ROBERT C. CHAMBERS, Chief Judge.
Pending are cross-motions for partial summary judgment filed by Plaintiffs Ohio Valley Environmental Coalition, Inc., West Virginia Highlands Conservancy, Inc., Coal River Mountain Watch, and Sierra Club ("Plaintiffs"), ECF No. 55, and Defendant Marfork Coal Co., Inc. ("Marfork"), ECF No. 50. For the reasons stated below, the Court
Plaintiffs filed this case pursuant to the citizen suit provisions of the Federal Water Pollution Control Act ("Clean Water Act" or "CWA") and the Surface Mining Control and Reclamation Act ("SMCRA"). Plaintiffs allege that Marfork violated these statutes by discharging excessive amounts of selenium into the waters of West Virginia. Before proceeding to the parties' arguments, the Court will first discuss the relevant regulatory framework and then the factual background of this case.
The primary goal of the Clean Water Act 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 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").
Coal mines are also subject to regulation under the Surface Mining Control and Reclamation Act and the West Virginia Surface Coal Mining and Reclamation Act ("WVSCMRA"). These statutes prohibit any person from engaging in or carrying out surface coal mining operations without first obtaining a permit. 30 U.S.C. § 1256. Regulations passed pursuant to WVSCMRA require permittees to comply with the terms and conditions of a permit 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. § 38-2-14.5b. These limitations are guided by the NPDES permit. Water quality standards establish conditions which must be maintained to preserve designated uses of the state's waters; such uses include public health and the protection of animal, aquatic, and plant life. 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.
Marfork owns and operates the Brushy Fork Slurry Impoundment and the adjacent Beetree Surface Mine in Raleigh County, West Virginia. The impoundment is subject to WV/NPDES Permit Number WV1015044
Both the Impoundment Permit and the Beetree Permit require Marfork to limit and monitor the contents and characteristics of its discharges. The Impoundment Permit sets effluent discharge limitations for specific pollutants: iron, manganese, and aluminum. Permit WV1015044 at 2, ECF No. 55-1. The Impoundment Permit does not identify selenium as one of the discharge constituents to be specifically limited and monitored. Id. The Beetree Permit, which allows Marfork to discharge treated water and runoff into Brushy Fork and other streams, does require Marfork to measure and report the concentration of selenium in its discharge. Permit WV1021788 at 2-17, ECF No. 55-2. While the Beetree Permit lists selenium among the specific effluents in the permit, it does not set a specific discharge limitation; only monitoring and reporting is required.
Both permits incorporate the following provision:
W. Va.Code R. § 47-30-5.1.f. West Virginia's WV/NPDES rules for coal mining facilities require this provision to be "incorporated into the WV/NPDES permits either expressly or by reference." Id. § 47-30-5. West Virginia's water quality standards promulgated for the protection of aquatic life impose limitations on selenium: an acute limitation of 20 parts per billion ("ppb") and a chronic limitation of 5 ppb. Id. § 47-2, App'x E, tbl. 1. The acute limitation is defined as a "one-hour average concentration not to be exceeded more than once every three years on the average." Id. The chronic limitation is a "four-day average concentration not to be exceeded more than once every three years on the average." Id. n. 2.
Plaintiffs assert three claims against Marfork, all based upon its alleged discharge of selenium into Brushy Fork. First, Plaintiffs allege that Marfork is in violation of the CWA and the Impoundment Permit because its discharges from Outfall 001 caused violations of the chronic and acute water quality standards for selenium in Brushy Fork. Second, Plaintiffs allege that Marfork is in violation of the SMCRA and its WV/SCMRA permit for the same reason. Third, Plaintiffs claim that Marfork is in violation of the SMCRA and its WV/SCMRA permit by failing to install, operate, and maintain adequate treatment facilities as necessary to prevent discharges that violate state or federal law.
The parties dispute three primary issues, which the Court will address in turn after setting forth the standard for summary judgment. First, the Court will determine whether Plaintiffs have constitutional standing to sue. Second, the Court will discuss the statutory CWA "permit shields." Third, the Court will identify the terms and conditions of Marfork's permit and will determine whether Plaintiffs have satisfied their burden of proof of CWA and SMCRA violations.
