Southern Ohio Coal Co. v. Office of Surface Min., Reclamation and Enforcement, Dept. of Interior

• Decision Date: 31 May 1994
• Docket Number: No. 93-3878,93-3878
• Citation: 20 F.3d 1418
• Parties: , 24 Envtl. L. Rep. 20,848 SOUTHERN OHIO COAL COMPANY, Plaintiff-Appellee, v. OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT, DEPARTMENT OF the INTERIOR; United States Environmental Protection Agency; Richard Seibel, Field Office Director, OSM; W. Hord Tipton, Acting Director, OSM; Carol Browner, EPA Administrator; and Valdas V. Adamkus, EPA Administrator, Region V, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1418

20 F.3d 1418

38 ERC 1393, 24 Envtl. L. Rep. 20,848

SOUTHERN OHIO COAL COMPANY, Plaintiff-Appellee, v. OFFICE OF SURFACE MINING, RECLAMATION AND ENFORCEMENT,

DEPARTMENT OF the INTERIOR; United States Environmental

Protection Agency; Richard Seibel, Field Office Director,

OSM; W. Hord Tipton, Acting Director, OSM; Carol Browner,

EPA Administrator; and Valdas V. Adamkus, EPA

Administrator, Region V, Defendants-Appellants.

No. 93-3878.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 28, 1994.

Decided April 8, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied May 31, 1994.

Anthony J. Celebrezze, Jr., Charles H. Cooper, Jr., Christopher C. Russell, Alvin James McKenna, Donald Michael Miller (argued and briefed), Mark S. Stemm, Janet J. Henry, Porter, Wright, Morris & Arthur, Columbus, OH, for Southern Ohio Coal Co.

James E. Rattan, Asst. U.S. Atty., Office of the U.S. Atty., Columbus, OH, Joshua M. Levin, Myles E. Flint, Environmental Defense Section, Washington, DC, for Department of Interior, Office of Surface Min., Reclamation and Enforcement, Richard Seibel, W. Hord Tipton, Carol Browner, Valdas V. Adamkus.

James E. Rattan, Asst. U.S. Atty., Office of the U.S. Atty., Columbus, OH, Joshua M. Levin, Myles E. Flint, Environmental Defense Section, Washington, DC, Anne S. Almy, Edward A. Boling (argued and briefed), U.S. Dept. of Justice, Washington, DC, for U.S. E.P.A.

Thomas M. Myers (briefed), Shadyside, OH, for District Six and Local Unions 1857 and 1886 of United Mine Workers of America, amicus curiae.

Before: KENNEDY and GUY, Circuit Judges; and CONTIE, Senior Circuit Judge.

KENNEDY, Circuit Judge.

In this appeal, we address two similar issues involving the jurisdiction of the District Court over the United States Environmental Protection Agency ("USEPA") and the Office of Surface Mining, Reclamation and Enforcement of the Department of the Interior ("OSM"). ¹ Both agencies took or threatened to take enforcement actions related to the flooding of an Ohio coal mine that were at odds with decisions of their respective state counterpart agencies, the Ohio Environmental Protection Agency ("OEPA") and the Ohio Division of Reclamation ("ODR"). The court enjoined the federal agencies from acting "to effect the cessation of pumping at [the mine] unless their respective parallel approved state agencies fail to act vigorously, expeditiously, and in accordance with law." Because we find that the court lacked jurisdiction to enjoin USEPA and OSM in this manner, we reverse the judgment of the District Court.

I.

A. Factual Background ²

Plaintiff Southern Ohio Coal Company ("SOCCO") operates one of the country's largest underground coal mines in Meigs County, Ohio. On July 11, 1993, SOCCO's Meigs Mine Number 31 ("Meigs 31") was inundated with water from an adjacent partially abandoned mine known as Raccoon Mine Number 3 ("Raccoon 3"). In 1989, what was formerly Meigs Mine Number 1 and a portion of Raccoon 3 were merged into what is now known as Meigs 31. When Meigs 31 was formed, part of Raccoon 3 was abandoned. A bulkhead was installed between the abandoned portion of Raccoon 3 and Meigs 31 to prevent naturally occurring water in Raccoon 3 from flooding into Meigs 31 and to permit pumping of naturally occurring water from Meigs 31 into Raccoon 3. At the time of the preliminary injunction, the cause of the flood had not been conclusively established and may or may not have been the failure of the bulkhead.

