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Ohio Valley Environmental Coalition v. Fola Coal Co., LLC

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

April 4, 2017

OHIO VALLEY ENVIRONMENTAL COALITION, WEST VIRGINIA HIGHLANDS CONSERVANCY, WEST VIRGINIA RIVERS COALITION, and SIERRA CLUB, Plaintiffs,
v.
FOAL COAL COMPANY, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS, CHIEF JUDGE

         In an order dated February 27, 2017, the Court granted Plaintiffs' Motion for Partial Summary Judgment. ECF No. 64. The Court reserved its discussion of the bases for that decision for a later opinion. The following Memorandum Opinion and Order sets forth the Court's reasons for granting Plaintiffs' Motion.

         I. BACKGROUND

         Plaintiffs Ohio Valley Environmental Coalition (“OVEC”), West Virginia Highlands Conservancy, West Virginia Rivers Coalition, and Sierra Club filed this case pursuant to the citizen suit provisions of the Federal Water Pollution Control Act (“Clean Water Act” or “CWA”), 33 U.S.C. §§ 1251-1388, and the Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. §§ 1201-1328. Compl., ECF No. 1. Before proceeding to the parties' arguments, the Court will first discuss the relevant regulatory framework and then the factual background of this case.

         A. Regulatory Framework

         The primary goal of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). To further this goal, the Act prohibits the “discharge of any pollutant by any person” unless a statutory exception applies; the primary exception is the procurement of a National Pollutant Discharge Elimination System (“NPDES”) permit. 33 U.S.C. §§ 1311(a), 1342. Under the NPDES, the U.S. Environmental Protection Agency (“EPA”) or an authorized state agency can issue a permit for the discharge of any pollutant, provided that the discharge complies with the conditions of the CWA. 33 U.S.C. § 1342. A state may receive approval to administer a state-run NPDES program under the authority of 33 U.S.C. § 1342(b). West Virginia received such approval, and its NPDES program is administered through the West Virginia Department of Environmental Protection (“WVDEP”). 47 Fed. Reg. 22363-01 (May 24, 1982). All West Virginia NPDES permits incorporate by reference West Virginia Code of State Rules § 47-30-5.1.f, which states that “discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by [West Virginia Code of State Rules § 47-2].” This is an enforceable permit condition. See, e.g., Ohio Valley Envtl. Coal., Inc. v. Fola Coal Co., LLC, 82 F.Supp.3d 673, 676 (S.D. W.Va. 2015), aff'd, 845 F.3d 133 (4th Cir. 2017).

         West Virginia's water quality standards include two narrative water quality criteria, which are designed to protect uses of West Virginia's streams related to aquatic life. Those criteria provide:

3.2. No sewage, industrial wastes or other wastes present in any of the waters of the state shall cause therein or materially contribute to any of the following conditions thereof:
. . .
3.2.e. Materials in concentrations which are harmful, hazardous or toxic to man, animal or aquatic life;
. . .
3.2.i. Any other condition, including radiological exposure, which adversely alters the integrity of the waters of the State including wetlands; no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.

W.Va. Code R. §§ 47-2-3.2.e-3.2.i.

         Coal mines are also subject to regulation under the SMCRA, which prohibits any person from engaging in or carrying out surface coal mining operations without first obtaining a permit from the Office of Surface Mining Reclamation and Enforcement (“OSMRE”) or an authorized state agency. 30 U.S.C. §§ 1211, 1256, 1257. A state may receive approval to administer a state-run surface mining permit program under the authority of 30 U.S.C. § 1253. In 1981, West Virginia received conditional approval of its state-run program, which is administered through the WVDEP pursuant to the West Virginia Surface Coal Mining and Reclamation Act (“WVSCMRA”). W.Va. Code §§ 22-3-1 to -33; 46 Fed. Reg. 5915-01 (Jan. 21, 1981). Regulations passed pursuant to the WVSCMRA require permittees to comply with the terms and conditions of their permits and all applicable performance standards. W.Va. Code R. § 38-2-3.33.c. One of these performance standards requires that mining discharges “shall not violate effluent limitations or cause a violation of applicable water quality standards.” Id. § 38-2-14.5.b. Another performance standard mandates that “[a]dequate facilities shall be installed, operated and maintained using the best technology currently available . . . to treat any water discharged from the permit area so that it complies with the requirements of subdivision 14.5.b of this subsection.” Id. § 38-2-14.5.c.

         B. Factual Background

         This controversy concerns discharges from a surface mine along the southern portion of the Leatherwood Creek watershed. The mine at issue, Fola's Monoc #2 Surface Mine, is located in Clay and Nicholas Counties, West Virginia and is situated on the other side of Leatherwood Creek from Fola's Surface Mine No.2 and near Fola's Surface Mine No. 4A and No. 6, all situated along Leatherwood Creek. Stipulation, ¶ 1, ECF No. 48. The latter three mines were the subject of prior litigation between Plaintiffs, save the West Virginia Rivers Coalition, and Fola. See Ohio Valley Envtl. Coal. v. Fola Coal Co., LLC, 120 F.Supp.3d 509 (S.D. W.Va. 2015). In that case this Court found that Fola violated it CWA and SMCRA permits for the No. 2 and No. 6 mines by discharging highly conductive water into two tributaries of Leatherwood Creek. Id. at 544-46.

         The Monoc #2 mine area contains two valley fills. Valley fill #1 partially fills Elick Hollow which drains into Pond #1 and then from Outlet 005 into Elick Hollow of Leatherwood Creek. Stipulation, ¶ 2. Valley fill #2 partially fills Shanty Branch which drains into Pond #2 and then from Outlet 011 into Shanty Branch of Leatherwood Creek. Id.

         Defendant's mining activities at the Monoc #2 mine are regulated under West Virginia Surface Mining Permit S6019-89 and WV/NPDES Permit WV1009290. Id. ¶¶ 4, 5. Both permits were transferred from Vandalia Resources to Fola in 2002 in the case of the former and 2004 for the latter. WVDEP reissued WV/NPDES Permit WV1009290 in April 2013. Id. ¶ 5. It limits discharges from Outlets 005 and 011. Id. Outlet 005 is the only point source in Elick Hollow and Outlet 011 is the only point source in Shanty Branch. Id.

         Before mining began, Fola reported that conductivity in Elick Hollow measured 35 µS/cm while conductivity in Shanty Branch measured 44 µS/cm. Id. ¶ 7. After mining began Fola measured levels of conductivity at Outlets 005 and 011 and at instream monitoring points in Leatherwood Creek. Id. ¶ 8. From 1992 to 2000 Fola measured highly conductive discharges of water from Outlets 005 and 011. Id. (showing discharges from Outlets 005 and 011 consistently ranging from 1000 µS/cm up to 4000 µS/cm.). Instream levels of conductivity in Leatherwood Creek downstream from Outlets 005 and 011 were also extremely high. Id. (showing instream conductivity consistently ranging from approximately 500 µS/cm to 3000 µS/cm with a general trend toward increasing ...


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