Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers

• Decision Date: 24 November 2009
• Docket Number: Civil Action No. 3:08-0979.
• Citation: 674 F.Supp.2d 783
• Court: U.S. District Court — Southern District of West Virginia
• Parties: OHIO VALLEY ENVIRONMENTAL COALITION, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

674 F.Supp.2d 783

OHIO VALLEY ENVIRONMENTAL COALITION, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

Civil Action No. 3:08-0979.

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

November 24, 2009.

Opinion Denying Relief February 12, 2010.

COPYRIGHT MATERIAL OMITTED

Derek O. Teaney, Joseph Mark Lovett, Lewisburg, WV, James M. Hecker, Trial Lewyers for Public Justice, Washington, DC, for Plaintiffs.

Ann D. Navaro, U.S. Army Corps of Engineers, Cincinnati, OH, Cynthia J. Morris, Ruth Ann Storey, Sean E. Martin, U.S. Department of Justice, Environmental Defense Section, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, District Judge.

Pending before the Court are several motions by the parties for full or partial summary judgment: Plaintiffs' Motion for Partial Summary Judgment Against the Loadout Nellis Surface Mine (Doc. 112); Intervenor-Defendant, Loadout, LLC's, Motion for Summary Judgment (Doc. 115); Intervenor-Defendant, Fola Coal Company, LLC's, Motion for Partial Summary Judgment (Doc. 135); Plaintiffs' Cross-Motion for Partial Summary Judgment (Doc. 139); and Intervenor-Defendant, Fola Coal Company, LLC's, Motion for Summary Judgment (Doc. 150). For the reasons explained below, the Court GRANTS in part and DENIES in part Parties' motions.

More specifically, the Court RULES as follows 1. The Court FINDS the Corps violated the Clean Water Act and the National Environmental Policy Act by failing to provide adequate public notice and comment regarding Loadout's § 404 permit. Therefore, Plaintiffs' Motion for Partial Summary Judgment Against the Loadout Nellis Surface Mine on Count 5 of their Third Amended Complaint [Plaintiffs' claim that the Corps violated its obligations under the CWA and NEPA to provide adequate notice and comment and to involve the public in its environmental impact analysis when it issued a § 404 permit for Loadout's Nellis Surface Mine (Doc. 112)]¹ is GRANTED.

2. Intervenor-Defendant Loadout's motion for summary judgment on Counts 5, 6 and 7 of Third Amended Complaint [Plaintiffs' claims that: the Corps violated the CWA and NEPA because (1) they failed to provide adequate public notice and comment on Loadout's § 404 permit and adequate pre-decisional public involvement in its preparation of the relevant Environmental Assessment (Count 5); (2) the Corp's determination that Loadout's Nellis Surface Mine will not cause significant degradation of water of the U.S. is illegal, arbitrary and capricious (Count 6); and (3) the Corps' Finding of No Significant Impact on the Nellis Surface Mine violates NEPA and is arbitrary and capricious because the Corps failed to take a hard look at the environmental impacts of the project (Count 7) (Doc. 115)] is GRANTED in part and DENIED in part. The motion is GRANTED insofar as it is controlled by the Fourth Circuit's decision in Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 177 (2009) (Counts 6 & 7). However, it is DENIED with regard to Count 5, Plaintiffs' claim that the Corps failed to provide adequate public notice and comment.

3. The Court FINDS the Corps violated the CWA and NEPA by failing to provide adequate public notice and comment regarding Fola's § 404 permits. Therefore, Intervenor-Defendant Fola's motion for partial summary judgment on Count 1 of Plaintiffs' Fourth Amended Complaint [Plaintiffs' claim that the Corps violated the CWA and NEPA by failing to provide adequate notice and comment on, and pre-decisional public involvement in, the § 404 permit for Fola's Ike Fork No. 1 and Ike Fork No. 2 Surface Mines (Doc. 135)] is DENIED and Plaintiffs' cross-motion for partial summary judgment on the same claim (Doc. 139) is GRANTED.

4. Intervenor-Defendant Fola's motion for summary judgment as to each count against it in Plaintiffs' Fourth Amended Complaint (Counts 1-4) [(1) Plaintiffs' claim regarding notice and comment (Count 1); (2) Plaintiffs' claim that the Corp's determination that Fola's mines will not cause significant degradation of waters of the U.S. is illegal, arbitrary and capricious (Count 2); (3) the claim that the Corps' Finding of No Significant Impact on the Ike Fork permits violates NEPA and is arbitrary and capricious (Count 3); and (4) Plaintiffs' claim that the Corps does not have jurisdiction to issue a § 404 permit for discharges from the toes of valley fills and, thus, the attempt to permit these discharges violates the CWA (Count 4) (Doc. 150)] is GRANTED in part, DENIED in part, and partially HELD IN ABEYANCE. The motion is GRANTED insofar as it is controlled by the Fourth Circuit's decision in Ohio Valley Environmental Coalition v. Aracoma Coal Co. (Counts 2 & 4, and all of Count 3 except ¶ 76 g.); it is DENIED with regard to Count 1, Plaintiffs' claim that the Corps failed to provide adequate public notice and comment; and the motion is HELD IN ABEYANCE with regard to Plaintiffs' claim that the Corps had no reasoned basis or substantial evidence to conclude that the selenium discharges from Fola's Ike Fork mines would be individually or cumulatively insignificant (Count 3, ¶ 76 g.).

