West Virginia Highlands Conservancy v. Huffman

• Citation: 651 F.Supp.2d 512
• Decision Date: 24 August 2009
• Docket Number: Civil Action No. 2:07-0410.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: WEST VIRGINIA HIGHLANDS CONSERVANCY, INC. and West Virginia Rivers Coalition, Inc., Plaintiffs, v. Randy C. HUFFMAN, Secretary, West Virginia Department of Environmental Protection, Defendant.

651 F.Supp.2d 512

WEST VIRGINIA HIGHLANDS CONSERVANCY, INC. and West Virginia Rivers Coalition, Inc., Plaintiffs, v. Randy C. HUFFMAN, Secretary, West Virginia Department of Environmental Protection, Defendant.

Civil Action No. 2:07-0410.

United States District Court, S.D. West Virginia, at Charleston.

August 24, 2009.

COPYRIGHT MATERIAL OMITTED

Derek O. Teaney, Joseph Mark Lovett, Appalachian Center for the Economy and the Environment, Lewisburg, WV, James M. Hecker, Trial Lawyers for Public Justice, Washington, DC, for Plaintiffs.

Heather A. Connolly, West Virginia Department of Environmental Protection, Charleton, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

JOHN T. COPENHAVER, JR., District Judge.

Pending is the motion of the plaintiffs for summary judgment and declaratory and injunctive relief, filed March 12, 2008. For the reasons that follow, the motion is granted.

I.

Surface coal mining operations in West Virginia can be said to fall in one of three categories: (1) abandoned mine lands which completed operations prior to the passage of the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. §§ 1201 through 1328; (2) active or completed operations, which were started or bond released since SMCRA's passage; and (3) bond forfeiture sites, where the permits of the mining companies have been revoked and bonds forfeited by the West Virginia Department of Environmental Protection ("WVDEP"). (WV AMD Study at 1, attached as Ex. 1 to M.S.J.). This case is a citizen suit brought under the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 through 1387, concerned with the discharge of acid mine drainage ("AMD") at sites in the third category, bond forfeitures. (Mem. in Supp. of M.S.J. at 2).

First to be determined here is whether the WVDEP is acting in contravention of the CWA by discharging pollutants without the appropriate permit. If the WVDEP is indeed in violation of the CWA, it must next be determined whether the Eleventh Amendment bars this action against defendant Randy C. Huffman, Secretary of the WVDEP ("Secretary"). If the former query is answered in the affirmative, and the latter in the negative, plaintiffs are entitled to judgment in their favor.

II.

The WVDEP revoked one surface mining permit of Harvey Energy Corp. in Fayette County, three surface mining permits of Royal Scott Minerals Inc. in Greenbrier County, and five surface mining permits of Triple A Coals, Inc. in Nicholas County and it forfeited the bonds posted by the three mine operators for those sites, all of which are located in the Southern District of West Virginia.¹ (Stip. ¶ 1 and Table A, attached as Ex. 4 to M.S.J.). The WVDEP, as the operator of the treatment systems for the bond forfeiture sites, treats discharges of water at each of those sites and monitors for "pollutants," as defined in 33 U.S.C. § 1362(6). (Id. ¶¶ 2, 5).

Prior to the bond forfeitures, WVDEP issued a West Virginia National Pollutant Discharge Elimination System ("WV/NPDES") permit under the CWA, 33 U.S.C. § 1342, to the three mine operators for discharges at each site. (Id. ¶ 6). The WVDEP, however, does not currently have a WV/NPDES permit for discharges at any of the sites. (Id. ¶ 7).

The WVDEP has issued hundreds of NPDES permits for discharges from active mining sites. (WV AMD Study at 2, attached as Ex. 1 to M.S.J.). Only one NPDES permit, however, has been issued by the WVDEP to itself for discharges from a bond forfeiture site. That site was formerly controlled by the DLM Coal Co., and the permit was issued as a consequence of litigation. (WV/NPDES Permit No. WV0042056, attached as Ex. 2 to M.S.J.; Ellison Depo. at 113-114, attached as Ex. 3 to M.S.J.).