To obtain summary judgment, the moving party must 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(a). In considering a motion for summary judgment, the Court will not "weigh the evidence and determine the truth of the matter[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some "concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]" Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere "scintilla of evidence" in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
In order to bring any action in federal court, a plaintiff must have standing — that is, a plaintiff must have a sufficient personal stake in the outcome of the matter being litigated to make it justiciable under Article III of the Constitution. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. ("Gaston Copper I"), 204 F.3d 149, 153 (4th Cir.2000) (citation omitted); see also U.S. Const. art. III (restricting federal courts to adjudicating "cases" and "controversies"). In order to satisfy the minimum constitutional requirements for standing, a plaintiff must demonstrate:
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
When the plaintiff in question is an organization, it "has standing to sue on behalf of its members when `(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.'" Am. Canoe Ass'n, Inc. v. Murphy Farms, Inc., 326 F.3d 505, 517 (4th Cir.2003) (quoting Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). Among the injuries that may be addressed by a federal court are those to "an individual's aesthetic or recreational interests." Gaston Copper I, 204 F.3d at 154 (citing Laidlaw, 528 U.S. at 184, 120 S.Ct. 693). This is of particular relevance to environmental cases. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 734-36, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). In environmental
Plaintiffs seek to establish standing through two individual declarants: Lisa Snodgrass and Robert Goodwin. Plaintiffs argue that they have standing based on their use of Little Marsh Fork, downstream from Brushy Fork. To determine whether these declarants have suffered an injury in fact, the Court must first decide whether Little Marsh Fork is affected by Marfork's discharge into Brushy Fork. Second, the Court will analyze the nature of the declarants' alleged injuries. Third, the Court will decide whether the organizational Plaintiffs have satisfied the standing requirements.
Marfork argues that Plaintiffs cannot establish an injury in fact because the areas used by their members are too far removed from the area allegedly contaminated by the discharge from the impoundment. Outfall 001 of the impoundment discharges directly into Brushy Fork, which empties into Little Marsh Fork. Marfork argues that the only "affected area" of its discharge is Brushy Fork — the immediate receiving stream for Outfall 001. Marfork argues that Brushy Fork is located entirely on private property and because Plaintiffs do not have access to Brushy Fork, they cannot be injured by the discharge of selenium into it. The Court must therefore determine whether Little Marsh Fork is within the zone of impact of Defendant's activities before analyzing Plaintiffs' specific claims of standing.
As this Court explained in Ohio Valley Environmental Coalition, Inc. v. Maple Coal Company, 808 F.Supp.2d 868 (S.D.W.Va.2011), standing does not require a court to determine the merits of the environmental violations alleged. 808 F.Supp.2d at 882 (citing Laidlaw, 528 U.S. at 181, 120 S.Ct. 693). Rather, standing requires a demonstration that if the allegations of the CWA violations are true, the impacts of the alleged violations are felt in an area with which the plaintiffs have "a direct nexus." Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. (Gaston Copper II,) 629 F.3d 387, 395 (4th Cir. 2011). Plaintiffs may rely on "circumstantial evidence such as proximity to polluting sources, predictions of discharge influence, and past pollution to prove both injury in fact and traceability." Gaston Copper I, 204 F.3d at 163. To require more would contravene the otherwise "straightforward Clean Water Act issue of whether [the defendant] has violated its permit limitations[,]" thereby "throw[ing] federal legislative efforts to control water pollution into a time warp by judicially reinstating the previous statutory regime in the form of escalated standing requirements." Id. at 163-64.