I. Background

A. Procedural History and Relevant Case Law

In a complaint filed on August 7, 2008, Plaintiffs sought declaratory and injunctive relief on claims that the U.S. Army Corps of Engineers ("the Corps") failed to comply with § 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., when issuing a permit for a large surface mine— the Hobet Surface Mine No. 22—in Lincoln County, West Virginia. Since that time, Plaintiffs' claims regarding Hobet Mining's § 404 permit have been resolved. See Pl.'s Mot. for Leave to File a Third Am. Compl. (Doc. 85) (dismissing claims against the Corps related to Hobet Surface Mine No. 22). However, in the year that followed the original complaint, Plaintiffs amended their suit to add several claims against the Corps regarding surface mines operated by three additional companies: Fola Coal Company, LLC ("Fola"), Loadout, LLC ("Loadout"), and Appalachian Fuels, LLC ("AppFuels"). See Pl.'s Second Am. Compl. (Doc. 58) (adding claims related to Fola's Ike Fork No. 1 and Ike Fork No. 2 Surface Mines); Pl.'s Third Am. Compl. (Doc. 120) (adding claims related to Loadout's Nellis Surface Mine); Pl.'s Fourth Am. and Supplemental Compl. (Doc. 121) (adding claims related to AppFuels' Fourmile North Surface Mine). These claims took two primary forms: (1) substantive, and (2) procedural. With regard to their substantive claims, Plaintiffs argued that the permits violated the CWA § 404(b)(1) Guidelines ("CWA Guidelines") and that the Corps' Findings of No Significant Impact ("FONSI") and related Environmental Assessments ("EA") violated NEPA. With regard to their procedural claims, Plaintiffs contend that the Corps failed to comply with its duties under the CWA and NEPA to provide adequate public notice, public comment, and other public involvement in its review process for the mines' § 404 permits.

For the most part, Plaintiffs' substantive claims are controlled by the Fourth Circuit's decision in Ohio Valley Environmental Coalition v. Aracoma Coal Company, 556 F.3d 177 (2009). In Aracoma, the Fourth Circuit reversed two orders by this Court regarding the legality of the Corps' conduct in issuing four § 404 permits. The facts surrounding the permits at issue in Aracoma are similar to the facts in the instant case. There, the Corps issued each of the contested permits after an EA and a FONSI. Plaintiffs then challenged the permits, arguing their issuance violated both substantive and procedural provisions of the CWA and NEPA. Specifically, Plaintiffs claimed: (1) that the individual and cumulative adverse impacts of the permits were significant and, thus, the Corps was required under NEPA to complete an Environmental Impact Statement ("EIS"); and (2) that the permits were invalid because the Corps failed to properly determine the adverse individual and cumulative impacts as required by the CWA and the CWA Guidelines. This Court agreed with Plaintiffs, granting summary judgment in their favor and finding that: the probable impacts of the permitted valley fills would be significant and adverse under the CWA and NEPA; the mitigation plans for the permits were not sufficient to compensate for these impacts; the Corps improperly limited its scope of NEPA review to jurisdictional waters, rather than the impact of an entire valley fill project; and the Corps did not adequately evaluate cumulative impacts. See id. at 188.

However, the Fourth Circuit disagreed and reversed this Court, holding: (1) the Corps' decision regarding the scope of its NEPA analysis was entitled to deference and the Corps was reasonable in limiting the scope of its analysis to the impact of filling jurisdictional waters; (2) the Corps adequately supported its mitigated FONSIs under NEPA and its findings of no significant degradation under the CWA²; and (3) the Corps did not exceed its § 404 authority in permitting "unitary waste systems" consisting of sediment ponds together with the stream segments that connect them. Id. at 197, 200-01, 206-07, 209, 216. For each of its holdings, the Fourth Circuit relied heavily on a theory of agency deference. Specifically, the Circuit Court relied on Auer or Seminole Rock deference, a "highly deferential" kind of review that is appropriate when a court reviews an agency's interpretation of its own regulations, see, e.g., id. at 193 (citing Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)), as well as on Baltimore Gas & Electric Company v. Natural Resources Defense Council, 462 U.S. 87, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983), which holds that a court must be at its "most deferential" when reviewing agency...