West Va. HIGHLANDS CONSERVANCY v. HUFFMAN

• Decision Date: 08 November 2010
• Docket Number: No. 09-1474.,09-1474.
• Citation: 625 F.3d 159
• Parties: WEST VIRGINIA HIGHLANDS CONSERVANCY, INCORPORATED; West Virginia Rivers Coalition, Plaintiffs-Appellees, v. Randy C. HUFFMAN, Secretary, West Virginia Department of Environmental Protection, Defendant-Appellant. Interstate Mining Compact Commission, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

625 F.3d 159

WEST VIRGINIA HIGHLANDS CONSERVANCY, INCORPORATED; West Virginia Rivers Coalition, Plaintiffs-Appellees,

v. Randy C. HUFFMAN, Secretary, West Virginia Department of Environmental Protection, Defendant-Appellant.Interstate Mining Compact Commission, Amicus Supporting Appellant.

No. 09-1474.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 21, 2010.

Decided: Nov. 8, 2010.

COPYRIGHT MATERIAL OMITTED.

ARGUED: Benjamin L. Bailey, Bailey & Glasser, LLP, Charleston, West Virginia, for Appellant. James M. Hecker, Public Justice, Washington, D.C., for Appellees. ON BRIEF: Raymond S. Franks, West Virginia Department of Environmental Protection, Charleston, West Virginia, for Appellant. Joseph M. Lovett, Derek Teaney, Appalachian Center for the Economy and the Environment, Lewisburg, West Virginia, for Appellees. Gregory E. Conrad, Executive Director, Interstate Mining Compact Commission, Herndon, Virginia; Richard S. Morrison, Assistant Counsel, Commonwealth of Pennsylvania, Department of Environmental Protection, Harrisburg, Pennsylvania, for Amicus Supporting Appellant.

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge SHEDD and Judge DUNCAN joined.

OPINION

WILKINSON, Circuit Judge:

The West Virginia Department of Environmental Protection (“WVDEP”) appeals an injunction requiring it to obtain National Pollutant Discharge Elimination System permits under the Clean Water Act (“CWA”), see 33 U.S.C. § 1342 et seq., for reclamation efforts at abandoned coal mining sites. The injunction was based on the district court's conclusion that the plain language of the CWA and applicable EPA regulations require such a permit.

The trial court's ruling was correct. The text of the CWA, as well as the corresponding regulations issued by the Environmental Protection Agency, confirm that the permit requirements apply to anyone who discharges pollutants into the waters of the United States. Under the CWA, it does not matter that a mining company may have created the conditions that call for reclamation. What matters is that an entity, private or public, is currently discharging pollutants into the waters of the United States. In fact, the statute contains no exceptions for state agencies engaging in reclamation efforts; to the contrary, it explicitly includes them within its scope.

At bottom, WVDEP's arguments stem from little more than policy disagreements with the statutory text. Finding that to be an insufficient basis for deviating from the law as written, we affirm the judgment of the district court.

I.

A.

Congress enacted the Federal Water Pollution Control Act Amendments of 1972, better known as the Clean Water Act (“CWA”), in order to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” Pub.L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. § 1251 et seq.). In furtherance of those goals, the CWA bans, among other things, “the discharge of any pollutant by any person.” 33 U.S.C. § 1311(a). On its face, the ban is sweeping in scope: the Act defines “person” to include not just private individuals and companies, but also states and municipalities, see 33 U.S.C. § 1362(5), and covers “any addition of any pollutant to navigable waters from any point source,” see 33 U.S.C. § 1362(12)(A).

In the coal industry, “the discharge of ... pollutant[s]” occurs frequently. The mining process often contaminates water associated with the mine site (such as stormwater or wastewater) with pollutants like iron and manganese. This polluted water is known as “acid mine drainage” because mining makes the water quite acidic, often decreasing the pH to well below 6.0. Under the pH scale, a pH of 7.0 is neutral, a pH of less than 7.0 is acidic, and a pH of greater than 7.0 is basic. The fact that acid mine drainage has a pH of at most 6.0 means that it is substantially more acidic than a neutral solution.

Of course, the CWA does not set out to ban coal mining. Instead, it allows mining companies to apply for pollution permits, known as National Pollutant Discharge Elimination System (“NPDES”) permits. These permits set forth limitations on the type and quantity of pollutants that will ultimately be released into navigable waters. See S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004); Natural Res. Def. Council v. Costle, 568 F.2d 1369, 1375 (D.C.Cir.1977) (observing that the permit scheme recognizes that “pollution continues because of technological limits, not because of any inherent rights to use the nation's waterways for the purpose of disposing of wastes.”). While NPDES permits are normally issued by the EPA, states can petition to run their own NPDES permit programs. See 33 U.S.C. § 1342(a)-(b). In administering these programs, states are free to treat the EPA's pollution limits as a floor and impose more stringent requirements. See 40 C.F.R. §§ 123.1(i)(1), 123.25. Once an NPDES permit has been issued, however, the state, the EPA, and citizens alike can sue to enforce it. See 33 U.S.C. §§ 1319(a)(3) (EPA enforcement), 1365(a) (citizen-suit provision).