The Court
Second, Little Marsh Fork was within the state's contemplated impact area during Marfork's permitting process. Pursuant to federal regulations, WVDEP performed an "assessment of the probable cumulative hydrologic impacts (CHIA) of the proposed operation and all anticipated mining upon surface- and ground-water systems in the cumulative impact area." 30 C.F.R. § 780.21(g)(1). The CHIA prepared for Marfork's Brushy Fork Slurry Impoundment analyzed the Little Marsh Fork watershed, sampling surface water sites in both Little Marsh Fork and Brushy Fork. CHIA 1-2, ECF No. 62-6. WVDEP's decision to analyze Little Marsh Fork as part of Marfork's permitting process is circumstantial evidence of predictions of discharge influence, which supports the conclusion that Little Marsh Fork is within the affected area.
Finally, Plaintiffs have produced evidence that selenium has been detected in Little Marsh Fork and Marsh Fork, downstream of Brushy Fork. Analyses of water samples taken on consecutive days in October and December 2012 from Little Marsh Fork indicated the presence of selenium. Betcher Decl. ¶ 25, App'x F & G, ECF No. 55-9. This evidence provides additional support for the conclusion that Little Marsh Fork is within the affected area of Marfork's alleged violations. See Crown Cent. Petroleum Corp., 95 F.3d at 362 (stating that plaintiffs may satisfy the "fairly traceable" element of standing in part by producing "water samples showing the presence of a pollutant of the type discharged by the defendant upstream").
Having concluded that Little Marsh Fork is an affected area, the Court will now determine whether a "direct nexus exist[s] between the plaintiffs and the area of environmental impairment." Gaston Copper II, 629 F.3d at 395. Specifically, the Court must evaluate whether the individual declarants have demonstrated an actual injury. Ms. Snodgrass has a lifelong connection to the affected area, because she grew up along Little Marsh Fork. Snodgrass Decl. ¶ 4, ECF No. 55-10.
Plaintiffs' second declarant, Robert Goodwin, is a resident of Kanawha County. Goodwin Decl. ¶ 2, ECF No. 55-11. He is an avid canoer and hiker. He enjoys wading in streams and looking for aquatic life. Id. ¶ 5. He testified that on several occasions, he has sat beneath a bridge near the confluence of the Little Marsh Fork and Marsh Fork, id. ¶ 10, and intends to do so in the future, id. ¶ 14. He also canoes on Marsh Fork and intends to do so again. Mr. Goodwin testified that his enjoyment of Little Marsh Fork is diminished when he thinks about the presence of selenium and its potential effect on fish. Id. ¶ 13. Mr. Goodwin has demonstrated a connection to the affected area. As the Court concluded with regard to Ms. Snodgrass's activities, the Court finds that Mr. Goodwin's aesthetic and recreational uses have been harmed, such that he has established an imminent and actual injury.
The Court rejects Marfork's argument that Plaintiffs must show a violation of water quality standards to demonstrate an injury in fact sufficient to confer standing. This argument is as unavailing now as it was when raised by defendants in other cases, including Maple Coal. As the Fourth Circuit explained in Gaston Copper I and reiterated in Gaston Copper II, plaintiffs need not "demonstrate that the chemical content of the waterway was affected by the facility, or that there was other negative change in the ecosystem of the water." Gaston Copper II, 629 F.3d at 395 (citation omitted). Consequently, Plaintiffs' alleged harms to their recreational and aesthetic interests are sufficient to confer constitutional standing.
The Court concludes that the declarants, Ms. Snodgrass and Mr. Goodwin, have demonstrated a concrete and particularized injury in fact that is fairly traceable to Marfork's activities and is likely to be redressed by a favorable decision in this case. Therefore, these declarants' injuries also confer standing on those organizations of which they are members. See Am. Canoe Ass'n, Inc., 326 F.3d at 517. Here, Plaintiffs have submitted evidence that Ms. Snodgrass and Mr. Goodwin are members of Coal River Mountain Watch
There is no evidence, however, that either Ms. Snodgrass or Mr. Goodwin is a member of any of the three remaining plaintiff organizations. See Goodwin Dep. 29, ECF No. 55-13 ("I think [CRMW], I believe, is the only [environmental organization] that I would consider myself an official member of."). Plaintiffs have produced no other declarants to support standing against Marfork. Accordingly, the Court
Marfork argues that the "permit shield" provisions of the CWA, and, more recently, West Virginia's Water Pollution Control Act, protect it from liability. In this Part, the Court will discuss the terms and scope of the federal and state permit shields.
