Ohio Valley Envtl. Coal., Inc. v. Fola Coal Co.

• Decision Date: 27 January 2015
• Docket Number: Civil Action No. 2:13–5006.
• Citation: 82 F.Supp.3d 673
• Court: U.S. District Court — Southern District of West Virginia
• Parties: OHIO VALLEY ENVIRONMENTAL COALITION, INC., West Virginia Highlands Conservancy, Inc., and Sierra Club, Plaintiffs, v. FOLA COAL COMPANY, LLC, Defendant.

82 F.Supp.3d 673

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

v.FOLA COAL COMPANY, LLC, Defendant.

Civil Action No. 2:13–5006.

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

Signed Jan. 27, 2015.

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

Jennifer L. Hughes, M. Shane Harvey, Matthew Scott Tyree, Robert G. McLusky, Jackson Kelly, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, Chief Judge.

On August 19–22, 2014, the Court held a trial in this case on liability issues,¹ and the parties timely conducted post-trial briefing. As explained below, the Court FINDS that Plaintiffs have established, by a preponderance of the evidence, that Defendant has committed at least one violation of its permits by discharging high levels of ionic pollution, as measured by conductivity, into Stillhouse Branch, which have caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable stream's aquatic ecosystem, in violation of the narrative water quality standards that are incorporated into those permits.

I. BACKGROUND

Plaintiffs bring this action pursuant to the citizen suit provisions of the Federal Water Pollution Control Act (“Clean Water Act” or “CWA”) and the Surface Mining Control and Reclamation Act (“SMCRA”). Plaintiffs allege that Defendant Fola Coal Company, LLC (“Fola”) violated these statutes by discharging excessive amounts of ionic pollution, measured as conductivity and sulfates, into the waters of West Virginia in violation of their National Pollutant Discharge Elimination System (“NPDES”) permits and their West Virginia Surface Mining Permits. Before proceeding to the parties' arguments, the Court will first discuss the relevant regulatory framework.

The primary goal of the CWA 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 an NPDES permit. 33 U.S.C. §§ 1311(a), 1342. Under the NPDES, the U.S. Environmental Protection Agency (“EPA”) or an 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”). 47 Fed.Reg. 22363–01 (May 24, 1982). All West Virginia NPDES permits incorporate by reference West Virginia Code of State Rules § 47–30–5.1.f, which states that “discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by [West Virginia Code of State Rules § 47–2].” This is an enforceable permit condition. Ohio Valley Envtl. Coal. v. Elk Run Coal Co., Inc., 24 F.Supp.3d 532, 537 (S.D.W.Va.2014) (“Elk Run ”).

Coal mines are also subject to regulation under the SMCRA, which prohibits any person from engaging in or carrying out surface coal mining operations without first obtaining a permit from the Office of Surface Mining Reclamation and Enforcement (“OSMRE”) or an authorized state agency. 30 U.S.C. §§ 1211, 1256, 1257. A state may receive approval to administer a state-run surface mining permit program under the authority of 30 U.S.C. § 1253. In 1981, West Virginia received conditional approval of its state-run program, which is administered through the WVDEP pursuant to the West Virginia Surface Coal Mining and Reclamation Act (“WVSCMRA”). W. Va.Code §§ 22–3–1 to –33; 46 Fed.Reg. 5915–01 (Jan. 21, 1981). Regulations passed pursuant to the WVSCMRA require permittees to comply with the terms and conditions of their permits and all applicable performance standards. W. Va.Code R. § 38–2–3.33.c. One of these performance standards requires that mining discharges “shall not violate effluent limitations or cause a violation of applicable water quality standards.” Id. § 38–2–14.5.b. Another performance standard mandates that “[a]dequate facilities shall be installed, operated and maintained using the best technology currently available ... to treat any water discharged from the permit area so that it complies with the requirements of subdivision 14.5.b of this subsection.” Id. § 38–2–14.5.c.

West Virginia's water quality standards are violated if wastes discharged from a surface mining operation “cause ... or materially contribute to” 1) “[m]aterials in concentrations which are harmful, hazardous or toxic to man, animal or aquatic life” or 2) “[a]ny other condition ... which adversely alters the integrity of the waters of the State.” Id. § 47–2–3.2.e, –3.2.i. Additionally, “no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.” Id. § 47–2–3.2.i.