West Virginia has successfully petitioned to run its own NPDES permit program, meaning that putative mine operators must apply to the West Virginia Department of Environmental Protection (“WVDEP”) rather than the EPA. ¹ See 47 Fed.Reg. 22363 (May 24, 1982) (approving West Virginia's program); W. Va.Code R. § 47-10-1 et seq. (setting forth regulations governing NPDES program). Because acid mine drainage is one of the most serious water quality problems facing West Virginia, its NPDES permits carry a corresponding obligation to neutralize the adverse effects of the effluent. See W. Va.Code § 22-3-9(a)(16) (requiring the submission of a reclamation plan along with a permit application); id. at § 22-3-10 (outlining reclamation plan requirements). In other words, mine operators must raise the overall pH level and reduce the harmful chemical levels in the acid mine drainage. West Virginia, however, does not just blindly trust the mine operators to carry out their obligations. Instead, as a condition of receiving their permits, mine operators must post bonds with the state designed to guarantee their compliance. See W. Va.Code § 22-3-11(a). If the mine operators default on their duties, WVDEP can revoke the permits and force the performance bonds into forfeiture. See W. Va.Code § 22-3-17(b).

The consequences of revocation are what bring this case before us. State regulations require WVDEP to treat acid mine drainage at bond forfeiture sites in accordance with the EPA's effluent limitations for coal mining point sources and “applicable water quality standards.” W. Va.Code R. § 38-2-12.5.e (referencing standards set forth in 40 C.F.R. § 434); see id. at § 38-2-12.4.b. The EPA limitations are known as “technology-based” limitations because they are predicated upon the “best practicable” known technologies for treatment. 40 C.F.R. § 434.32. Based on average daily emissions, these standards require, among other things, a pH level between 6.0 to 9.0, an iron concentration of no more than 3 mg/l of effluent, and a manganese concentration of at most 2 mg/l. See 40 C.F.R. § 434.35. These limits are stringent, but ultimately less so than West Virginia's applicable water quality standards, as the state has decided to require iron and manganese limitations that are twice as strict (1.5 mg/l and 1.0 mg/l, respectively). See W. Va.Code R. § 47-2, app. E, tbl.1, parameters 8.15, 8.17.

According to WVDEP's own regulations, WVDEP must meet these standards by taking “the most effective actions possible to remediate acid mine drainage, including chemical treatment where appropriate, with the resources available.” W. Va.Code R. § 38-2-12.4.c. Generally speaking, WVDEP initially employs the existing treatment system as a temporary salve and then installs a series of water wheels that mechanically release neutralizing agents. That system increases the pH of the water out of the acidic range and precipitates out the harmful chemicals. In short, it is intended to turn acid mine drainage back into normal water.

As effective as this treatment may be, it is not cheap. WVDEP's regulations require the agency to direct the entire proceeds of the forfeited penal bond towards reclamation. W. Va.Code R. § 38-2-12.4.b. Often, the bond proceeds are insufficient; in such circumstances, WVDEP must continue treatment by drawing upon the Special Reclamation Fund (“SRF”). W. Va.Code R. § 38-2-12.4.d; see also West Virginia ex rel. W. Va. Highlands Conservancy, Inc. v. WVDEP, 191 W.Va. 719, 447 S.E.2d 920, 925 (1994) (holding that duty to expend SRF funds is “mandatory” and “nondiscretionary”); 67 Fed.Reg. 37610, 37612 (May 29, 2002) (removing limitations on expenditure of funds). The SRF is funded by a tax on coal mined throughout the state. W. Va.Code § 22-3-11(g), -11(h)(1) (setting tax at 14.4 cents/ton).

B.

The dispute before us stems from WVDEP's reclamation efforts at several bond forfeiture sites in Preston, Monongalia, and Upshur counties in north central West Virginia. In 2007, the West Virginia Highlands Conservancy and West Virginia Rivers Coalition (collectively, “the Conservancy”) requested water quality data from those sites. Based on the data, the Conservancy determined that there were eighteen bond forfeiture sites in northern West Virginia that were actively discharging acid mine drainage into state streams.

In 2007, the Conservancy filed suit in the United States District Court for the Northern District of West Virginia under the CWA's citizen-suit provision. See 33 U.S.C. § 1365. The lawsuit sought declaratory and injunctive relief requiring WVDEP to obtain NPDES permits at the bond forfeiture sites within thirty days. ² According to the Conservancy, it was not enough for WVDEP...