Ohio Valley Envtl. Coal., Inc. v. McCarthy
| Decision Date | 14 December 2015 |
| Docket Number | CIVIL ACTION NO. 3:15-0271 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | OHIO VALLEY ENVIRONMENTAL COALITION, INC., SIERRA CLUB, WEST VIRGINIA HIGHLANDS CONSERVANCY, INC. and VIRGINIA RIVERS COALITION, Plaintiffs, v. GINA MCCARTHY, Administrator, United States Environmental Protection Agency and SHAWN M. GARVIN, Regional Administrator, United States Environmental Protection Agency, Region III, Defendants. |
Pending is a Motion by West Virginia Coal Association ("WVCA") to intervene as a defendant in this administrative review action. ECF No. 20. In this case, the Ohio Valley Environmental Coalition ("OVEC") and others (collectively "Plaintiffs") have challenged an action of the United States Environmental Protection Agency ("EPA"). Specifically, Plaintiffs challenge EPA's approval of the West Virginia Department of Environmental Protection's ("WVDEP") decision to not develop Total Maximum Daily Loads ("TMDLs") for certain West Virginia streams previously identified as "biologically impaired" due to "ionic stress." Plaintiffs seek an order that declares EPA's approval in violation of law, and which requires EPA to develop TMDLs for ionic toxicity for the identified streams. WVCA claims that its intervention in this case is warranted as a matter of right under Federal Rule of Civil Procedure 24(a)(2), and alternatively, permissibly under Rule 24(b). Plaintiffs oppose WVCA's intervention in this case, and EPA takes no position on intervention. For the reasons offered below, the Court DENIES WVCA's Motion to Intervene but GRANTS WVCA amicus curiae status in this action.
For the sake of deciding this motion, some background on the Clean Water Act ("CWA") is in order. The CWA is intended "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" and to attain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife." 33 U.S.C. § 1251(a). The CWA prohibits anyone from discharging pollutants from "point sources" into bodies of water unless the discharging entity does so in compliance with a National Pollution Discharge Elimination System ("NPDES") permit. 33 U.S.C. § 1311(a); 1342(a); 1362(12), (14). An NPDES permit grants the holder a right to discharge pollutants in amounts below thresholds set in the permit. 33 U.S.C. § 1311(b), 1342(a); 40 C.F.R. § 122.1 et seq. The State of West Virginia, through the WVDEP, administers NPDES permits for point sources within its jurisdiction. W. Va. Code § 22-11-4.
The CWA also requires each state to establish water quality standards consistent with the CWA's requirements for bodies of water within the state's boundaries. 33 U.S.C. § 1313(a)(3)(A), (b), (c). These standards include water quality criteria, in narrative form, numeric, or both, which define the amounts of pollutants that may be discharged into specific water bodies. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.10-12. The water quality criteria are set so that specified water bodies may maintain their designated beneficial uses. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 130.2(d), 131.10-12. When existing pollution controls in a water body are not stringent enough tomeet applicable water quality standards, that water body must be classified by the state as "impaired." 33 U.S.C § 1313(d)(1); 40 C.F.R. § 130.7.
In Section 303(d), the CWA requires that states establish a list of impaired water bodies within their boundaries. 33 U.S.C § 1313(d)(1); 40 C.F.R. § 130.7. States must submit this "303(d) list" to EPA every two years for approval, and within 30 days of the submission, EPA must approve, disapprove, or partially disapprove the state's 303(d) list. 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.7(d)(2). If EPA disapproves a state's 303(d) list, EPA must establish a list of waters that should have been included in the state's list, and it must populate this corrected list within 30 days of the date of disapproval. 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.7(d)(2). In populating its list, EPA must solicit and consider public comment on what waters should have been labeled impaired. 40 C.F.R. § 130.7(d)(2).
