Ohio Valley Envtl. Coal. Inc. v. Coal–mac Inc., Civil Action Nos. 3:10–0833

• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Writing for the Court: MEMORANDUM OPINION AND ORDER
• Citation: 775 F.Supp.2d 900
• Parties: OHIO VALLEY ENVIRONMENTAL COALITION, INC., et al., Plaintiffs,v.COAL–MAC, INC., and Mingo Logan Coal Company, Defendants.Ohio Valley Environmental Coalition, Inc., et al., Plaintiffs,v.Independence Coal Company, Inc., et al., Defendants.
• Decision Date: 31 March 2011
• Docket Number: Civil Action Nos. 3:10–0833,3:10–0836.

775 F.Supp.2d 900

OHIO VALLEY ENVIRONMENTAL COALITION, INC., et al., Plaintiffs,
v.
COAL–MAC, INC., and Mingo Logan Coal Company, Defendants.Ohio Valley Environmental Coalition, Inc., et al., Plaintiffs,
v.
Independence Coal Company, Inc., et al., Defendants.

Civil Action Nos. 3:10–0833

3:10–0836.

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

March 31, 2011.

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Derek O. Teaney, Joseph Mark Lovett, Lewisburg, WV, for Plaintiffs.Christopher M. Hunter, Robert G. McLusky, Matthew Scott Tyree, Jackson Kelly, Charleston, WV, John C. Martin, Susan M. Mathiascheck, Crowell & Moring, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER ROBERT C. CHAMBERS, District Judge.

Pending before the Court are multiple motions and cross-motions for summary judgment in OVEC v. Coal–Mac, 3:10–0833, and OVEC v. Independence, 3:10–836. In Coal–Mac, pending are Plaintiffs' Motion for Partial Summary Judgment, for Declaratory and Injunctive Relief, and to Schedule a Hearing on the Scope of Injunctive Relief (Doc. 5); Defendants' Motion for Stay of Proceedings Pending Resolution of Negotiations Between Arch Coal, Inc. and the United States Environmental Protection Agency (Doc. 13); Coal–Mac's Cross–Motion for Partial Summary Judgment (Doc. 18); Plaintiffs' Second Motion for Partial Summary Judgment and for Declaratory and Injunctive Relief and Civil Penalties (Doc. 26); and Coal–Mac, Inc. and Mingo Logan Coal Company's Cross–Motion for Partial Summary Judgment (Doc. 37). In Independence, pending are Plaintiffs' Motion for Partial Summary Judgment and for Declaratory and Injunctive Relief and Civil Penalties (Doc. 14) and Defendants' Cross–Motion for Partial Summary Judgment (Doc. 24). Also pending are Plaintiffs' Motions to File Surreply to Defendants' Supplemental Authority in Support of Defendants' Cross Motions for Summary Judgment in Coal–Mac (Doc. 76) and Independence (Doc. 57). Both these latter motions are GRANTED, and Plaintiffs' memorandums were considered in the disposition of these motions.

For the following reasons, Plaintiffs' motions for partial summary judgment in

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both actions are GRANTED and Defendants' cross-motions for partial summary judgment in both actions are DENIED. Defendants' motion to stay in OVEC v. Coal–Mac is also GRANTED.

I. BACKGROUND

Plaintiffs ¹ filed these cases pursuant to the citizen suit provisions of the Federal Water Pollution Control Act (“CWA” or the “Clean Water Act”) ² and the Surface Mining Control and Reclamation Act (“SMCRA”) ³. In each case, Plaintiffs seek enforcement of the selenium effluent limitations under West Virginia/National Pollution Discharge Elimination System (“WV/NPDES”) and West Virginia Surface Coal Mining and Reclamation Act (“WVSCMRA”) permits issued by the West Virginia Department of Environmental Protection (“WVDEP”) to the defendants ⁴. These are not, however, straightforward enforcement cases under the citizen suit provisions—the WV/NPDES permits at issue are also subject to ongoing state proceedings in front of the Environmental Quality Board (“EQB”).

Defendants in each case had sought permit modifications from the WVDEP. Each modification request proposed an extension of previously established compliance schedules governing the selenium effluent limitations. Under the existing compliance schedules, the selenium effluent limitations were set to go into effect on April 5, 2010 for the majority of the permits. The WVDEP, for differing reasons for each permit, denied the requests. Each defendant appealed the WVDEP decisions to the EQB. In addition to the formal appeals, Defendants also requested stays of the orders appealed from—the denials of the modification requests—and of the effective dates of the selenium effluent limitations from the EQB contained in the underlying permits. Defendants sought the latter relief as the limits were set to go into effect close to the time of the appeals.⁵ EQB granted the requests, staying the effect of the WVDEP orders

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and the effective date of the selenium effluent limitations contained in the permits.

The fundamental issue this Court must decide in ruling on the pending motions and cross-motions for partial summary judgment is whether the EQB stays do, in fact, stay the effective date of the selenium limits. If they do, Plaintiffs' actions are premature as Defendants are not yet in violation of their permits. In addition, the ongoing state administrative proceedings could remove this Court's jurisdiction or establish grounds for the Court to abstain from exercising its jurisdiction. If the stays do not affect the selenium limits, then these suits are citizen enforcement actions over which this Court has jurisdiction. In order to better understand these jurisdictional and abstention concerns, it is helpful to first review the regulatory framework that governs these actions and the factual background of the permits that are the subjects of these motions.

A. 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 a 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 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.” 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; see also 1982 Mem. of Agreement § II–I, May 25, 1982, Coal–Mac, Doc. 74–1 (hereinafter “ MOA ”). 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); MOA § II–E–6. 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 “reaffirm the original objection, modify the terms of the objection, or withdraw the objection....” MOA § II–E–12; see also Am. Paper Inst., 890 F.2d at 871 (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. MOA § II–E–13 & –14. 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); MOA § II–E–13 & –14; W. Va.Code R. § 47–10–3.6.b.

Coal mines are also subject to regulation under the SMCRA and the 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

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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, is a condition that mining 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, is a prohibition that mining discharges “shall not violate effluent limitations or cause a violation of applicable water quality standards.” Id. at § 38–2–14.5b. Finally, is a provision which incorporates applicable performance standards 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 and Procedural Background of the WV/NPDES Permits1. OVEC v. Coal–Mac

At issue in this case are five WV/NPDES permits issued to the...