S. Appalachian Mountain Stewards v. Red River Coal Co.
| Decision Date | 24 September 2019 |
| Docket Number | Case No. 2:17CV00028 |
| Citation | 420 F.Supp.3d 481 |
| Parties | SOUTHERN APPALACHIAN MOUNTAIN STEWARDS, et al., Plaintiffs, v. RED RIVER COAL COMPANY, INC., Defendant. |
| Court | U.S. District Court — Western District of Virginia |
Peter M. Morgan, Denver, Colorado, Evan D. Johns, Appalachian Mountain Advocates, Charlottesville, Virginia, and J. Michael Becher, Appalachian Mountain Advocates, Lewisburg, West Virginia, for Southern Appalachian Mountain Stewards, Appalachian Voices, and Sierra Club.
Brooks M. Smith and Dabney J. Carr, IV, Troutman Sanders LLP, Richmond, Virginia, for Red River Coal Company, Inc.
In this environmental case, Southern Appalachian Mountain Stewards, Appalachian Voices, and The Sierra Club (collectively, "SAMS") have sued Red River Coal Company, Inc. ("Red River") for allegedly violating the Clean Water Act ("CWA"), the Surface Mining Control and Reclamation Act ("SMCRA"), and, in the alternative, the Resource Conservation and Recovery Act ("RCRA"), by discharging pollutants without permit authority. Red River has filed a related declaratory judgment action, Case No. 2:17CV00021, seeking a declaration that it is not violating the CWA and SMCRA, but the motions at bar have been filed solely in this case.
After conducting discovery, Red River has moved for summary judgment on SAMS's claims for relief. SAMS has moved for partial summary judgment on the issue of its standing. The motions have been fully briefed and orally argued and are ripe for decision. For the reasons that follow, I will grant SAMS's Motion for Partial Summary Judgment and will grant Red River's Motion for Summary Judgment.
The relevant facts are largely uncontested. The following facts taken from the summary judgment record are either undisputed or, where disputed, are presented in the light most favorable to the nonmoving party.
Red River operates a surface coal mine in this judicial district called the North Fox Gap Surface Mine ("Mine"). The Mine discharges pollutants into the South Fork Pound River, Rat Creek, Stillhouse Branch, and other unnamed tributaries. Some of the discharges are governed by effluent limits in the Mine's combined SMCRA and National Pollution Discharge Elimination System ("NPDES") permit. The discharges include substances that contribute to total dissolved solids ("TDS") and conductivity. Virginia has classified the South Fork of the Pound River as biologically impaired due to its high level of TDS.
The area in which the Mine is located was mined extensively before SMCRA was enacted. That historic surface mining polluted the South Fork Pound River watershed by exposing toxic overburden material, which weathered and leached, causing acidic surface runoff and seepage. Discharges from pre-SMCRA underground mining have also polluted the watershed.
The federal Environmental Protection Agency ("EPA") delegated to Virginia's Department of Mines, Minerals, and Energy's Division of Mined Land Reclamation ("DMLR") the authority to issue NPDES permits under the CWA. DMLR also has the authority to issue SMCRA permits. In 1992, DMLR issued combined CWA and SMCRA permit numbered 1101401/0081401 ("Permit") for the Mine to conduct coal surface mining operations and to discharge pollutants under the CWA. The coal mining operation included remining of previously mined areas. The Permit requires Red River to reclaim the mining area according to current standards. DMLR encourages remining because it is a way to reclaim land that was mined before SMCRA's enactment that would not otherwise be reclaimed, aiding restoration of water quality.
A hollow or valley fill is made up of excess spoil or overburden material removed during mining. The fill is simply a place to put the excess material. Generally, channels are created to route water around the fill. Any water that gets into the fill drains into an underdrain at the bottom of the fill, which is designed to convey water (both percolating groundwater and water running through the fill). Discharges from nearby underground mines, also known as deep mines, may also flow into an underdrain. If there is a sedimentation pond in place, the water from the channels around the fill and the water collected in the underdrain are both conveyed into the sedimentation pond before being discharged into a water body. If there is no sedimentation pond, the water from the channels and the water from the underdrain may discharge directly into a body of water such as a creek or stream.
Red River deposited mine spoil into eight hollow fills, each of which has an underdrain. Until June 2014, Fill 1 and Underdrain 1 discharged into Pond 1 and through Outfall 001 into a tributary of the South Fork Pound River. Fill 2 and Underdrain 2, as well as Fill 3 and Underdrain 3, discharged into Pond 2 and through Outfall 002 into a different tributary of the South Fork Pound River. Fill 4 and Underdrain 4, as well as Fill 5 and Underdrain 5, discharged into Pond 5 and through Outfall 003 into another tributary of the South Fork Pound River. Fill 6 and Underdrain 6 discharged into Pond 9 and through Outfall 006 into a tributary of Rat Creek, which flows into the South Fork Pound River downstream from the other discharges.
On April 29, 2014, DMLR authorized Red River to remove Ponds 3 and 4. On June 11, 2014, DMLR authorized Red River to remove Ponds 1, 2, 5, 6, and 9. Underdrains 1, 2, 3, 4, 5, and 6 now all discharge directly into tributaries or streams without passing through any sedimentation pond or other treatment system.
On February 26, 2015, in a document titled Monitoring Point Detail Supplement, DMLR authorized the deletion of Outfall 003 from Red River's NPDES permit. In the same document, DMLR authorized the relocation of NPDES monitoring locations for Outfalls 001, 002, and 006. The monitoring points were previously below the fills but were moved to new locations up slope of the fills at mine bench Ponds 1B, 3B, and 7B. Red River has not reported any discharges from these mine bench ponds.
Underdrains 1, 2, 3, 4, 5, and 6 continue to produce discharges high in TDS and with high conductivity, contributing to elevated levels in the streams into which the underdrains discharge. These elevated levels have harmed aquatic life in the streams, which the Virginia Department of Environmental Quality has designated as impaired based on macroinvertebrate bioassessments.
For purposes of its motion, Red River concedes that the underdrains are point sources under the CWA.1 At this time, the underdrains are not listed as outfalls or point sources in the Permit. The Permit continues to require underdrain monitoring. The underdrains are discharging calcium
, magnesium, sulfate, and bicarbonate.
The Permit states that Red River "is hereby authorized to conduct coal surface mining and reclamation operations in Virginia and to discharge from a facility into receiving waters, aforementioned, in accordance with the requirements, conditions and limitations set forth in this permit, and all plans approved for this permit." Mem. Supp. Mot. Summ. J. Ex. 3 at 2, ECF No. 43-3. The Permit then goes on to list specific monitoring points and effluent limitations, along with requirements for sampling. The Permit does not expressly incorporate Virginia water quality standards or include a condition requiring compliance with state regulations.
Id. Ex. 7 at 2, ECF No. 43-7. The "facility listed below" is "North Fox Gap Surface Mine." Id. The "receiving waters" listed are "Rat Creek and South Fork Pound River." Id. Ex. 3 at 2, ECF No. 43-3.2
Id. Ex. 7 at 3, ECF No. 43-7. The Permit then goes on to list specific effluent limitations at delineated outfalls. The Permit requires monitoring of TDS, but sets no numeric TDS limit, and Virginia has not adopted a numeric water quality standard for TDS.
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S. Appalachian Mountain Stewards v. Red River Coal Co.
...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......
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Stewards v. Red River Coal Co.
...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......