Ohio Valley Envtl. Coal., Inc. v. U.S. Army Corps of Eng'rs, Civil Action No. 2:12-6689

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtJohn T. Copenhaver, Jr. United States District Judge
PartiesOHIO VALLEY ENVIRONMENTAL COALITION, INC. and WEST VIRGINIA HIGHLANDS CONSERVANCY, INC. and SIERRA CLUB and COAL RIVER MOUNTAIN WATCH, INC., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS and THOMAS P. BOSTICK, Commander and Chief of Engineers, U. S. Army Corps of Engineers, and STEVEN MCGUGAN, Colonel, District Engineer, U. S. Army Corps of Engineers, Huntington District, Defendants and RAVEN CREST CONTRACTING, LLC, Intervenor Defendant.
Docket NumberCivil Action No. 2:12-6689
Decision Date18 August 2014

OHIO VALLEY ENVIRONMENTAL COALITION, INC. and WEST VIRGINIA HIGHLANDS CONSERVANCY,
INC. and SIERRA CLUB and COAL RIVER MOUNTAIN WATCH, INC., Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS and THOMAS P. BOSTICK, Commander and Chief of
Engineers, U. S. Army Corps of Engineers, and STEVEN MCGUGAN, Colonel, District
Engineer, U. S. Army Corps of Engineers, Huntington District, Defendants
and RAVEN CREST CONTRACTING, LLC, Intervenor Defendant.

Civil Action No. 2:12-6689

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON

August 18, 2014


MEMORANDUM OPINION AND ORDER

Pending is a motion for partial summary judgment filed on April 8, 2013, by plaintiffs Ohio Valley Environmental Coalition, Inc., West Virginia Highlands Conservancy, Inc., Sierra Club, and Coal River Mountain Watch, Inc. ("the plaintiffs"). Also pending are a motion for partial summary judgment filed on May 10, 2013, by defendants United States Army Corps of Engineers, Lieutenant General Thomas P. Bostick, and

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Colonel Steven McGugan (collectively, "the Corps" or "the defendants"), and a motion for partial summary judgment filed on the same day by intervenor defendant Raven Crest Contracting, LLC ("Intervenor" or "Raven Crest").

The issues presented in this case relate to a permit issued on August 10, 2012 by the Corps pursuant to the Clean Water Act ("CWA") § 404, codified at 33 U.S.C. § 1344 (2006), for Raven Crest to conduct surface coal mining activities at the proposed Boone North No. 5 Surface Mine, a 725-acre site in Boone County, West Virginia, near the communities of Peytona and Racine. In short, the plaintiffs allege that the Corps, when issuing the § 404(b)(1) permit that allows Raven Crest to mine-through streams and to place fill material in streams, was required to, but did not, properly consider detrimental human health effects associated with surface coal mining. See Compl. ¶ 1.

The plaintiffs are nonprofit organizations that espouse preservation of the environment and the responsible use of natural resources. Plaintiff Ohio Valley Environmental Coalition is a nonprofit organization incorporated in Ohio, with a principal place of business in Huntington, West Virginia, and it has roughly 1,000 members that reside in various states, including some in West Virginia. "Its mission is to organize

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and maintain a diverse membership dedicated to the improvement and preservation of the environment through education, grassroots organizing and coalition building, leadership development and media outreach." Compl. ¶ 9. West Virginia Highlands Conservancy is a nonprofit organization incorporated in West Virginia, with roughly 1,600 members who "work for the conservation and wise management of West Virginia's natural resources." It utilizes "citizen efforts to protect West Virginia's people, land, and water resources from the harmful effects of coal mining." Compl. ¶ 10. Sierra Club is a nonprofit California corporation, with about 2,000 members residing in West Virginia. Sierra Club advocates for the responsible use of natural resources and for environmental conservation. Compl. ¶ 11. Plaintiff Coal River Mountain Watch is an organization begun in West Virginia with a mission to "stop the destruction of West Virginia's communities and environment by mountaintop removal mining, to improve the quality of life in West Virginia and to help rebuild sustainable communities." Compl. ¶ 12.

Under the Clean Water Act, the Army Corps of Engineers, acting on behalf of the Secretary of the Army and through the Chief of Engineers, "may issue permits, after notice and opportunity for public hearings for the discharge of dredged

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or fill material into the [waters of the United States] [1] at specified disposal sites." 33 U.S.C. § 1344(a). Raven Crest has intervened as a defendant in this action, as it is the company that applied for and received the permit from the Corps to conduct discharge activities on the site.

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I. Background

A. Regulatory Law

The permitting process for surface coal mining involves navigating an interlocking web of statutes, agencies, and regulations at both the federal and state level, so a brief overview of the relevant law is in order.

