Tennant v. Callaghan
| Decision Date | 16 July 1997 |
| Docket Number | No. 23902,23902 |
| Citation | 200 W.Va. 756,490 S.E.2d 845 |
| Court | West Virginia Supreme Court |
| Parties | Moses TENNANT, Plaintiff Below, Appellant, v. David C. CALLAGHAN, Director of the West Virginia Division of Environmental Protection, Defendant Below, Appellee, and American Bituminous Power Partners, L.P. Intervenor Below, Appellee. |
Syllabus by the Court
" ' .' Syl. pt. 1, HCCRA v. Boone Memorial Hospital, 196 W.Va. 326, 472 S.E.2d 411 (1996).
Moses Tennant, Fairview, pro se.
Joseph A. Lazell, Office of Legal Services, West Virginia Division of Environmental Protection, Charleston, for David C. Callaghan.
W. Henry Lawrence, IV, Robert D. Pollitt, Steven P. McGowan, Steptoe & Johnson, Clarksburg, for American Bituminous Power Partners, L.P.
The appellant, Moses Tennant, pro se, appeals the January 25, 1996 order of the Circuit Court of Marion County which affirmed the Surface Mine Board's decision to dismiss the appellant's appeal. The Surface Mine Board, in a May 17, 1995 order, dismissed the appeal after concluding that it did not have jurisdiction to resolve the issues raised by the appellant. For reasons explained below, we affirm the January 25, 1996 order of the circuit court.
The appellant asserts that the issue before the Surface Mine Board was whether the West Virginia Division of Environmental Protection (hereinafter the "DEP") erred in renewing American Bituminous Power Partners, L.P.'s (hereinafter "American Bituminous") Permit No. R-1038-88, (hereinafter the "coal permit"). Although the appellant's argument is somewhat unclear, it appears that he challenged the coal permit renewal on the basis that American Bituminous's acid mine drainage discharge into an underground mine violated the coal permit conditions and resulted in contamination of his well water. However, American Bituminous was authorized to discharge the acid mine drainage in the underground mine pursuant to a permit known as the "NPDES permit." Though the Surface Mine Board has jurisdiction to determine whether American Bituminous's coal permit was properly renewed, see W. Va.Code, 22-3-21(b) [1994], it does not have jurisdiction to determine whether the NPDES permit was properly issued. Instead, the Environmental Quality Board reviews the issuance and renewals of NPDES permits. W. Va.Code, 22-11-21 [1994]. Thus, the issue before us is whether the Surface Mine Board has jurisdiction over appellant's complaint or whether the Environmental Quality Board has jurisdiction. To better understand the appellant's argument and the Surface Mine Board's holding, a brief discussion of the history of American Bituminous's two permits is necessary.
On January 10, 1995, the DEP approved an application to renew American Bituminous's coal permit thereby allowing American Bituminous to continue its surface-mining operations in Marion County. 1 More specifically, the coal permit authorizes American Bituminous to mine an existing coal refuse disposal pile. The coal mined from the coal refuse pile is used as a fuel at the Grant Town Power Plant. The permit also authorizes American Bituminous to utilize the site of the coal refuse pile to dispose of the waste (coal ash) 2 generated by the power plant.
American Bituminous's coal permit was issued under the provisions of the Surface Coal Mining and Reclamation Act found in W. Va.Code, 22-3-1, et seq., which requires any person conducting coal-mining operations in West Virginia to obtain such a permit. W. Va.Code, 22-3-8 [1995]. Once a coal permit is issued, it carries with it the right to successive renewals. Indeed, a coal permit must be renewed upon the application of the permittee unless the DEP establishes in written findings or the opponent of the renewal proves that:
(A) The terms and conditions of the existing permit are not being satisfactorily met ...; (B) the present surface-mining operation is not in compliance with the applicable environmental protection standards of [the Act]; (C) the renewal requested substantially jeopardizes the operator's continuing responsibility on existing permit areas; (D) the operator has not provided evidence that the bond in effect for said operation will continue in effect for any renewal requested as required pursuant to sections eleven or twelve of [the Act]; 3 or (E) any additional revised or updated information as required pursuant to rules promulgated by the [DEP] director has not been provided.
W. Va.Code, 22-3-19(a)(1) [1994] (footnote added). Any appeal regarding the DEP's issuance of a coal permit under the Surface Coal Mining and Reclamation Act must be made to the Surface Mine Board. See W. Va.Code, 22-3-21(b) [1994]. 4
On December 27, 1994, the DEP's Office of Water Resources reissued a NPDES 5 permit to American Bituminous which authorized it, inter alia, to discharge untreated acid mine drainage from its surface mining operations under the coal permit, as well as cooling water and waste water from the power plant, into an underground mine abandoned by Eastern Associated Coal.
The NPDES permit was issued pursuant to the Water Pollution Control Act found in W. Va.Code, 22-11-1, et seq., which requires, according to the DEP, the issuance of such a permit "whenever there is a discharge of any amount of 'pollutant,' 6 treated or untreated, from a 'point source' 7 into the 'waters' 8 of this state[.]" (footnotes added). See W. Va.Code, 20-11-8(b) [1994]. Moreover, W. Va.Code, 22-11-8(d) [1994] makes clear that the Office of Water Resources (an office within the DEP) issues NPDES permits for all activities regulated under coal permits which discharge a "pollutant" from a "point source" into the "waters" of this State:
For water pollution control and national pollutant discharge elimination system permits issued for activities regulated by the office of mining and reclamation and the office of oil and gas, the chief of the office of water resources may delegate functions, procedures and activities to the respective chiefs of those offices. Permits for such activities shall be issued under the supervision of and with the signature and approval of the chief of the office of water resources who shall review and approve all procedures, effluent limits and other conditions of such permits.
(emphasis added). Any appeal regarding the Office of Water Resource's issuance of a NPDES permit must be made to the Environmental Quality Board. See W. Va.Code, 22-11-21 [1994]. 9
The appellant challenged the DEP's January 10, 1995 renewal of American Bituminous's coal permit by requesting a hearing before the Surface Mine Board. See W. Va.Code, 22-3-21(b) [1994] (). The appellant raised several issues which can be best summarized by the following statement, made at the April 25, 1995 hearing before the Surface Mine Board: "I want them [the Surface Mine Board] to stop American Bituminous Power Partners from pumping acid mine drainage cooling water down into Federal No. 1 Mine." The appellant believed that American Bituminous should be required to treat the polluted drainage from the area mined pursuant to the coal permit and water from the power plant before that drainage was discharged into the underground mine.
The Surface Mine Board, after conducting a hearing, determined that the appellant's appeal concerned the issuance of American Bituminous's NPDES permit rather than its coal permit. The Surface Mine Board stated that because any complaints regarding the issuance of the NPDES permit are within the sole jurisdiction of the Environmental Quality Board, it did not have jurisdiction to resolve the issues raised by the appellant. Thus, the Board dismissed the appellant's appeal by an order dated May 17, 1995.
The appellant appealed the Surface Mine Board's order to the circuit court which, after conducting a hearing and reviewing the underlying record, stated that it could find
no reason to remand, reverse, vacate, or modify the ruling of the [Surface Mine Board]. [The Surface Mine Board] found that it lacked jurisdiction to address the issues raised by [the appellant] in the proceedings before it and dismissed his appeal. [The appellant] has presented no evidence nor made any viable argument that this ruling was in violation of constitutional or statutory provisions; in excess of the statutory authority or jurisdiction of the agency; made upon unlawful procedures; affected by other error of law; clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted...
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