Section 402(k) of the CWA, known as the "permit shield," states:
33 U.S.C. § 1342(k).
In E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977), the Supreme Court explained that the purpose of this section is "to insulate permit holders from changes in various regulations during the period of a permit and to relieve them of having to litigate in an enforcement action the question whether their permits are sufficiently strict." 430 U.S. at 138 n. 28, 97 S.Ct. 965. The Fourth Circuit has described how this language operates: "if a permit holder discharges pollutants precisely in accordance with the terms of its permit, the permit will `shield' its holder from CWA liability." Piney Run Pres. Ass'n v. Cnty. Comm'rs of Carroll Cnty., Md., 268 F.3d 255, 266 (4th Cir.2001). Piney Run was a CWA citizen suit alleging that a county's sewage treatment plant was in violation of its NPDES permit, which was issued under Maryland's approved program. At the time, Maryland had promulgated water quality standards for the waters within its borders, as the CWA required. A Maryland state regulation provided that "[i]n order to grant a permit or a permit modification, the [Maryland Department of the Environment] must determine that the discharger will not violate these water quality
To determine the scope of the permit shield's protection, the court applied the familiar Chevron analysis. Id. at 266-67. After finding the statutory language ambiguous as to the scope of the permit protection, the Fourth Circuit deferred to the reasonable interpretation of the Environmental Protection Agency. In evaluating the reasonableness of the interpretation, the Court looked to the structure and purpose of the CWA. It observed that the CWA was a fundamental change in the regulation of water pollution in that it "shifted the focus away from water quality standards to direct limitations on the discharge of pollutants." Id. at 265 (quoting Gaston Copper I, 204 F.3d at 151). The court explained that the CWA establishes a default regime of strict liability. An entity discharging a pollutant violates the CWA unless the discharge fits within a limited exception, the primary exception being the NPDES permitting system. Id. After a permit applicant fully discloses the nature of its effluent discharges to the permitting authority, the authority analyzes the potential environmental risk and "places limits on those pollutants that ... it `reasonably anticipates' could damage the environmental integrity of the affected waterway." Id. at 268. Therefore, the court reasoned, certain discharges are implicitly authorized if they were disclosed and within the reasonable contemplation of the permitting authority, because otherwise a permittee would violate the terms of its NPDES permit if it discharged "an unlisted pollutant even at an infinitesimal amount." Id. at 271.
The court concluded that CWA's permit shield protects a permit holder that: (1) complies with all conditions of its permit; (2) complies with the express discharge restrictions set forth on the face of the permit; and (3) discharges pollutants that, although not specified in its permit, were disclosed to the permitting authority and within its reasonable contemplation. Id. at 269.
In March 2012, the West Virginia Legislature enacted Senate Bill 615 to create a permit shield of its own. The preamble of S.B. 615 declares:
Senate Bill No. 615, Ex. 10, ECF No. 51-3 (emphasis added). The statute provides in relevant part:
W. Va.Code § 22-11-6(2). The operative language here — "compliance with a permit... shall be deemed compliance for purposes of [the state law and the CWA]" — essentially tracks the language of the federal permit shield. Compare W. Va.Code § 22-11-6(2), with 33 U.S.C. § 1342(k).
It appears that no state court has had an opportunity to address this new provision, which became effective March 10, 2012. When required to determine the meaning of a state statute in the absence of a state judicial opinion, federal courts must determine how the state's highest court would rule.
