S. Appalachian Mountain Stewards v. Red River Coal Co.
| Decision Date | 30 March 2021 |
| Docket Number | No. 19-2194,19-2194 |
| Citation | 992 F.3d 306 |
| Parties | SOUTHERN APPALACHIAN MOUNTAIN STEWARDS ; Appalachian Voices; Sierra Club, Plaintiffs - Appellants, v. RED RIVER COAL COMPANY, INCORPORATED, Defendant - Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: John Michael Becher, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Appellants. Dabney J. Carr, TROUTMAN PEPPER HAMILTON SANDERS LLP, Richmond, Virginia, for Appellee. ON BRIEF: Peter Morgan, SIERRA CLUB, Denver, Colorado, for Appellants. Brooks M. Smith, TROUTMAN SANDERS LLP, Richmond, Virginia, for Appellee.
Before GREGORY, Chief Judge, and NIEMEYER and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Richardson wrote the opinion, in which Chief Judge Gregory and Judge Niemeyer concurred.
Virginia has promulgated water-quality standards by regulation under the federal Surface Mining Control and Reclamation Act ("Surface Mining Act") that are effectively the same as the water-quality standards under the federal Clean Water Act. Under the Clean Water Act, an operator's compliance with its issued permit shields it from liability for certain violations of those standards. The Surface Mining Act does not include its own permit liability shield. This raises the question we must answer: When an operator's conduct is shielded from liability under the Clean Water Act, can the operator still be held liable under the equivalent Surface Mining Act standards?
How we answer this question depends on the Surface Mining Act's saving clause, which bars construing the Act in any way that would supersede, amend, modify, or repeal the Clean Water Act and other laws. See 30 U.S.C. § 1292(a)(3). Because here the Surface Mining Act's lack of a permit shield supersedes, amends, or modifies the Clean Water Act's permit shield, we hold that the saving clause prevents liability under the Surface Mining Act for conduct that is otherwise shielded from liability under the Clean Water Act. So we affirm the district court's grant of summary judgment for Red River Coal Company on the Surface Mining Act claim.
The Clean Water Act, the colloquial name of the amended Federal Water Pollution Control Act, regulates the issuance of pollutants from "point sources," generally defined as any "discernible, confined and discrete conveyance" such as a pipe, into United States waters. 33 U.S.C. § 1362(14) ; see also § 1251 et seq. The core of the Act prohibits "the discharge of any pollutant by any person." Piney Run Pres. Ass'n v. Cnty. Comm'rs of Carroll Cnty. , 268 F.3d 255, 265 (4th Cir. 2001) ; see § 1311(a). But compliance with a Clean Water Act permit issued under the National Pollutant Discharge Elimination System serves as an exception to this liability. § 1342(k); Piney Run , 268 F.3d at 265.1
Once granted, a permit allows its holder to discharge a limited amount of pollutants. §§ 1311(a), 1342(a), (c). Compliance with that permit "shall be deemed compliance" with the Clean Water Act's standards (namely, the effluent—wastewater—limitations, § 1311, water-quality-related effluent limitations, § 1312, national standards of performance, § 1316, toxic and pretreatment effluent standards, § 1317, and ocean discharge criteria, § 1343). § 1342(k); see also E.I. du Pont de Nemours & Co. v. Train , 430 U.S. 112, 138 n.28, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977) (such permits provide "finality").2 This liability shield not only covers discharges listed on this permit but also other discharges "adequately disclosed to the permitting authority." Piney Run , 268 F.3d at 269. Thus, an operator in compliance with its Clean Water Act permit is shielded from liability in EPA and citizen-suit enforcement actions. §§ 1319, 1365.
These permits may be issued by the EPA or the states to which the EPA has delegated its authority. § 1342(c)(1). The EPA delegated its authority to the Commonwealth of Virginia in 1975. 57 Fed. Reg. 43,734 (Sept. 22, 1992) ; see also J.A. 43 ().
