument on the motions on July 13, 2012. For the reasons that follow, the plaintiffs' motion will be granted and the defendants' motion will be denied. ²

I. STATUTORY AND REGULATORY BACKGROUND

A. The Surface Mining Control and Reclamation Act

“The Surface Mining Control and Reclamation Act embodies Congress' recognition that ‘the expansion of coal mining to meet the Nation's energy needs makes even more urgent the establishment of appropriate standards to minimize damage to the environment....” In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514, 516 & 516, n. 1 (D.C.Cir.1981) (“In re PSMRL ”) (citing 30 U.S.C. § 1201). Accordingly, the SMCRA requires those engaging in surface coal mining operations to comply with permitting requirements and environmental protection standards. 30 U.S.C. §§ 1202, 1256–1266 (2006). The SMCRA is administered and enforced by the Department of the Interior's Office of Surface Mining Reclamation and Enforcement (“Office of Surface Mining”), 30 U.S.C. § 1211(c)(1), but a state may assume primary jurisdiction over the regulation of surface mining within its borders by having its proposed program approved by the Secretary of the Interior,³30 U.S.C. § 1253. Pursuant to the SMCRA, before approving a state program the Secretary must solicit and then publicly disclose the views of certain federal agencies regarding the state regulatory program and must obtain the written concurrence of the EPA with respect to the aspects of the state program that relate to water quality standards promulgated under the Clean Water Act, 33 U.S.C. § 1313 (2006). 30 U.S.C. § 1253(b). Once a state program is approved, the state has the primary responsibility for all aspects of the regulatory program. See In re PSMRL, 653 F.2d at 516 (“The Secretary may only approve the state program if he finds it capable of carrying out the exacting provisions of the [SMCRA] and consistent with his own regulations.”); id. at 518 (“Under a state program, the state makes decisions applying the national requirements of the [SMCRA] to the particular local conditions of the state. The Secretary is initially to decide whether the proposed state program is capable of carrying out the provisions of the [SMRCA], but is not directly involved in local decisionmaking after the program has been approved.”).

The statute provides only a limited role for the EPA. First, the SMCRA requires the Secretary of the Interior to obtain the EPA's written concurrence on any SMCRA-implementing regulations that relate to air or water quality standards. Second, as noted, the Office of Surface Mining may not approve a proposed state program until it has solicited and publicly disclosed the EPA's views and obtained the EPA's written concurrence as to any aspects of the state program that relate to water quality standards promulgated under the CWA. In short, although the SMCRA explicitly conveys Congress's admonition that the EPA cooperate with the Office of Surface Mining to the greatest extent practicable, 30 U.S.C. § 1292, it is clear that oversight authority of the state permitting authorities belongs to the Secretary of the Interior. See In re PSMRL, 653 F.2d at 519 (“The Secretary's ultimate power over lax state enforcement is set out in section 521(b) of the [SMCRA]. When the Secretary determines that violations result from a state's lack of intent or capability to enforce the state program, he is to enforce permit conditions directly, and to take over the entire permit-issuing process himself.”); see also id. (“Once the State has assumed all these functions, the Secretary's role is primarily one of oversight.”); id. at 520 (“Direct intervention by the Secretary in the operation of state regulatory programs is clearly intended as an extraordinary remedy.”) And of significant importance, the SMCRA does not supersede the Clean Water Act. See30 U.S.C. § 1292.

B. The Clean Water Act

The CWA establishes a permitting scheme for pollutants discharged into bodies of water, and coal mining operations typically must obtain both CWA permits and SMCRA permits.