1. The SMCRA

The Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. §§ 1202-1328, directs regulation of surface mining activities through a system of "cooperative federalism," with responsibility shared between state governments and the Secretary of the Interior. Bragg v. West Virginia Coal Ass'n, 248 F.3d 275, 288 (4th Cir. 2001). Under the law, states may implement and enforce their own surface mining regulatory programs with "exclusive jurisdiction", provided that the Secretary of the Interior first approves the program. See 30 U.S.C. § 1253 (2006); Bragg, 248 F.3d at 288. If a state has not set up its own program, the Department of the Interior will regulate surface mining operations within that state. 30 U.S.C. §§ 1252(e), 1254 (2006). Either the state or the federal government may regulate mining activities, but not both; these alternatives are mutually exclusive. Bragg, 248 F.3d at 289. To obtain approval, the state program must require compliance at

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or above federal minimum standards, provide for adequate enforcement mechanisms through state law, and maintain a sufficiently competent and adequately funded state regulatory body. 30 U.S.C. § 1253(a-b); Bragg, 248 F.3d at 288-89; 30 C.F.R. §§ 731.12-731.14, 732.15 (2013). The minimum standards contemplate, among other things, the protection of the health and safety of workers and the public, appropriate reclamation of mined lands after mining concludes, efficient mining of resources, protection of flora and fauna, maintaining hydrologic balance,2 and protection of important cultural and historic sites. 30 C.F.R. § 810.2 (2013). West Virginia has an approved SMCRA program that is administered by the West Virginia Department of Environmental Protection ("WVDEP"). 30 C.F.R. §§ 948.1-948.30 (2013). The mine at issue in this case was issued a SMCRA permit by WVDEP on September 9, 2009; that permit's validity is not disputed.3

2. The CWA

Against this backdrop lies the Clean Water Act

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("CWA"). The law requires entities to obtain a permit from a federal agency for certain discharges of materials into the waters of the United States. The particular permit at issue in this case is a CWA § 404(b)(1) permit, codified at 33 U.S.C. § 1344(b)(1). As noted, such permits are granted by the Corps, acting on behalf of the Secretary of the Army and through the Chief of Engineers, for "the discharge of dredged or fill material" into U.S. waters, after giving notice and opportunity for a public hearing. 33 U.S.C. § 1344(a). The Corps issued such a permit for the mine in this case on August 10, 2012.

As required by 33 U.S.C. § 1344(b), the Environmental Protection Agency (the "EPA"), in conjunction with the Corps, has promulgated guidelines for the Corps to follow in issuing CWA § 404(b)(1) permits. See 40 C.F.R. §§ 230.1-230.98 (2013). Among the factors the Corps must consider is whether the discharge "will cause or contribute to significant degradation of the waters of the United States." 40 C.F.R. § 230.10(c) (2013). Under the regulations, effects on (1) "human health or welfare"; (2) "aquatic life and other wildlife dependent on aquatic ecosystems"; (3) "aquatic ecosystem diversity, productivity, and stability"; or (4) "recreational, aesthetic and economic values" may contribute to significant degradation. Id. The Corps must make a written determination of the effects

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of discharge "on the physical, chemical, and biological components of the aquatic environment." 40 C.F.R. § 230.11.

The CWA also mandates, under CWA § 402, codified at 33 U.S.C. § 1342 (2006 & Supp. II 2008), a separate system of cooperative federalism with regard to pollution arising from wastewater, namely, the National Pollution Discharge Elimination System ("NPDES"). NPDES allows for states with federally approved programs to issue permits for the discharge of pollutants into the waters of the United States. Id. § 1342(b). WVDEP issued an NPDES permit on May 27, 2009, and the proper issuance of an NPDES permit is not at issue in this case.

The CWA provides for yet another state-issued certification under CWA § 401(a)(1), codified at 33 U.S.C. § 1341(a)(1). A state agency may certify any project requiring a federal permit that "may result in any discharge" into waters of the United States where the discharge originates within that state's jurisdiction. 33 U.S.C. § 1341(a)(1) (2006). The state agency decides whether a number of standards are met under the CWA, among them are effluent limitations, water quality standards and toxic pollutant standards. See id.; 33 U.S.C. §§ 1311-1313, 1316-1317. The federal permitting process may not go forward until the state grants § 401 certification or waives such approval. § 1341(a)(1). Certification under CWA § 401 was

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granted by the WVDEP for the mine in this case on May 13, 2011; its issuance is not contested here.

3. NEPA

The National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370h, requires federal agencies to take a "hard look" at the environmental consequences of agency action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 35051 (1989). NEPA...

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