Ohio Valley Envtl. Coal. v. Eagle Natrium, LLC
| Decision Date | 24 March 2020 |
| Docket Number | Civil Action NO. 5:19-CV-236 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | OHIO VALLEY ENVIRONMENTAL COALITION and THE SIERRA CLUB, Plaintiffs, v. EAGLE NATRIUM, LLC, Defendant. |
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pending before this Court are Defendant's Motion for Summary Judgment [Doc. 13], Defendant's Motion for Stay of Discovery or to Modify the Scheduling Order [Doc. 36], and Defendant's Motion to Expedite Consideration of its Motion for Stay of Discovery or to Modify the Scheduling Order [Doc. 38]. All Motions have been fully briefed and are ripe for disposition.
Plaintiffs filed this citizen suit against Eagle Natrium LLC ("Eagle") under the Clean Water Act ("CWA"), alleging that Eagle has discharged pollutants from its Natrium, West Virginia plant in violation of its CWA discharge permit. Eagle has moved for summary judgment, arguing that Plaintiffs' action is barred by the CWA's preclusion provisions because the same violations have been diligently prosecuted by the West Virginia Department of Environmental Protection ("WVDEP") in 2010 and 2013 judicial consent orders.
The purpose of the Clean Water Act is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In service of those ends, the statute prohibits the "discharge of any pollutant by any person" unless such discharge complies with the provisions of the CWA. See 33 U.S.C. § 1342(a)(1). One such provision, codified at 33 U.S.C. § 1342, "established a National Pollution Discharge Elimination System ["NPDES"] ... that is designed to prevent harmful discharges into the Nation's waters." Piney Run Pres. Ass'n v. County Comm'rs of Carroll County, Maryland, 523 F.3d 453, 455-56 (2008) (quoting Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650 (2007)). NPDES requires dischargers to obtain permits that contain effluent limitations—restrictions on the type and quantity of pollutants that can be released into the water. S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004). In effect, the NPDES program transforms the generally applicable requirements of the CWA into specific obligations imposed upon individual polluters. EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205 (1976). Sierra Club v. ICG Eastern, LLC, 833 F.Supp.2d 571, 573 (N.D. W.Va. 2011).
The issuance of a NPDES permit does not authorize the recipient to pollute at will. All NPDES permits authorizing the discharge of pollutants are conditioned upon satisfaction of the applicable requirements of the Clean Water Act. 33 U.S.C. §§ 1342(a)(1) and (b)(1). . . . NPDES permits also require the holder to establish and maintain records; install, use, and maintain monitoring equipment; sample point source effluent; and submit "discharge monitoring reports" ("DMRs") at regular intervals specified in the permit. 33 U.S.C. § 1318(a)(4)(A); 40 C.F.R. § 122 .41(l)(4). "Noncompliance with a permit constitutes aviolation of the [Clean Water] Act." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 175 (2000) (citing 33 U.S.C. § 1342(h)). Sierra Club v. Powellton Coal Co., LLC, 2010 WL 454929, *1 (S.D. W.Va. Feb. 3, 2010) (Copenhaver, J.).
The Environmental Protection Agency ("EPA") initially administers the NPDES program for each state, but the states may apply for a transfer of permitting authority to state officials. Nat'l Ass'n of Home Builders, 551 U.S. at 650. Once authority is transferred, state officials are responsible for reviewing and approving NPDES permits. Id. However, the EPA retains an oversight role in the permitting process; the state must advise the EPA of each permit it proposes to issue, and the EPA may lodge an objection to any permit. Id. at 650 n. 1 (citing 33 U.S.C. §§ 1342(d)(1), (2); 40 C.F.R. § 123.44(c)). If the state fails to resubmit a revised permit that satisfies the EPA's objection, authority over the permit reverts to the EPA. Id. at 650 n. 1 (citing 33 U.S.C. § 1342(d)(4)).
The NPDES permit program is "[t]he cornerstone of the Clean Water Act's pollution control scheme...." Sierra Club v. Powellton Coal Co., LLC, 2010 WL 454929, *1 (S.D. W.Va. Feb. 3, 2010) (Copenhaver, J.), quoting Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 822 F.2d 104, 108 (D.C. Cir. 1987).
On May 10, 1982, the EPA approved West Virginia's NPDES program, 47 Fed.Reg. 22,363 (May 24, 1982), which is administered by the West Virginia Department of Environmental Protection ("WVDEP"). See Water Pollution Control Act, W.Va. Code §§ 22-11-1 through 29. Permits issued under the West Virginia NPDES program are known as West Virginia National Pollution Discharge Elimination System ("WV/NPDES")permits. Powellton Coal, at *2.
