State ex rel. Laurel Mountain/Fellowsville Area Clean Watershed Ass'n, Inc. v. Callaghan

• Decision Date: 15 May 1992
• Docket Number: No. 21062,21062
• Citation: 187 W.Va. 266,418 S.E.2d 580
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. LAUREL MOUNTAIN/FELLOWSVILLE AREA CLEAN WATERSHED ASSOCIATION, INC., David M. Haggerty, David C. Houser, George M. Ridenour, Carol T. Larew, Ray E. Simons, Margie Ridenour, Acie Hershman, Lowell Larew, David Combian, Edward E. Knotts, Wanda Joyce King, John F. Murray, Clyde W. Ridenour, Lydia C. Hershman, Tina Huffman, Jerry Lee Murray, Richard Glenn Matlick, Garner Larew, William E. Poling, Daniel L. Murray, Billy L. Hovatter, Virginia Hurrman, Robert Shiff, Larry F. Huffman, Violet M. Pyles, Richard A. Phillips, Jimmy Davis, Leland A. Bolyard, Lorn A. Wolfe, L. Darwin Wolfe, Vana Hershman, Terry Shipp, Debbie Shipp, Helen Huffman, Kip Colebank, Orpha E. Bolyard, Edward E. Murray, Jack C. Hershman, Patsie Bolyard, Donald P. Knotts, William R. Murray, Walter E. Murray, Ricky E. Murray, Junior P. Knotts, Ronald Phillips, James E. Channel and Stanley W. Jennings, Petitioners, v. David C. CALLAGHAN, Director, West Virginia Division of Environmental Protection, and F & M Coal Company, a Partnership, Respondents.

Page 580

418 S.E.2d 580

187 W.Va. 266

STATE of West Virginia ex rel. LAUREL MOUNTAIN/FELLOWSVILLE AREA CLEAN WATERSHED ASSOCIATION, INC., David M. Haggerty David C. Houser, George M. Ridenour, Carol T. Larew, Ray E Simons, Margie Ridenour, Acie Hershman, Lowell Larew, David Combian, Edward E. Knotts, Wanda Joyce King, John F. Murray Clyde W. Ridenour, Lydia C. Hershman, Tina Huffman, Jerry Lee Murray, Richard Glenn Matlick, Garner Larew, William E Poling, Daniel L. Murray, Billy L. Hovatter, Virginia Hurrman, Robert Shiff, Larry F. Huffman, Violet M. Pyles, Richard A. Phillips, Jimmy Davis, Leland A. Bolyard, Lorn A. Wolfe, L. Darwin Wolfe, Vana Hershman, Terry Shipp, Debbie Shipp, Helen Huffman, Kip Colebank, Orpha E. Bolyard, Edward E. Murray, Jack C. Hershman, Patsie Bolyard, Donald P. Knotts, William R. Murray, Walter E. Murray, Ricky E. Murray, Junior P. Knotts, Ronald Phillips, James E. Channel and Stanley W. Jennings, Petitioners, v. David C. CALLAGHAN, Director, West Virginia Division of Environmental Protection, and F & M Coal Company, a Partnership, Respondents.

No. 21062.

Supreme Court of Appeals of West Virginia.

Submitted April 28, 1992.

Decided May 15, 1992.

SYLLABUS BY THE COURT

1. When the language of a regulation promulgated pursuant to the West Virginia Surface Mining and Reclamation Act, W.Va. Code, 22A-3-1 et seq., is clear and unambiguous, the plain meaning of the regulation is to be accepted and followed without resorting to the rules of interpretation or construction.

2. Pursuant to 38 C.S.R. 2-12.4(c) (1991), the Commissioner of the Division of Environmental Protection has a duty to utilize the proceeds from forfeited bonds to accomplish the completion of reclamation of affected lands of a surface mine.

Tom Rodd, Morgantown, West Virginia, and Robert F. Cohen, Jr., Cohen, Abate & Cohen, Fairmont, West Virginia, Attorneys for the Petitioners.

Mario J. Palumbo, Joseph A. Lazell, Office of the Attorney General, Attorneys for the Respondent. CHIEF

Petition for Writ of Mandamus

McHugh, Justice:

In this original proceeding, the petitioners, the Laurel Mountain/Fellowsville Clean Water Association and numerous citizens, seek a writ of mandamus compelling the respondent, the Director of the Division of Environmental Protection (the "Division"), to take over and operate the acid mine drainage treatment facilities of F & M Coal Company, by using the proceeds from forfeiture bonds totalling $ 268,000. F & M is also a respondent in this proceeding, but has made no appearance.

I

From 1984 to 1988, F & M obtained three performance bonds totalling $268,000 in order to operate under surface mine permits on Laurel Mountain in Preston County. ¹ See W.Va.Code, 22A-3-11 [1990].

The petitioners allege that F & M's surface mining on Laurel Mountain has disturbed large amounts of rock overburden which contain acid-producing materials, and as a result of the exposure of such materials to ground and surface water drainage, these mine sites have become a potent source of acid mine drainage in the headwaters of the Left Fork of Sandy Creek.

The petitioners further allege that prior to F & M's surface mining, which began in 1984, acid mine drainage was not a significant problem in the Left Fork. The respondent, on the other hand, argues that a "probable hydrologic consequences" report, which was done in connection with F & M's first permit application in 1984, indicated that the pH factor in the water was between 3.0 and 4.4 at that time. ² Moreover, the respondent contends that this was caused by mining performed prior to the time that permits were required. In other words, the respondent maintains that the quality of the water was deteriorated prior to F & M's mining. However, the respondent acknowledges that from 1984 to 1991, F & M's surface mining operations had an adverse impact on aquatic life in the Left Fork, and consequently, by 1991, the stream was biologically dead.