The Supreme Court of Appeals of West Virginia has adopted the two-part test set forth by the United States Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Sniffin v. Cline, 193 W.Va. 370, 456 S.E.2d 451, 455 (1995). That standard requires the Court to first ask "whether the Legislature has `directly spoken to the precise [legal] question at issue.'" Id. (quoting Chevron, 467 U.S. at 842, 104 S.Ct. 2778). If the Legislature's intent is clear, "that is the end of the matter," id. (quoting Chevron, 467 U.S. at 842, 104 S.Ct. 2778), and the Court must give effect to the expressed intent of the Legislature. If the statute is ambiguous, the second step of Chevron requires the Court to "defer to the agency's interpretation of its governing statute and regulations, as long as (1) the agency has promulgated that interpretation pursuant to a notice-and-comment rulemaking or a formal adjudication, and (2) the agency's interpretation is reasonable." Piney Run, 268 F.3d at 267 (citing Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) & Chevron, 467 U.S. at 843, 104 S.Ct. 2778). The Court will therefore follow the approach used by the Fourth Circuit in Piney Run and apply these standards to determine the scope of the state permit shield.
The language of W. Va.Code § 22-11-6(2) is nearly identical to the language of the federal statute, which the Fourth Circuit found ambiguous in Piney Run. Like the federal permit shield, the state statute specifies that "compliance with a permit issued pursuant to this article shall be deemed compliance for purposes of both this article and sections 301, 302, 306,
W. Va.Code § 22-11-6 (emphasis added). While a bill's preamble may provide some insight into the intention of the Legislature, see Syl. Pt. 7, Slack v. Jacob, 8 W.Va. 612, 613 (1875) ("The preamble may be consulted in some cases to ascertain the intentions of the Legislature."), the preamble of S.B. 615 does nothing to clarify the inconsistency within the text of the statute itself. First, the text of the statute does not read "compliance with effluent limits;" rather, it says "compliance with a permit." Second, the text of the statute's internal inconsistency remains: in order to receive the permit shield's protection, a permittee must comply with a permit, "notwithstanding any ... permit condition to the contrary." The Court concludes that the permit shield language here is ambiguous as to the scope of the shield's protection: must a permittee comply with all the permit conditions or not?
The Court must then apply Chevron's second step. WVDEP has promulgated, pursuant to a formal notice-and-comment rulemaking, an interpretive rule regarding the state permit shield. That rule was adopted by the agency and approved by the Legislature, and became effective July 1, 2013. XXX W. Va. Reg. 774 (May 10, 2013). This rule contains an amendment to § 47-30-5.1.f. The rule retains the operative language requiring compliance with water quality standards, but now includes the following:
Id. This rule only adds ambiguity and by its terms, has no new effect. It is merely a reference to a pre-existing rule, § 47-30-3.4.a, which already provided a permit shield protection identical to the federal shield. The amended rule does not address whether WVDEP interprets the statute as requiring compliance with effluent limits only, or whether a permit holder is expected to comply with the rule and permit condition concerning water quality standards, even for pollutants that are not embodied in a specific effluent limitation. Thus, unlike the EPA adjudication cited in Piney Run, this agency interpretation provides the Court no guidance as to the proper construction of S.B. 615, because the interpretation itself is ambiguous.
Although not entitled to Chevron deference, WVDEP has issued statements in official correspondence that further explain the agency's views regarding the state permit shield. In these statements, however, the agency has asserted two contradictory
The federal permit shield, as explained by the Fourth Circuit in Piney Run, requires compliance with all conditions of a permit. West Virginia has chosen to include as a condition of all WV/NPDES permits for mining operations the requirement that they must not cause a violation of water quality standards. If S.B. 615 is truly co-extensive with the federal permit shield, then permit holders are not protected from suit if they are violating this condition. In Piney Run, by contrast, Maryland did not have a rule similar to West Virginia's here. The permit at issue in that case did not have a separate condition requiring a permit holder not to cause a violation of water quality standards for temperature. Therefore, the defendant was not in violation of its permit where it discharged heat that actually did cause violation of those water quality standards, because that pollutant was disclosed to the permitting authority and within its reasonable contemplation. According to WVDEP's first interpretation, therefore, the state permit shield is entirely co-extensive with the federal shield, in which case Marfork would not be shielded from violating its permit by causing a violation of water quality standards.