1. Section 404 Permits

Clean Water Act Section 404 permits are issued by the United States Army Corps of Engineers (“Corps”) “for the discharge of dredged and fill material into navigable waters at specific disposal sites,” 33 U.S.C. § 1344(a), and govern material that fills or displaces receiving waters. The Corps has sole authority to issue Section 404 permits, id., but in doing so must apply guidelines that it develops in conjunction with the EPA, id. § 1344(b). As required by the Clean Water Act, id., the EPA and the Corps promulgated 404(b)(1) guidelines to guide the Corps' review of the environmental effects of proposed disposal sites.⁴

2. Section 402 Permits

Known as National Pollutant Discharge Elimination System (“NPDES”) permits, Section 402 permits are typically issued by states for the discharge of all other pollutants not covered by Section 404 permits (i.e., non-dredged or fill material). See33 U.S.C. § 1342(a). NPDES permits govern pollutants that are assimilated by receiving waters by establishing limits placed on the make-up of wastewater discharge. See33 U.S.C. § 1342.

Section 402 permits are issued by the EPA, unless a state has an approved program.⁵See id. § 1342(b). Once the EPA approves a state permitting program, the state has exclusive authority to issue NPDES permits, although the EPA does have limited authority to review the state action. Id. § 1342(d). For example, the state must submit draft permits to the EPA, and the EPA may object to a proposed permit that is not consistent with the CWA or federal regulations. Id. If the state does not respond to an EPA objection to a permit within specified timeframes, the EPA assumes the authority to issue the permit. See id. § 1342(d)(4). If the EPA does not object to the issuance of a permit within the specified timeframe, the state may proceed to issue the permit. Id. § 1342(d)(2).

a. The Relationship Between Section 301 Effluent Limits and Section 402 Permits

In accordance with Section 301 of the CWA, 33 U.S.C. § 1313, NPDES permits “typically contain numerical limits called ‘effluent limitations'⁶ that restrict the amounts of specified pollutants that may be discharged.” Defs.’ Mem. at 9. “Water quality based effluent limitations are required for all pollutants that the permitting authority determines ‘are or may be discharged at a level [that] will cause, have the reasonable potential to cause, or contribute to an excursion above any [applicable] water quality standard, including state narrative criteria for water quality.’ ” Id. (quoting 40 C.F.R. § 122.44(d)(1)(i)). Accordingly, the procedure for determining the need for effluent limits is called a reasonable potential analysis. If the discharge does have the reasonable potential to cause an excursion ⁷ above a numeric or narrative water quality standard set in accordance with Section 303 of the CWA, the state must develop permit limitations to ensure compliance with that water quality standard. See Am. Paper Inst. v. EPA, 996 F.2d 346, 349 (D.C.Cir.1993) (explaining that Section 301 of the CWA, 33 U.S.C. § 1311, requires that “every permit contain (1) effluent limitations that reflect the pollution reduction achievable by using technologically practicable controls, and (2) any more stringent pollutant release limitations necessary for the waterway receiving the pollutant to meet water quality standards”) (citing 33 U.S.C. § 1311(b)(1)(A) & (C)). To achieve this compliance, the states may establish either numeric or narrative permit limits. See id. (noting that criteria come in “two varieties: specific numeric limitations on the concentration of a specific pollutant in the water ... or more general narrative statements applicable to a wide set of pollutants”).

3. Section 303 Water Quality Standards

Section 303 “requires states to adopt water quality standards applicable to their intrastate and interstate waters.” Defs.' Mem. at 8 (citing 33 U.S.C. § 1313(a)-(c)); see also Am. Paper. Inst., 996 F.2d at 349 (“Under the CWA, the water quality standards referred to in section 301 [and which the Section 301 effluent limitations are intended to protect] are primarily the states' handiwork.”); id. at 350 (“Of course, the [section 303] water quality standards by themselves have no effect on pollution; the rubber hits the road when the state-created standards are used as the basis for specific [section 301] effluent limitations in NPDES permits [i.e., Section 402 permits].”). A water quality standard designates uses for a particular body of water and establishes criteria for protecting those uses. As already noted, Section 303 water quality standards can be expressed as a specific numeric limitation on pollutants or as a general narrative statement.

While states are responsible for developing the water...