From 1986 to 1991, the Division issued a total of 56 violations to F & M relating to a wide range of surface mining requirements.

In early 1991, a "show cause" hearing was set for June, 1991, so that F & M could demonstrate why its permits should not be revoked. See W.Va.Code, 22A-3-17 [1991]. However, in March, 1992, F & M withdrew its request for a show cause hearing, and accordingly, the Division sent letters to the sureties requesting payment on the surety bonds.

In October, 1990, F & M had filed a petition for relief under Chapter 11 of the United States Bankruptcy Code. In December, 1990, F & M auctioned several assets, realizing proceeds in the amount of $1.5 million, which it then used to treat acid mine drainage at Laurel Mountain. ³

In March, 1991, the unsecured creditors of F & M asked the bankruptcy court to prohibit F & M from continuing to expend funds for acid mine drainage treatment. This request, which was opposed by the Division, F & M, and others, was denied in May, 1991, and renewed by other unsecured creditors in September, 1991. In November, 1991, following a hearing, the bankruptcy court authorized F & M to spend $10,150 on a monthly basis for the continued treatment of acid mine drainage.

Following negotiations, the bankruptcy court held two telephonic hearings on March 4, 1992, and March 13, 1992. The petitioners point out that at these hearings, counsel for the Division stated that the Division would take over operations of F & M's acid mine drainage treatment facilities immediately. ⁴

On March 13, 1992, the bankruptcy court entered an order freezing F & M's remaining funds, which, at this point, amounted to only $68,000; forfeiting the bonds in favor of the State; and holding that the responsibility for treatment and reclamation is with the State, although the bankruptcy court expressly made no determination as to the State's duties with respect thereto.

II

The petitioners contend that under the Code of State Regulations, the respondent has a nondiscretionary duty to reclaim the Laurel Mountain site by using the proceeds of performance bonds. ⁵

Specifically, the petitioners rely on 38 C.S.R. § 2-12.4(c) (1991), which provides: "(c) Where the bond is forfeited, the proceeds shall be used by the Commissioner to accomplish the completion of reclamation, including the requirements of Section 23 of the Act and Subsection 14.5 of these regulations governing water quality." ⁶

The respondent, on the other hand, maintains that it has 180 days after forfeiture to accomplish the completion of reclamation. Specifically, the provision relied upon by the respondent is 38 C.S.R. § 2-12.4(d) (1991), which states:

(d) Where the proceeds of bond forfeiture used by the Commissioner to complete reclamation are less than the actual cost of reclamation:

(1) The permittee shall be liable for all reclamation costs, and the Commissioner shall collect from the permittee all costs in excess of the amount forfeited; or

(2) Notwithstanding efforts by the Commissioner to collect the costs from the permittee, the Commissioner shall in a timely manner but not later than one hundred eighty days after forfeiture of the site-specific bond utilize monies in the Special Reclamation Fund created by Subsection (g), Section 11 of the Act, to accomplish the completion of reclamation, including the requirements of Section 23 of the Act and Subsection 14.5 of these regulations governing water quality.

(emphasis supplied)

Accordingly, as stated in 12.4(d)(2), the respondent would have 180 days to accomplish the completion of reclamation, and this reclamation may be financed by the utilization of the "Special Reclamation Fund" created by W.Va.Code, 22A-3-11(g) [1990]. ⁷ The respondent points out that this subsection imposes only a discretionary duty to use the funds in the Special Reclamation Fund. Consequently, the respondent argues that because it does not have the actual proceeds from the forfeited bonds in hand, then it cannot proceed with reclamation pursuant to 12.4(c). Rather, under 12.4(d), this would constitute a situation where the proceeds of bond forfeiture are less than the actual costs of reclamation. Therefore, under W.Va.Code, 22A-3-11(g) [1990], the respondent's duty to use funds from the Special Reclamation Fund is not mandatory, but merely discretionary. ⁸

We do not agree with the respondent's position. There is nothing in 12.4(d) to indicate that the failure to collect the proceeds of the bonds may be equated with the situation of the bond proceeds actually being less than the cost of reclamation. Therefore, 12.4(d) would not even apply to this case, and consequently, the question of whether the respondent's action under W.Va.Code, 22A-3-11(g) [1990] is discretionary in this case need not even be reached.

The respondent's position in this regard is tenuous because: (1) it cannot be determined, at this point, what the actual cost will be to accomplish reclamation; and (2) uncollected bond proceeds do not necessarily mean insufficient bond proceeds.

Moreover, we believe that 12.4(c) imposes a mandatory duty upon the respondent to accomplish the completion of reclamation in this case. The plain language of that regulation makes it clear that the proceeds from a forfeited bond "shall be used by the Commissioner to accomplish the completion of reclamation[.]" This regulation, which is promulgated pursuant to W.Va.Code, 22A-3-4 [1985], operates to eliminate acid mine drainage at levels that would violate effluent limitations, thus furthering the legislative finding that "it is essential to the economic and social well-being of the citizens of the state of West Virginia to strike a careful balance between the protection of the environment and the economical mining of coal needed to meet energy requirements." W.Va.Code, 22A-3-2 [1985]. ⁹

"Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syl. pt. 2,...