United States District Court, S.D. West Virginia, Charleston Division
OHIO VALLEY ENVIRONMENTAL COALITION, WEST VIRGINIA HIGHLANDS CONSERVANCY, WEST VIRGINIA RIVERS COALITION, and SIERRA CLUB, Plaintiffs,
FOAL COAL COMPANY, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE
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.
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
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.
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
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
. . .
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.
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.
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.
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.
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.
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