This Court has previously determined that a West Virginia Stream Condition Index (“WVSCI”) score below the EPA-approved impairment threshold of 68 indicates a violation of West Virginia's biological narrative water quality standards, as embodied in § 47–2–3.2.e and –3.2.i. Elk Run, 24 F.Supp.3d at 556. In Elk Run, Defendants argued that liability based on conductivity levels would effectively create a water qualify effluent limit, which according to a federal district court in Nat'l Mining Ass'n v. Jackson, 880 F.Supp.2d 119, 137–42 (D.D.C.2012), exceeded EPA authority. Though already recognized as inapposite to the issues presented in Elk Run —as well as the case at hand—the Court now also notes that Jackson has since been reversed. Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243 (D.C.Cir.2014) (concluding that EPA's Final Guidance amounted to a general statement of policy explaining how the agency would enforce existing rules and was not a final agency action subject to pre-enforcement judicial review).

This Court has also previously determined Plaintiffs' substantive burden in the case at hand upon Defendant's oral motion for a judgment on partial findings at the close of Plaintiff's evidence. See Memorandum Opinion and Order, ECF No. 114. After reviewing all the evidence then before the Court and legal arguments briefed by the parties, the Court denied Fola's motion, finding instead that Plaintiffs had provided some evidence that a pollutant had caused or materially contributed to biological impairment at Stillhouse Branch in violation of Fola's permits. Id. Specifically, the Court determined that Plaintiffs' burden is to show that the high conductivity measured at Stillhouse Branch is composed of some mixture of ions that is known to cause or materially contribute to impairment. Id. at 7. Upon reviewing Plaintiffs' evidence, the Court then concluded that Plaintiff had produced some evidence that high conductivity in central Appalachian waterways receiving alkaline mine drainage, e.g., Stillhouse Branch, is dominated by a unique mixture of ions and that particular variety of ionic pollution is known to cause or materially contribute to biological impairment. Id. at 21. While the Court previously reviewed the sufficiency of the evidence in terms of surviving a motion for judgment on partial findings, now the Court considers whether Plaintiffs have met their ultimate persuasive burden of showing that one or more violations occurred by a preponderance of the evidence.

II. LIABILITY

A. Legal Issues

Fola opens its post-trial briefing with a reiteration of arguments already defeated: permit shield defense and appropriateness of relying on WVSCI scores to determine violations of the narrative water quality standard. After briefly revisiting these settled questions of law, the Court will then address Fola's novel legal arguments relating to general and specific causation.

1. Permit Shield

In Defendant's 2009 application for renewal of its NPDES permit, Defendant submitted conductivity and sulfate measurements similar to the measurements relied upon in this case.² Despite reviewing these similar conductivity and sulfate levels, as articulated by Defendant, WVDEP “elected not to limit the concentration of conductivity or sulfate that Fola may discharge from any of the outlets covered by the permit, including Outlet 029.” Def.'s Post–Trial Brief at 2, ECF No. 120. On that basis, Defendant alludes to the already settled argument that it may rely on the CWA “permit shield” defense. Id. at 2–3.

In an effort to defend WVDEP's permitting approach, Defendant directs the Court's attention to a recent West Virginia Supreme Court case, Sierra Club v. Patriot Mining, Inc., No. 13–0256, 2014 WL 2404299 (May 30, 2014) (unpublished) (“Patriot ”).³ In Patriot, Patriot Mining obtained a modification to an existing NPDES permit enabling expansion of surface mining activities at New Hill West Surface Mine in Monongalia County, West Virginia. Id. at *1. The modified permit included maximum daily discharge limitations for select materials, but only reporting requirements for others, including sulfate, specific conductance, and total dissolved solids (“TDS”).Id. Upon review, the Environmental Quality Board (“EQB”) remanded the permit modification after finding that Petitioner demonstrated that levels of sulfate, conductivity, and TDS in the watershed were already “above limits known to cause harm to aquatic life, thereby violating West Virginia's narrative water quality standards.” Id. at *2. On appeal, however, both the circuit court and the West Virginia Supreme Court of Appeals reached a contrary conclusion, upholding WVDEP's permitting decision. Id. at *2–3, *6. The West Virginia Supreme...