Five years after passing the Clean Water Act, Congress passed the Surface Mining Act. The Surface Mining Act, among other things, "establish[es] a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." 30 U.S.C. § 1202(a) ; see also Consolidation Coal Co. v. Costle , 604 F.2d 239, 251 (4th Cir. 1979), rev'd on other grounds sub nom. E.P.A. v. Nat'l Crushed Stone Ass'n , 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980). It does so by allowing states to exclusively regulate surface coal mining operations within their borders if they satisfy certain conditions. § 1253(a). Virginia satisfied these conditions. 46 Fed. Reg. 61,088 (Dec. 15, 1981). With this regulatory authority, Virginia needed to, and did, create a permit system for surface coal mining and reclamation operations that, at a minimum, incorporated the Surface Mining Act's anti-pollution performance standards. § 1253(a)(4); see Va. Code Ann. § 45.1-242(B). Like the Clean Water Act, the Surface Mining Act requires an operator wishing to "engage in or carry out on lands within a State any surface coal mining operations" to "first obtain[ ] a permit issued by such State." § 1256(a). But, unlike a Clean Water Act permit, compliance with a Surface Mining Act permit does not itself shield its holder from liability under the Surface Mining Act.
In August 2017, Plaintiffs Southern Appalachian Mountain Stewards, Appalachian Voices, and the Sierra Club sued Red River Coal Company, Inc. They alleged that Red River had violated the Clean Water Act, the Surface Mining Act, and, in the alternative, the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (1976). Plaintiffs’ claims stemmed from alleged discharges of pollutants from point sources at Red River's now-inactive North Fox Gap Surface Mine in Virginia. Red River's activities at the mine were governed by a combined Clean Water Act and Surface Mining Act permit issued by Virginia.3
Red River moved for summary judgment on all claims. And the district court granted the motion. S. Appalachian Mountain Stewards , 420 F. Supp. 3d at 498.
The district court found the Surface Mining Act claim was barred by that Act's saving clause. S. Appalachian Mountain Stewards , 420 F. Supp. 3d at 498. That clause limits the effect of the Act: Nothing in the Surface Mining Act "shall be construed as superseding, amending, modifying, or repealing ... [the Clean Water Act and] the State laws enacted pursuant thereto." 30 U.S.C. § 1292(a)(3).4 The district court held that where a Clean Water Act permit precludes liability under the Clean Water Act for certain activities, the Surface Mining Act's saving clause bars imposing Surface Mining Act liability for the same actions. S. Appalachian Mountain Stewards , 420 F. Supp. 3d at 498 ().
Plaintiffs timely appealed only the district court's grant of summary judgment to Red River on the Surface Mining Act claim. We have jurisdiction, 28 U.S.C. § 1291, and review the grant of summary judgment de novo, Calloway v. Lokey , 948 F.3d 194, 201 (4th Cir. 2020).
Red River's combined permit requires it to comply with both the Clean Water Act's standards and the water-quality standards Virginia promulgated under the Surface Mining Act. See J.A. 27 (citing Va. Code Ann. § 45.1-242(B) and 4 Va. Admin. Code § 25-130-773.17(c) ). As they apply here, those standards appear to be effectively the same. And there is no dispute on appeal that Red River cannot be held liable for any violations of the Clean Water Act standards because of its compliance with its Clean Water Act permit. But Plaintiffs contend that Red River's activities at the mine have violated the Surface Mining Act's standards and are not covered by the Clean Water Act permit shield.
We first discuss how the Clean Water Act's permit shield interacts with the Surface Mining Act's saving clause before addressing Plaintiffs’ counterarguments.
We agree with the district court—and thus the Sixth Circuit in Sierra Club v. ICG Hazard, LLC , 781 F.3d 281, 291–92 (6th Cir. 2015) —that liability may not be imposed under the Surface Mining Act for a specific discharge when the Clean Water Act's permit shield bars liability under the Clean Water Act for that same discharge. See S. Appalachian Mountain Stewards , 420 F. Supp. 3d at 498. We conclude that although the Clean Water Act and the Surface Mining Act substantive water-quality standards are "not ... inconsistent," id. , the saving clause does more than prohibit rules or regulations that are "inconsistent" with the Clean Water Act: it prohibits those that more broadly "supersed[e], amend[ ], modify[ ], or repeal[ ]" the Clean Water Act, 30 U.S.C. § 1292(a). And even if the saving clause only prohibited inconsistencies between the two statutory regimes, in this case, there is an inconsistency. Even though the substantive standards may not be inconsistent, the scope of liability for violating those standards is.
The ordinary meaning of the terms in the saving clause makes clear that the clause does more than prevent inconsistent rules and regulations. See In re Surface Mining Regul. Litig. , 627 F.2d 1346, 1366 (D.C. Cir. 1980) (). The term "supersede" means ...
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