The WVDEP's obtainment of a permit has important consequences. "Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters." Piney Run Preservation Ass'n v. County Commissioners of Carroll County, Maryland, 523 F.3d 453, 456 (4th Cir. 2008) ("Piney Run II") (quoting S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004)). "An NPDES permit `defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger's obligations under the' [CWA]." Id. (quoting EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976)). Importantly here, limits set forth in an NPDES permit must be based on the best practicable pollution control technology, plus any limitations needed to meet state water quality standards. See 33 U.S.C. § 1311(b)(1)(A) and (C); 40 C.F.R. § 122.44(a)(1) and (d)(1). Explaining the difference between the standards, the Supreme Court stated:

the Act provides for two sets of water quality measures. "Effluent limitations" are promulgated by the EPA ["Environmental Protection Agency"] and restrict the quantities, rates, and concentrations of specified substances which are discharged from point sources. See §§ 1311, 1314. "[W]ater quality standards" are, in general, promulgated by the States and establish the desired condition of a waterway. See § 1313. These standards supplement effluent limitations "so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels." EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205, n. 12, 96 S.Ct. 2022, 2025, n. 12, 48 L.Ed.2d 578 (1976).

Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). Ken Ellison ("Ellison"), the designated WVDEP representative and Director of the Division of Land Restoration of the WVDEP, has indicated the WVDEP's position to be that it did "not take on the permittee's compliance duties." (Ellison Depo. at 48, attached as Ex. 3 to M.S.J.). Currently, WVDEP is only treating discharges from the three sites to technology-based standards, not the more stringent water-quality based standards. (Id. at 28-32, 51-52; Mem. in Supp. M.S.J. at 4).

III.

Plaintiffs' claim is that of a CWA citizen bringing suit pursuant to 33 U.S.C. § 1365 for violation of 33 U.S.C. § 1311(a), which prohibits the discharge of pollutants in a manner that is inconsistent with 33 U.S.C. § 1342, or, in other words, without a NPDES permit.² (Compl.¶¶ 10-11). The plaintiffs' motion for summary judgment requests that the court declare the Secretary to be in violation of the CWA and order him to apply for and obtain WV/NPDES permits within six months of the date of this order, provide monthly status reports to plaintiffs until the permits are obtained, and notify plaintiffs and the court when the permits are obtained. (M.S.J.). Plaintiffs also seek an award of costs and fees. (Compl. at 5).

On May 16, 2008, plaintiffs and the Secretary filed a joint motion to amend the scheduling order in which they stated that "[t]he parties agree that there are no contested fact issues to be tried in this case, and that the contested legal issues may be decided on the briefs, stipulation, and exhibits filed by the parties concerning Plaintiffs' pending motion for summary judgment." (Jt. Mot. to Am. Sched. Order at 1). Earlier, however, in his April 14, 2008 response to the pending motion for summary judgment, the Secretary stated that there were genuine issues of material fact. (Resp. to M.S.J. at 5). The Secretary did not, however, cite any issues of fact specifically and attached only one exhibit to his response which did not create a factual dispute. Instead, the Secretary's response focused entirely on issues of law. Accordingly, the court accepts the joint assertion of the parties that there are no contested issues of fact. A party is, of course, entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

IV.

"Congress enacted the CWA `to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" Piney Run II, 523 F.3d at 455 (quoting 33 U.S.C. § 1251). The CWA contains a general prohibition on the "discharge of any pollutant," except in compliance with a state or federal version of the NPDES permit program. 33 U.S.C. §§ 1311(a), 1342; Piney Run II, 523 F.3d at 455 (quoting Miccosukee Tribe, 541 U.S. at 102, 124 S.Ct. 1537); Kentuckians for Commonwealth Inc. v. Rivenburgh, 317 F.3d 425, 447 (4th Cir.2003). It is well recognized that "[t]he centerpiece of the CWA is the NPDES permitting program." Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 990 (D.C.Cir.1997); Dubois v. United States Dep't of Agric., 102 F.3d 1273, 1294 (1st Cir.1996) ("The most important component of the . . . [CWA] is the requirement that an NPDES permit be obtained."). Section 402 of the CWA, "establishes the NPDES permitting regime, and describes two types of permitting systems: state permit programs that must satisfy federal requirements and be approved by the EPA, and a federal program administered by the EPA." Arkansas, 503 U.S. at 102, 112 S.Ct. 1046; see 33 U.S.C. § 1342. The EPA granted West Virginia the authority to administer its own NPDES program, and permits in West Virginia are issued by the WVDEP. Ohio Valley Environmental Coalition, Inc. v. Apogee Coal Co., LLC, 531 F.Supp.2d 747, 753 (S.D.W.Va.2008) (citing W. Va.Code § 22-11-4(a)(1); 47 C.S.R. § 10-3 (2005)).

The CWA citizen suit provision affords "any citizen" the right to "commence a civil action on his own behalf—(1) against any person (including (i) the United States and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A)...