Ohio Valley Envtl. Coal., Inc. v. Marfork Coal Co., Civil Action No. 5:12–1464.

• Decision Date: 22 August 2013
• Docket Number: Civil Action No. 5:12–1464.
• Citation: 966 F.Supp.2d 667
• Parties: OHIO VALLEY ENVIRONMENTAL COALITION, INC., West Virginia Highlands Conservancy, Inc., Coal River Mountain Watch, and Sierra Club, Plaintiffs, v. MARFORK COAL COMPANY, INC., and Independence Coal Company, Inc., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

966 F.Supp.2d 667

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

v.MARFORK COAL COMPANY, INC., and Independence Coal Company, Inc., Defendants.

Civil Action No. 5:12–1464.

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

Aug. 22, 2013.

Derek O. Teaney, Joseph Mark Lovett, J. Michael Becher, Lewisburg, WV, for Plaintiffs.

Christopher M. Hunter, L. Jill McIntyre, M. Shane Harvey, Robert G. McLusky, Matthew Scott Tyree, Jackson Kelly, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, Chief Judge.

Pending are cross-motions for partial summary judgment filed by Plaintiffs Ohio Valley Environmental Coalition, Inc., West Virginia Highlands Conservancy, Inc., Coal River Mountain Watch, and Sierra Club (“Plaintiffs”), ECF No. 55, and Defendant Marfork Coal Co., Inc. (“Marfork”), ECF No. 50. For the reasons stated below, the Court GRANTS in part Marfork's motion as to the lack of standing of three of the plaintiffs, but otherwise DENIES the parties' motions.

I. BACKGROUND

Plaintiffs filed this case 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 Marfork violated these statutes by discharging excessive amounts of selenium into the waters of West Virginia. Before proceeding to the parties' arguments, the Court will first discuss the relevant regulatory framework and then the factual background of this case.

A. Regulatory Framework

The primary goal of 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 Pollutant 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”).

Coal mines are also subject to regulation under the Surface Mining Control and Reclamation Act and the West Virginia Surface Coal Mining and Reclamation Act (“WVSCMRA”). These statutes prohibit any person from engaging in or carrying out surface coal mining operations without first obtaining a permit. 30 U.S.C. § 1256. Regulations passed pursuant to WVSCMRA require permittees to comply with the terms and conditions of a permit 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. § 38–2–14.5b. These limitations are guided by the NPDES permit. Water quality standards establish conditions which must be maintained to preserve designated uses of the state's waters; such uses include public health and the protection of animal, aquatic, and plant life. 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.

B. Factual Background

Marfork owns and operates the Brushy Fork Slurry Impoundment and the adjacent Beetree Surface Mine in Raleigh County, West Virginia. The impoundment is subject to WV/NPDES Permit Number WV1015044 ¹ (“Impoundment Permit”) and to Surface Mining Permit Number O301095. Marfork obtained a separate WV/NPDES permit, number WV1021788, to operate the Beetree Surface Mine (“Beetree Permit”). The Impoundment Permit regulates the discharges from the impoundment, which has only one outlet, Outfall 001. See Permit WV1015044, ECF No. 55–1. The outfall discharges directly into the stream known as Brushy Fork.² From the discharge point, Brushy Fork flows approximately 29 feet before it flows into Little Marsh Fork, which in turn flows into Marsh Fork. See Williams Aff. ¶ 3, ECF No. 50–1.

Both the Impoundment Permit and the Beetree Permit require Marfork to limit and monitor the contents and characteristics of its discharges. The Impoundment Permit sets effluent discharge limitations for specific pollutants: iron, manganese, and aluminum. Permit WV1015044 at 2, ECF No. 55–1. The Impoundment Permit does not identify selenium as one of the discharge constituents to be specifically limited and monitored. Id. The Beetree Permit, which allows Marfork to discharge treated water and runoff into Brushy Fork and other streams, does require Marfork to measure and report the concentration of selenium in its discharge. Permit WV1021788 at 2–17, ECF No. 55–2. While the Beetree Permit lists selenium among the specific effluents in the permit, it does not set a specific discharge limitation; only monitoring and reporting is required.

Both permits incorporate the following provision:

The discharge or 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 47 C.S.R. 2.

W. Va.Code R. § 47–30–5.1.f. West Virginia's WV/NPDES rules for coal mining facilities require this provision to be “incorporated into the WV/NPDES permits either expressly or by reference.” Id. § 47–30–5. West Virginia's water quality standards promulgated for the protection of aquatic life impose limitations on selenium: an acute limitation of 20 parts per billion (“ppb”) and a chronic limitation of 5 ppb. Id. § 47–2, App'x E, tbl. 1. The acute limitation is defined as a “one-hour average concentration not to be exceeded more than once every three years on the average.” Id. The chronic limitation is a “four-day average concentration not to be exceeded more than once every three years on the average.” Id. n. 2.

Plaintiffs assert three claims against Marfork, all based upon its alleged discharge of selenium into Brushy Fork. First, Plaintiffs allege that Marfork is in violation of the CWA and the Impoundment Permit because its discharges from Outfall 001 caused violations of the chronic and acute water quality standards for selenium in Brushy Fork. Second, Plaintiffs allege that Marfork is in violation of the SMCRA and its WV/SCMRA permit for the same reason. Third, Plaintiffs claim that Marfork is in violation of the SMCRA and its WV/SCMRA permit by failing to install, operate, and maintain adequate treatment facilities as necessary to prevent discharges that violate state or federal law.

II. ANALYSIS

The parties dispute three primary issues, which the Court will address in turn after setting forth the standard for summary judgment. First, the Court will determine whether Plaintiffs have constitutional standing to sue. Second, the Court will discuss the statutory CWA “permit shields.” Third, the Court will identify the terms and conditions of Marfork's permit and will determine whether Plaintiffs have satisfied their burden of proof of CWA and SMCRA violations.

A. Legal Standard

To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

B. Constitutional Standing

In order to bring any action in federal court, a plaintiff must have standing—that is, a plaintiff must have a sufficient personal stake in the outcome of the matter being litigated to make it justiciable under Article III of the Constitution. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. (“ Gaston Copper I ”), 204 F.3d 149, 153 (4th Cir.2000) (citation omitted); see also U.S. Const. art. III (restricting federal courts to adjudicating “cases” and “controversies”). In order to satisfy the minimum constitutional requirements for standing, a plaintiff must demonstrate:

(1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will...