For water bodies classified impaired in a state's 303(d) list, the state must establish a total maximum daily load ("TMDL") for any pollutant "preventing or expected to prevent attainment of water quality standards." 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.7(c)(1)(ii). A TMDL sets the maximum amount of a pollutant that may be discharged into an impaired water body from all point sources combined without exceeding water quality standards. See 40 C.F.R. § 130.2(i) (); see also Ctr. For Biological Diversity v. EPA, No. 13-1866, 2014 WL 636829, at *2 (W.D. Wash. Feb. 18, 2014) (citing Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1520 (9th Cir. 1995)). TMDLs themselves do not regulate specific sources of pollutants, as in how much of a pollutant an individual may discharge into a water body; but instead, TMDLs are used by states in designing and implementing other pollution control measures, such as water quality management plans andthe entire framework for granting or denying NPDES permits. See 33 U.S.C. § 1313(e) (); 40 C.F.R. § 130.6 (), 130.7 ( process for "incorporating the approved [TMDLs] into the State's water quality management plans and NPDES permits"); see also Ctr. For Biological Diversity, 2014 WL 636829, at *2 (citing Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir. 2002).
After being calculated, the state's TMDLs must be subject to public review. 40 C.F.R. § 130.7(c)(1)(ii). Following public review, the state must submit its TMDLs to EPA for review, and EPA must either approve or disapprove the submission. 33 U.S.C. § 1313(d)(2). If the state fails to establish a TMDL deemed necessary by EPA, EPA must calculate that TMDL, seek public comment on EPA's proposed TMDL, consider the comments received, and submit EPA's final TMDL to the state for incorporation into the state's water quality management plan. 40 C.F.R. § 130.7(d)(2).
Based on the TMDL for a given water body, the state determines WLAs for that water body, which establishes the maximum amount of a designated pollutant that a specific entity may discharge through a point source into that water body. 40 C.F.R. § 130.2(h) ). Thus, a WLA is a type of effluent limitation placed on specific discharging entities, and it is imposed by the WVDEP through the NPDES permit. W. Va. Code § 22-11-4(a)(1); W. Va. Code R. § 47-10-3.1, 3.4.
WVCA is a trade association that represents coal producers and ancillary businesses. Memo. of Law in Supp. of Mot. to Intervene 2, ECF No. 21 [Hereinafter WVCA's Memo. in Supp.]. WVCA represents West Virginia's coal industry, as well as the thousands of individuals who mine and depend on coal in West Virginia, the nation's second largest coal producing state. Id. A number of WVCA members conduct mining operations in West Virginia and hold NPDES permits for water discharges from those operations. Id. The NPDES permits allow WVCA permit holders to discharge pollutants from point sources into specific West Virginia water bodies. Id
In the years 2009, 2012, and 2014, WVDEP submitted for EPA's approval TMDLs set for streams in certain regions of West Virginia. See Compl. ¶¶ 2, 64, 65. WVDEP's submissions for those years did not include any TMDL for water bodies that, according to Plaintiffs, are impaired by "ionic stress." Compl. ¶ 3. This omission was due to the fact that WVDEP has never before instituted a TMDL for ionic stress, and EPA has never required WVDEP to do so. Compl. ¶ 5; WVCA's Memo. in Supp. 2. WVDEP has refused to develop TMDLs for ionic stress on the ground that "[t]here is insufficient information available regarding the causative pollutants and their associated impairment thresholds for biological TMDL development for ionic toxicity at this time." Compl. ¶ 28.
According to Plaintiffs, ionic stress occurs when certain pollutants are discharged into water bodies. WVDEP determined that "ionic toxicity is a significant stressor," and "a strong presence of sulfates and other dissolved solids exists in those waters where ionic toxicity has been determined to be a significant biological stressor." Compl. ¶ 30. Plaintiffs allege that water bodiesin West Virginia's submission to EPA have been identified by WVDEP as biologically impaired due to ionic stress. Compl. ¶ 27, 35; see also ¶¶ 41, 45, 57. But the information about ionic stress's causative pollutants is limited, and thus, according to WVDEP, appropriate thresholds related to ionic stress are also undefined at this time. Compl. ¶ 30. Regardless of this limited information, Plaintiffs assert the CWA requires that WVDEP develop TMDLs even in the face of a "lack of knowledge." Compl. ¶ 20, 85, 89, 93, 97, 101, 106.
In bringing this action, Plaintiffs seek an order that (1) declares EPA's approval of WVDEP's decision to not establish ionic stress TMDLs in violation of a nondiscretionary duty that EPA has, specifically a duty to establish TMDLs for ionic stress in light of WVDEP's failure to do so, and (2) requires EPA to develop TMDLs for ionic stress for the identified streams.
WVCA claims the imposition of TMDLs sought in this action will necessarily result in effluent limits being placed on WVCA members NPDES permits, and these effluent limits would necessarily...
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