Under normal operations, the naturally occurring minewater, which is highly acidic, is neutralized with an alkaline agent before it is discharged into receiving waters. When wastewater is discharged into the waters of the United States, it must meet effluent limitations and other conditions established under the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. Sec. 1251 et seq., commonly referred to as the Clean Water Act (the "CWA"). The CWA prohibits "the discharge of any pollutant by any person," except as permitted by the CWA. Id. Sec. 1311(a). The primary regulatory mechanism employed to control discharges is a permitting system known as the National Pollutant and Discharge Elimination System ("NPDES"). A NPDES permit is required before a person may discharge pollutants into the navigable waters of the United States. The discharge must be in accordance with the permit's conditions, which include effluent limitations. Under 33 U.S.C. Sec. 1342(b), a state may administer the NPDES permit program within its borders if USEPA determines that the state program meets federal criteria set forth in the CWA and implementing regulations. USEPA approved and authorized the State of Ohio's NPDES program on March 11, 1974.

Meigs 31 naturally takes in and has the capacity to treat two to two and one-half million gallons of water per day. After the flood, an estimated one billion gallons of water filled Meigs 31. The floodwater contained levels of iron over 100 times the legal limit as well as excessive levels of zinc, manganese and copper. Ordinarily, the water would have to be treated before it could be discharged. The mine's existing treatment facilities, however, could not handle such a vast quantity of water within an acceptable time frame. SOCCO estimated that the floodwater would have to be evacuated within a period of two to four months because the water threatened the structural integrity of the mine; otherwise, Meigs 31 could no longer be mined safely. SOCCO operates only two mines, Meigs 31 and Meigs Mine Number 2 ("Meigs 2"). The viability of Meigs 2 depends to a great extent upon the continued operation of Meigs 31.

After reviewing and rejecting various proposals for the evacuation of the floodwater, SOCCO decided upon a plan that called for drilling new boreholes and installing new pumps and pumping untreated and minimally treated water into surrounding creeks and streams, which are tributaries of the Ohio River. SOCCO acknowledged that the discharge would kill all aquatic life, reduce pH levels and increase sedimentation of iron, zinc, manganese and copper in the receiving waters. The proposed evacuation was not predicted to have a permanent effect on the environment; according to SOCCO's experts, the aquatic life that would be killed by the discharge would renew itself within two years. SOCCO also concluded that because the receiving waters were not used for human consumption prior to the proposed evacuation, the plan would not adversely affect human life.

SOCCO needed OEPA's approval to proceed with its plan, as it included discharges from unpermitted sources that exceeded the effluent limitations of SOCCO's NPDES permit. SOCCO's NPDES permit provides for emergency bypasses of permit conditions under certain situations. OEPA found that the situation at Meigs 31 warranted the requested bypass. On July 26, 1993, the Director of OEPA issued a written order, the "Director's Final Findings and Orders" ("DFFO"), authorizing the evacuation plan.

Before SOCCO could begin pumping, the ODR stepped in and prohibited SOCCO from commencing the plan. The ODR is the Ohio agency responsible for enforcing mining laws and regulations in the state and is the primary enforcer of the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. Sec. 1201 et seq. The SMCRA was designed to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations...." Id. Sec. 1202(a). OSM, which was created by the SMCRA, has the responsibility of administering, approving, and overseeing the implementation of the SMCRA's programs. Id. Sec. 1211. Any state that wishes to assume exclusive jurisdiction over implementing and enforcing the SMCRA, may do so subject to federal approval and oversight. Id. Sec. 1253(a). Ohio's regulatory program under the SMCRA was approved by the Secretary of the Interior on August 16, 1982.

ODR found that significant, imminent environmental harm or danger to public health or safety would result if SOCCO's discharge plan was implemented. On July 27, 1993, the Ohio Reclamation Board of Review (the "Board") granted temporary relief from ODR's order upon its finding that the plan posed no threat of imminent harm to the environment or the public. SOCCO again prepared to begin pumping. After its own inspection, OSM ³ entered the picture and issued a cessation order against SOCCO pursuant to 30 U.S.C. Sec. 1271(a)(2). In contrast to the Board's conclusions, OSM found that a threat of significant imminent harm existed and that pumping should not commence.

B. Procedural Background

On July 29, 1993, SOCCO urgently sought a temporary restraining order ("TRO") against OSM:

Immediate relief is requested because, while the ravaging effects of the mine flood continue, Defendants have blatantly and irrationally acted outside their jurisdictional authority by, without cause, ordering immediate cessation of water removal. This unlawful action comes at a time when each passing hour of lost pumping time could mean the difference between saving and losing the mine, and ultimately, the entire complex. Shutdown of this Mine in SOCCO's two-mine complex seriously jeopardizes the economic viability of the entire complex. At stake are the jobs of 820 employees, over 4,900 mine-support and spin-off jobs and over One Hundred Million Dollars ($100,000,000.00) contributed annually by SOCCO and its employees to the local economies of the area.

SOCCO alleged that OSM was acting without authority because the state had primary enforcement authority under the SMCRA. The court granted the TRO the next day, finding that since OSM had approved the state program, including the procedure of Board review of ODR decisions, OSM was required to defer to the state's actions so long as the actions were in accordance with approved procedures. The order declared OSM's cessation order a nullity and restrained OSM from acting in...