West Virginia Coal Ass'n v. Reilly

Decision Date28 December 1989
Docket NumberCiv. A. No. 2:87-0834.
CourtU.S. District Court — Southern District of West Virginia
PartiesWEST VIRGINIA COAL ASSOCIATION; West Virginia Mining and Reclamation Association; American Electric Power Fuel Supply Corporation; Cannelton Industries, Inc.; Elk Run Coal Company, Inc.; Omar Mining Company; U.S. Steel Mining Company, Inc.; Westmoreland Coal Company, Inc.; and Wynchester Mining Company, Inc., Plaintiffs, v. William K. REILLY, Administrator, United States Environmental Protection Agency, Defendant.

James R. Snyder, Jackson & Kelly, Charleston, W.Va., for plaintiffs.

Stephen M. Horn, Asst. U.S. Atty., Charleston, W.Va., Bradley S. Bridgewater, Land & Natural Resources Div., Washington, D.C., for defendant.


COPENHAVER, District Judge.

This matter is before the court on the plaintiffs' motion for summary judgment. The question presented to the court is whether the United States Environmental Protection Agency (hereinafter, "EPA") has statutory authority under the Clean Water Act to adopt a policy which generally prohibits in-stream treatment ponds and fills and to object to draft National Pollutant Discharge Elimination System permits submitted to it by the West Virginia Department of Natural Resources on the basis that the draft permits authorize such ponds and fills.

I. Background

In its memorandum order of March 6, 1989, the court set forth a major portion of the facts and the statutory and regulatory framework; however, since that time supplemental materials have been submitted to the court. In light of the additional information, and in the interest of analytical clarity, a recount of the facts and law is now provided.

A. Statutory Framework

The controversy arises from the Federal Water Pollution Control Act of 1948, ch. 758, 62 Stat. 1155, as amended by the Clean Water Act of 1977, Pub.L. 95-217, 91 Stat. 1567, 1575 (current version at 33 U.S.C. § 1251-1387 (1987)). (The entire statutory embodiment will hereinafter be referred to as the "Clean Water Act" or the "Act.") Congress' objective in enacting the Clean Water Act was "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" by, inter alia, the control and eventual elimination of discharges of pollutants into the waters of the United States. 33 U.S.C. § 1251.

On July 9, 1970, President Nixon signed and delivered to Congress The Reorganization Plan No. 3 of 1970, thereby establishing the Environmental Protection Agency (hereinafter, "EPA") as an independent agency within the Executive branch. Reorg. Plan No. 3 of 1970, 40 C.F.R. 1.1 (1970), reprinted in 5 U.S.C. app. at 99 (1989 Supp.) and in 84 Stat. 2086 (1970). In enacting the Clean Water Act, Congress charged the Administrator of the EPA (hereinafter, "Administrator") with largely exclusive administration of its provisions. 33 U.S.C. § 1251(d).

Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a) prohibits the discharge of any pollutant, except in compliance with specific enumerated sections of the Act, including section 402 and section 404, the sections at issue here.

Section 402, 33 U.S.C. § 1342, establishes the National Pollution Discharge Elimination System (hereinafter "NPDES"). The NPDES is a permit program pursuant to which EPA is given authority to issue permits for the discharge of pollutants, notwithstanding the general prohibition contained in section 301. Issuance of permits is conditioned upon compliance by the permittees with all effluent elimination requirements established in the Act or with conditions imposed upon the permit deemed necessary by the Administrator to carry out the provisions of the Act. 33 U.S.C. § 1342(a)(1). Section 402(b) allows states desiring to implement their own NPDES program to submit to the Administrator a proposed NPDES program. 33 U.S.C. § 1342(b). Such delegation of administration of the NPDES program is consistent with Congress' intent to preserve in the states the primary responsibility and right to control pollution in their own waters. 33 U.S.C. § 1251(b). Once a state's program has been approved, section 402(c)(1) requires EPA to suspend its own issuance of NPDES permits for the waters covered by the state program. 33 U.S.C. § 1342(c)(1). To attain approved status, the state program must insure compliance with all applicable federal water quality standards. 33 U.S.C. § 1342(b)(1)(A).

