Ohio Valley Envtl. Coal., Inc. v. Maple Coal Co., Civil Action No. 3:11–0009.

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtROBERT C. CHAMBERS
Citation80 Fed.R.Serv.3d 929,808 F.Supp.2d 868
PartiesOHIO VALLEY ENVIRONMENTAL COALITION, INC., West Virginia Highlands Conservancy, Inc., and Sierra Club, Plaintiffs, v. MAPLE COAL COMPANY, Defendant.
Decision Date02 September 2011
Docket NumberCivil Action No. 3:11–0009.

80 Fed.R.Serv.3d 929
808 F.Supp.2d 868

OHIO VALLEY ENVIRONMENTAL COALITION, INC., West Virginia Highlands Conservancy, Inc., and Sierra Club, Plaintiffs,

Civil Action No. 3:11–0009.

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

Sept. 2, 2011.

[808 F.Supp.2d 873]

Benjamin A. Luckett, Derek O. Teaney, Joseph Mark Lovett, Appalachian Center for the Economy and the Environment, Lewisburg, WV, for Plaintiffs.

Christopher B. Power, Mychal Sommer Schulz, Robert M. Stonestreet, Dinsmore & Shohl, Charleston, WV, for Defendant.

ROBERT C. CHAMBERS, District Judge.

Pending before the Court are Plaintiffs' Motion for Partial Summary Judgment (ECF 7), Plaintiffs' Supplemental Motion for Partial Summary Judgment (ECF 13), Defendant's Motion to Dismiss and Motion to Abstain (ECF 23), and Defendant's Cross–Motion for Summary Judgment (ECF 62). A hearing was held on the motions on August 26, 2011. All briefing has been submitted, and the issues are ripe for disposition. For the reasons that follow, Plaintiffs' motion for partial summary judgment is DENIED as moot; Plaintiffs' supplemental motion is GRANTED in part and DENIED in part; Defendant's motion to dismiss is GRANTED in part and DENIED in part; and Defendant's cross-motion for summary judgment is GRANTED in part and DENIED in part.

A. Regulatory Framework

The primary goal of the Federal Water Pollution Control Act (“CWA” or 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). To further this goal, the Act prohibits the “discharge of any pollutant by any person” unless a statutory exception applies; the primary exception is the procurement of a National Pollution Discharge Elimination System (“NPDES”) permit. 33 U.S.C. §§ 1311(a), 1342. Under the NPDES, the U.S. Environmental Protection Agency (“EPA”) or authorized state agency can issue a permit for the discharge of any pollutant, provided that the discharge complies with the conditions of the CWA. 33 U.S.C. § 1342. A state may receive approval to administer a state-run NPDES program under the authority of 33 U.S.C. § 1342(b). West Virginia received such approval and its NPDES program is administered through the West Virginia Department of Environmental Protection (“WVDEP”). Its implementation of the NPDES program, however, remains subject to review by the EPA.

For each permit application, the WVDEP must send notice of the application to the EPA, including a copy of the proposed permit, and subsequent notice “of every action related to the consideration of such permit application.”

[808 F.Supp.2d 874]

33 U.S.C. §§ 1342(b)(4), 1342(d)(1). All requests for modifications to existing permits must also comply with these requirements. W. Va.Code R. § 47–10–9.1.c.1. The EPA has the authority to object to a draft permit or modified permit within ninety days of notification on the grounds that the permit is “outside the guidelines and requirements” of the CWA. 33 U.S.C. § 1342(d)(2); Am. Paper Inst., Inc. v. EPA, 890 F.2d 869, 871 (7th Cir.1989). If the EPA elects to do so, “it provides a comment period, and a public hearing when requested by the state or interested parties.” Am. Paper Inst., 890 F.2d at 871 (citing 40 C.F.R. § 123.44(e) (1988)). Subsequently, the EPA must “modify, withdraw, or reaffirm its objections.” Id. (citing 40 C.F.R. § 123.44(g) (1988)). If the objection is reaffirmed or modified, the State may resubmit the permit in order to comply with the stated EPA objection. Id. If the State refuses to comply with the objection, the permit may not be issued by the WVDEP; instead, authority to issue the permit passes to the EPA. 33 U.S.C. § 1342(d)(4); W. Va.Code R. § 47–10–3.6.b.

Coal mines are also subject to regulation under the Surface Mining Control and Reclamation Act (“SMCRA”) and the West Virginia Surface Coal Mining and Reclamation Act (“WVSCMRA”). The scheme under the SMCRA is somewhat different from the CWA, exhibiting greater deference to the states. See Bragg v. W.Va. Coal Ass'n, 248 F.3d 275, 293 (4th Cir.2001). Once a state receives “primacy” to administer its own program under 30 U.S.C § 1253, federal standards effectively “drop out” in favor of the state regulations, which then become the operative law. Id. at 295. As both the Bragg panel and this Court recognized, however, not all provisions of SMCRA “drop out.” Id.; Ohio Valley Envtl. Coal., Inc. v. Apogee Coal Co., 531 F.Supp.2d 747, 760–64 (S.D.W.Va.2008) (denying Defendants' motion to dismiss). Although federal law is not directly enforceable, a cause of action exists to pursue certain violations of state law in federal court. Ohio Valley Envtl. Coal., 531 F.Supp.2d at 760–64. West Virginia has been granted primacy under SMCRA and administers its state program through the WVDEP. Three regulations passed pursuant to WVSCMRA are relevant to the present suit. First, mining must be conducted in such a manner so as to “prevent material damage to the hydrologic balance outside the permit area.” W. Va.Code R. § 38–2–14.5. Second, mining discharges “shall not violate effluent limitations or cause a violation of applicable water quality standards.” Id. at § 38–2–14.5b. Finally, applicable performance standards are incorporated as a condition of all mining permits. Id. at § 38–2–3.33c.

