Sierra Club v. Powellton Coal Co., LLC, Civil Action No. 2:08-1363.

• Citation: 662 F.Supp.2d 514
• Decision Date: 18 August 2009
• Docket Number: Civil Action No. 2:08-1363.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: SIERRA CLUB and Ansted Historic Preservation Council, Inc., Plaintiffs, v. POWELLTON COAL COMPANY, LLC, Defendant.

662 F.Supp.2d 514

SIERRA CLUB and Ansted Historic Preservation Council, Inc., Plaintiffs, v. POWELLTON COAL COMPANY, LLC, Defendant.

Civil Action No. 2:08-1363.

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

August 18, 2009.

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

Allyn G. Turner, Andrew B. McCallister James S. Crockett, Jr., Spilman Thomas & Battle, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

JOHN T. COPENHAVER Jr., District Judge.

This action arises under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 through 1387, commonly referred to as the Clean Water Act ("CWA"), and the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. §§ 1201 through 1328. According to the plaintiffs, between March 1, 2006 and March 31, 2009 defendant Powellton Coal Company, LLC ("Powellton") accrued at least 6,767 violation of the CWA and SMCRA as a result of its unlawful discharges of pollutants into the waters of the United States. Pending is Powellton's partial motion to dismiss, filed on May 29, 2009. For the reasons that follow, the motion is denied.

I.

Plaintiffs' claims are brought pursuant to the provisions for "citizen suits" found in section 505(a) of the CWA, 33 U.S.C. § 1365(a), and section 520(a) of SMCRA, 30 U.S.C. § 1270(a). What follows is an overview of the statutory and regulatory regimes in place under the CWA and SMCRA.

A. Clean Water Act

The CWA was enacted "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To this end, section 301(a) makes the discharge of "pollutants"¹ from a "point source"² into the waters of the United States unlawful unless the discharger complies with certain enumerated sections of the CWA. 33 U.S.C. § 1311(a). One such enumerated section is section 402, 33 U.S.C. § 1342, which embodies the National Pollution Discharge Elimination System ("NPDES") permit program, "[t]he cornerstone of the Clean Water Act's pollution control scheme...." Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 822 F.2d 104, 108 (D.C.Cir.1987).

The issuance of a NPDES permit does not authorize the recipient to pollute at will. All NPDES permits authorizing the discharge of pollutants are conditioned upon such discharges satisfying the applicable requirements of the CWA. 33 U.S.C. § 1342(a)(1) and (b)(1). Section 301(b)(1) of the CWA requires that "every permit contain (1) effluent limitations that reflect the pollution reduction achievable by using technologically practicable controls and (2) any more stringent pollutant release limitations necessary for the waterway receiving the pollutant to meet `water quality standards.'" Piney Run Pres. Ass'n v. County Comm'rs, 268 F.3d 255, 265 (4th Cir.2001) (quoting Am. Paper Inst., Inc. v. U.S. Envt'l. Prot. Agency, 996 F.2d 346, 349 (D.C.Cir.1993)) (citing 33 U.S.C. § 1311(b)(1)(A) and (C)).³ NPDES permits also require the holder to establish and maintain records; install, use, and maintain monitoring equipment; sample point source effluent; and submit "discharge monitoring reports" ("DMRs") at regular intervals specified in the permit. 33 U.S.C. § 1318(a)(4)(A); 40 C.F.R. § 122.41(l)(4). "Noncompliance with a permit constitutes a violation of the [Clean Water] Act." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 175, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing 33 U.S.C. § 1342(h)).

While the Environmental Protection Agency ("EPA") is charged with administering the NPDES program, it is empowered to delegate this authority to individual states. 33 U.S.C. § 1342(b). Once the EPA approves a state's proposed NPDES program, the EPA suspends its issuance of NPDES permits as to discharges subject to the state program. 33 U.S.C. § 1342(c)(1). On May 10, 1982, the EPA approved West Virginia's NPDES program, 47 Fed. Reg. 22,363 (May 24, 1982), which is administered by the West Virginia Department of Environmental Protection ("WVDEP"). See Water Pollution Control Act, W. VA.CODE §§ 22-11-1 through 29. Permits issued under the West Virginia NPDES program are known as West Virginia National Pollution Discharge Elimination System ("WV/NPDES") permits.