EPA retains oversight dominion over the state program primarily through two mechanisms. First, section 402(d)(1) requires states to provide the Administrator with copies of all NPDES permit applications. 33 U.S.C. § 1342(d)(1). Under section 402(d)(2), the Administrator retains the power to object to the state's issuance of a permit as being outside the guidelines and requirements of the Clean Water Act. If the state fails to submit a revised permit which satisfies the Administrator's objections, EPA may issue its own permit containing its own conditions. 33 U.S.C. § 1342(d)(4). The second, more drastic, mechanism available to the Administrator to insure compliance with the Clean Water Act is withdrawal of state NPDES program approval. 33 U.S.C. § 1342(c)(3).

Section 404 of the Clean Water Act, 33 U.S.C. § 1344, empowers the Secretary of the Army to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a). Permits for the discharge of dredged or fill material issued pursuant to section 404 are expressly excepted from the application of the NPDES program, 33 U.S.C. § 1342(a), which provides "Except as provided in sections 1328 and 1344 of this title, the Administrator may, ... issue a permit for the discharge of any pollutant." In order to minimize confusion as to the application of the NPDES and the dredge and fill permit programs, Congress commanded that the Secretary of the Army enter into an agreement with the Administrator in order to "minimize, to the maximum extent practicable, duplication, needless paperwork, and delays in the issuance of permits." 33 U.S.C. § 1344(q). To that end, the Secretary of the Army and the Administrator entered into a memorandum of agreement on February 28, 1986, to address the applicability and overlap of the 402 and 404 permit programs. See 51 Fed.Reg. 8871 (1986).

B. Facts

On May 20, 1982, EPA approved West Virginia's NPDES program. 47 Fed.Reg. 22,363 (1982). That approval was based on a "determination by the EPA Administrator that the West Virginia program for the control of discharges into navigable waters within their jurisdiction satisfies the requirements of section 402(b)" of the Clean Water Act. The state NPDES program is administered by the West Virginia Department of Natural Resources Division of Water Resources (hereinafter, "DNR"). W.Va.Code § 20-5A-4.

Sometime after 1982, EPA identified certain areas of concern with the West Virginia program and the State and EPA entered into an agreement, effective January 5, 1987, for the purpose of bringing the state program into full compliance with the mandates of the Clean Water Act. Agreement Regarding the National Pollutant Discharge Elimination System (NPDES) Permit Program Between the U.S. Environmental Protection Agency, Region III and the State of West Virginia, Jan. 5, 1987, Defendant's Memorandum in Support of Defendant's Motion to Dismiss, Exhibit 1. Particularly, EPA noted that it was "concerned about the use of in-stream ponds for the treatment of coal mining wastewaters in West Virginia." Id. at 10. Pursuant to the agreement, West Virginia agreed to develop and propose to EPA an in-stream treatment pond policy setting forth restrictions on the use of such ponds and proposed guidelines for the implementation of such policy. Id. EPA concurrently pledged to develop and implement its own nationwide policy. Id.

By letter dated July 10, 1987, the Director of the Water Management Division of Region III of EPA, Alvin Morris, advised DNR that West Virginia's proposed in-stream treatment policy was unacceptable as it was inconsistent with the Clean Water Act and West Virginia Water Quality Standards. Complaint, Exhibit A. Accompanying the letter was a document entitled "EPA Region III Policy for Instream Treatment of Mining Wastewaters," (hereinafter, "1987 policy"). Id. The policy announced that "the impoundment of waters of the United States for instream treatment of mining related wastewaters is prohibited." Id. at 1. The policy further provided that in instances where DNR determines that (1) there exists no feasible alternative to in-stream treatment and (2) that any lowering of water quality would comply with federal anti-degradation regulations, EPA would not object provided certain conditions were met.1

In November of 1988, EPA announced a new draft policy for in-stream treatment and filling (hereinafter, "1988 policy").2 The new policy reflects a greater willingness on the part of EPA to accommodate the coal mining industry. For example, the express prohibition on location of ponds and fills in perennial streams has been removed. Compare 1987 Policy, ¶ 6, n. 1 with 1988 Policy, ¶ 4, n. 2. The new policy reflects a greater focus on the impact on preservation and replacement of existing aquatic life. For example, the state must assure EPA that no feasible alternative exists to in-stream location only in instances where aquatic life is impacted. The 1988 policy continues the 1987 policy's goal of obtaining biological survey data from permittees.

While the plaintiffs address the 1988 policy only incidentally, presumably their argument that EPA has no authority to regulate in-stream fills and ponds extends to this policy as well as the 1987 policy. Accordingly, the court's analysis will be inclusive of both such policies.

At this point, it is necessary to digress long enough to describe the physical structures and processes that are at issue in this case. Federal and...

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