Both the WVDEP and the EPA have recognized the potentially harmful effects of selenium for some time. EPA promulgated the first water quality criterion for selenium in 1987–5 micrograms per liter of water (5 µg/l)—a criterion subsequently adopted by WVDEP. It was not, however, until a draft Programmatic Environmental Impact Statement on the effects of mountaintop removal, published in 2003, that it became clear selenium discharges from surface mines had the potential to violate the applicable water quality standard. With such information, the WVDEP was forced to consider the selenium water quality standard when it issued NPDES permits to mine operators and to include water quality based effluent limits in those permits. It is these limits that are at issue in these actions.

B. Factual Background

[808 F.Supp.2d 875]

Plaintiffs 1 filed this case pursuant to the citizen suit provisions of the Clean Water Act 2 and the SMCRA 3. Plaintiffs seek enforcement of the effluent selenium limitations under West Virginia/National Pollution Discharge Elimination System (“WV/NPDES”) and WVSCMRA permits issued by the WVDEP to the defendant 4.

Plaintiffs assert that Defendant has unlawfully discharged selenium from its Sycamore Surface Mine complex in Fayette and Kanawha Counties, West Virginia. Compl. ¶ 11, ECF 1. This mine is subject to two Surface Mining Permits—S602089 and S304191—and to WV/NPDES Permit WV1009311. Id. WV/NPDES Permit WV1009311, which governs Defendant's discharges,5 was issued on May 16, 2005 and was set to expire on March 23, 2010. Permit, ECF 13–1 at 2. The permit, initially held by Lexington Coal Company, was transferred to Maple Coal in November 2005. Def.'s Mem. Supp. of Cross–Mot. Summ. J., ECF 63 at 5–6. The WVDEP modified the permit on April 5, 2007, in its Amended Order No. 1. Am. Order No. 1, ECF 13–4. The WVDEP's modification extended Maple Coal's compliance deadline for the final selenium effluent limitations to April 5, 2010. Id. at 2. It also required Maple Coal to commence construction of selenium treatment facilities by October 5, 2008, and to complete installation of the requisite selenium treatment facilities by April 5, 2010. Id. at 7.

On September 2, 2009, Maple Coal applied for a modification of the permit, specifically seeking an additional extension of the selenium final effluent limitations. Prior to applying for the modification and even subsequent to its application, Maple Coal had tried several different methods of selenium treatment, as required under Amended Order No. 1, but to no avail. Permit Modification Req. Docs., ECF 13–5 at 4–5. Accordingly, Maple Coal sought an extension until July 1, 2012. Id. at 5. At the same time Maple sought an extension of the selenium effluent limits, it also sought a renewal of its WV/NPDES permit as the current permit was set to expire on March 23, 2010. Def.'s Mem. Supp. of Mot. Dismiss, ECF 24 at 5. In order to allow additional time for the renewal process, the WVDEP administratively extended the permit on March 22, 2010. Permit Modification Req. Docs., ECF 13–5 at 1. Because the permit was administratively extended, the EPA informed the WVDEP that the permit could not be modified, as permits may only be modified during their initial term. Id. Thus, the WVDEP denied

[808 F.Supp.2d 876]

the modification request on March 25, 2010. Id. Before the effective date of the selenium effluent limits could be modified, the permit would necessarily have to complete the reissuance process—including a 30 day public comment period—which would end after the selenium effluent limitations were to go into effect on April 5, 2010. Id. If the WVDEP granted the modification request at that point, the modification would violate the anti-backsliding provisions of the CWA. Id.; 33 U.S.C. § 1342( o ).

Maple Coal appealed this decision to the Environmental Quality Board (“EQB”), which was ultimately denied. Def.'s Mem. Supp. of Mot. Dismiss, ECF 24 at 7. Maple has since filed an appeal of the EQB's ruling to the Fayette County Circuit Court (Administrative Appeal No. 11–AA–3), which is still pending. 6 Def.'s Mem. Supp. of Cross–Mot. Summ. J., ECF 63 at 8. That court has a granted a continuing stay of the selenium effluent limits, as did the Circuit Court of Kanawha County. Id. at 8–9. Both these orders were issued on the premise that otherwise “the antibacksliding provisions of the federal Clean Water Act ... may prevent [the courts] from later granting the relief requested in Maple's appeal....” Id. at 9 (quoting Mar. 1, 2011 Order by Fayette County Circuit...

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