The EPA, states and private citizens all play a role in enforcing the CWA. Section 505(a)(1) authorizes "citizens"⁴ to commence a civil action "against any person ... who is alleged to be in violation of ... an effluent standard or limitation under this chapter...." 33 U.S.C. 1365(a)(1). Though drafted with less than clarity, section 505(f) provides, "[f]or purposes of this section, the term `effluent standard or limitation under this chapter' means (1) effective July 1, 1973, an unlawful act under subsection (a) of section 1311 of this title [section 301(a) ]; ... [or] (6) a permit or condition thereof issued under section 1342 of this title [section 402]...." 33 U.S.C. § 1365(f). Section 505(a) authorizes, "federal courts ... to enter injunctions and assess civil penalties, payable to the United States Treasury, against any person found to be in violation of `an effluent standard or limitation' under the Act." Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 526 (2008) (citing 33 U.S.C. § 1365(a)).

While violation of the terms of a NPDES or WV/NPDES permit exposes the permit holder to the possibility of a citizen suit, the right to bring a citizen suit is not without limits. Pursuant to section 505(b), a citizen suit under 505(a)(1) can not be commenced until sixty days after the plaintiff gives notice of the alleged violation to the administrator of the EPA, the state where the alleged violation is occurring and to the alleged violator. 33 U.S.C. § 1365(b)(1)(A). Section 505(b) provides further that "[n]o action [under section 505(a)(a) ] may be commenced ... if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order...." 33 U.S.C. § 1365(b). Similarly, section 309(g), which authorizes the EPA to assess administrative penalties for violations of, among other things, the terms of a NPDES permit, precludes citizen suits for violations with respect to which the EPA or a state "has commenced and is diligently prosecuting" an administrative penalty action under section 309(g) or state law "comparable" thereto. 33 U.S.C. § 1319(g)(6)(A).⁵ As will be seen, the applicability of section 309(g)(6) to the facts of this action is in sharp dispute.

B. Surface Mining Control and Reclamation Act

SMCRA is a comprehensive statute "enacted to strike a balance between the nation's interests in protecting the environment from the adverse effects of surface coal mining and in assuring the coal supply essential to the nation's energy requirements." Bragg v. W. Va. Coal Ass'n., 248 F.3d 275, 288 (4th Cir.2001) (citing 30 U.S.C. § 1202(a), (d), (f)); see also Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 269, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). These ends are accomplished through a system of "`cooperative federalism,' in which responsibility for the regulation of surface coal mining in the United States is shared between the U.S. Secretary of the Interior and State regulatory authorities." Bragg, 248 F.3d at 288 (citing H.R.Rep. No. 95-218, at 57 (1977), reprinted in 1977 U.S.C.C.A.N. 593, 595). Under section 503 of SMCRA, once a state's proposed program for the regulation of surface coal mining is approved by the Secretary of the Interior as satisfying SMCRA's minimum requirements, the state assumes "exclusive jurisdiction over the regulation of surface coal mining and reclamation operations" on non-federal lands within the state. 30 U.S.C. § 1253. West Virginia received such federal approval in 1981, 30 C.F.R. § 948.10, and its surface mining program is administered by the WVDEP. See West Virginia Surface Coal Mining Reclamation Act ("WVSCMRA"), W. VA. CODE § 22-3-1 through 32a.

Section 506(a), the heart of SMCRA, prohibits surface coal mining by any person "unless such person has first obtained a permit issued by such State pursuant to an approved State program or by the Secretary pursuant to a Federal program. ..." 30 U.S.C. § 1256(a). Pursuant to section 515(a), permits issued under either an approved state program or the federal program, "shall require that such surface coal mining operations will meet all applicable performance standards of this chapter, and such other requirements as the regulatory authority shall promulgate." 30 U.S.C. § 1265(a).⁶ Similarly, the WVSCMRA provides that "[a]ny permit issued by the director pursuant to this article to conduct surface mining operations shall require that the surface mining operations meet all applicable performance standards of this article and other requirements set forth in legislative rules proposed by the director." W. VA.CODE § 22-3-13(a). In turn, W. VA.CODE R. § 38-2-3.33.c provides that "[t]he permittee shall comply with the terms and conditions of the permit, all applicable performance standards of the Act, and this rule."

Like the CWA, SMCRA contains a "citizen suits" provision. Section 520(a) provides that "any person having an interest which is or may be adversely affected may commence a civil action on his own behalf to compel compliance with this chapter ... against any ... person who is alleged to be in violation of any rule, regulation, order or permit issued pursuant to this subchapter. ..." 30 U.S.C. § 1270(a). Unlike the CWA, however, section 520(a) of SMCRA does not authorize the imposition of civil penalties; citizens are only allowed to file suit in order to compel compliance with SMCRA.⁷ While, as a general rule, section 520(a) affords a cause of action to compel compliance with performance standards incorporated into SMCRA permits issued by authorized states such as West Virginia,⁸ ...