1. Eagle owns and operates a chlor-alkali plant in Natrium, West Virginia (the "Plant") that produces chlorine, caustic, brine, calcium hypochlorite, and hydrochloric acid. One of the Plant's production lines uses mercury cells to produce chlorine and caustic soda.
2. On July 14, 2005, the WVDEP issued NPDES Permit No. WV0004359 (the "Permit") to the defendant's predecessor, PPG Industries, Inc. ("PPG"), for operations at its Natrium Plant located in Marshall County, West Virginia.
3. On January 28, 2013, PPG transferred ownership of its Natrium Plant to the defendant, a subsidiary of Axiall Corporation. Eagle Natrium is now a subsidiary of Westlake Chemical.
4. The Permit is still in effect for the Plant site, having been extended on multiple occasions.
5. It sets limits on the discharges of substances from the Natrium Plant into the Ohio River. Of principal interest for purposes of this lawsuit were the limits for mercury discharges from Outlet 009 and Benzene hexachloride ("BHC"), in the form of BHC-Alpha, BHC-Beta, and BHC-Gamma from Outlets 011 and 012.
6. On May 15, 2009, WVDEP filed a civil action against PPG in the Circuit Court of Marshall County, West Virgnia, for violations of WV/NPDES Permit No. WV0004359.
7. That lawsuit, Mandirola v. PPG Industries, Inc., Marshall County Civil Action No. 09-C-98H, is still active on the Court's docket.
8. The Complaint alleged violations of discharge limitations for "among other things, Mercury, Iron, Copper, Chlorine, Total Suspended Solids, Sulfides and Aluminum" and requested an injunction against further noncompliant discharges and demanded penalties.
9. As a result of that suit, the parties entered into a consent order (the "Consent Order") on August 18, 2010, which set forth the terms for compliance, including work on the water wells, mercury treatment system, and chlorine sewer; assessed penalties in the amount of $1,370,000 for past noncompliance; stipulated penalties between $1,000 and $6,000 for future noncompliance with any Permit limits; and ordered quarterly reporting on compliance activities. For injunctive relief, the 2010 order directed PPG to install and operate treatment technology by July 31, 2011, that was "capable of treating water to a level that ensures compliance with effluent limitations at PPG's outfalls."
10. The Consent Order was approved by the Circuit Court of Marshall County on August 18, 2010.
11. The parties subsequently stipulated to the First Amendment to the Consent Order (the "First Amendment"), which was approved by the Circuit Court of Marshall Countyon May6, 2013.
12. The 2013 order imposed a civil penalty of an additional $248,968 for the violations through May 6, 2013.
13. The Permit limits for mercury were originally set at 0.124 μg/L4 monthly average and 0.215 μg/L daily maximum, as a mixing zone for mercury was permitted until October 16, 2013. The Permit limits for mercury were set to change on October 16, 2013.
14. After October 16, 2013, the defendant would have been expected to meet mercury standards "end-of-pipe", meaning no mixing zone would be allowed and Permit mercury limits would have been 0.0088 μg/L monthly average and 0.0208 μg/L daily maximum.
15. The Permit limits for mercury were set to change on October 16, 2013, because that was the date set by the Ohio River Valley Water Sanitation Commission ("ORSANCO") for the elimination of mixing zones for certain substances in the Ohio River.
16. Knowing that end-of-pipe mercury limits would be difficult to achieve, the defendant petitioned ORSANCO to approve a variance from the PCS Chapter 4.F mixing zone prohibition.
17. The variance request was approved by the WVDEP on October 11, 2012, with an effective date of October 16, 2013.
18. On October 10, 2013, ORSANCO voted to extend the beginning date of the prohibition of mixing zones for BCCs and to change the effective date of the defendant's variance to October 16, 2015.
19. On October 8, 2015, before any mixing zone prohibition for BCCs could go into effect, ORSANCO approved a change in PCS Chapter 4.F and required the elimination of mixing zones for BCCs "as soon as practicable as determined by the permitting authority" rather than by a date certain.
20. The defendant was then issued Administrative Order 8463 ("AO 8463") by the WVDEP on October 15, 2015, which established interim mercury limitations of 0.124 ug/L monthly average and 0.215 ug/L daily maximum were established, effective until February 28, 2016.
21. The defendant was also ordered to develop a plan for meeting end-of-pipe mercury limits and submit it to the WVDEP by January 31, 2016. The defendant did so, but the WVDEP did not complete its review of the plan, and by letter extended the interim mercury limits established by AO 8463 to June 30, 2016.
22. A subsequent order has extended the interim limits of AO 8463 to June 30, 2020.
23. Neither the 2015 ACO nor the 2016 and 2019 amendments to it were subjected to public notice or opportunity for comment.
24. If the interim limits...
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