WVDEP has also stated a contrary interpretation. In March 2012, Plaintiffs' counsel here filed a complaint with WVDEP against another coal company on the same grounds as the suit against Marfork: counsel alleged that the company, Fola Coal Company ("Fola"), had violated its permit by causing a violation of the water quality standard for selenium, and asked that WVDEP take enforcement action. In response, WVDEP wrote that the state permit shield "has the effect of preventing the State from taking enforcement action against a permit holder for violation of water quality standards that are not embodied in effluent limitations that are expressed in a NPDES permit." Letter from Thomas L. Clarke, WVDEP, to Derek O. Teaney, Esq. (June 5, 2012), ECF No. 69-5. However, even though WVDEP disclaimed authority to take enforcement action, it did assure counsel that "the State will be taking administrative action pursuant to the [West Virginia CWA] to compel Fola to address selenium at the locations in question." Id. In its "Order for Compliance," WVDEP informed Fola that laboratory samples indicated a violation of the water quality standard for selenium in Fola's discharge streams. Id. This action demonstrates that WVDEP believed it
In summary, WVDEP advances two conflicting interpretations of the state permit shield. Under the first, it is entirely co-extensive with the federal permit shield, affording protection to permit holders that comply with all the permit conditions. Under the second, the permit shield is read as eliminating a specific condition of all WV/NPDES permits for coal operations. The Court does not find this second interpretation reasonable.
The Court believes that the intent of the Legislature was, as it declared, to clarify that a permit holder is protected from enforcement action if it complies with the effluent limits of its permit. "Effluent limits" need not refer only to the table of specific limitations in Section A.2 of the permit; an "effluent limit" is any restriction placed on a permit holder's discharge. See 33 U.S.C. § 1365(f)(6) ("`[E]ffluent standard or limitation ...' means a permit or condition thereof...."). Thus, the state permit shield protects permittees from enforcement to the same extent as the protections offered by the federal permit shield. Because the scope of the shield is co-extensive, permittees must comply with all conditions of a permit, including explicit and implicit discharge authorizations, and all reporting and monitoring requirements. The Court must
To determine whether Marfork is in compliance, the Court must analyze the scope of its WV/NPDES permit. That is, does Marfork's permit allow the discharge of selenium, either explicitly, or implicitly
The starting point, of course, is the text of the permit itself. Section A of Permit WV1015044 expressly limits the discharge of certain pollutants, like iron, manganese, and aluminum. ECF No. 55-1. It does not expressly limit selenium. Assuming selenium was adequately disclosed as a discharge and within the reasonable contemplation of WVDEP, Marfork would not be in violation of the CWA, if this were the only relevant section of the permit. Section C of the permit, however, incorporates by reference W. Va.Code R. § 47-30-5.1. That rule provides, "[t]he discharge or 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 47 C.S.R. 2."
The Court interprets the terms of an NPDES permit using the principles of contract interpretation. Piney Run, 268 F.3d at 269 (citing Nw. Envtl. Advocates v. Portland, 56 F.3d 979, 982 (9th Cir.1995)). Accordingly, the Court must first determine whether the language is ambiguous. Id. at 269-70. "If the language is plain and capable of legal construction, the language alone must determine the permit's meaning." Id. at 270 (quoting FDIC v. Prince George Corp., 58 F.3d 1041, 1046 (4th Cir.1995) (quotation marks omitted)). If the language is ambiguous, however, then the Court must "look to extrinsic evidence to determine the correct understanding of the permit." Id. (citing Nw. Envtl. Advocates, 56 F.3d at 983-84). The Court concludes that the operative language here — "[t]he discharge or 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 47CSR2" — is not ambiguous.
Marfork urges the Court to find ambiguity in the phrase "applicable water quality standards," arguing that this language refers to only those discharges WVDEP deems applicable to a permit holder as evidenced by the specified effluent limitations. The Court disagrees. The phrase "applicable water standards" in Section 47-30-5.1.f refers to the standards applicable to a particular water body and its designated use. West Virginia has designated certain uses for the waters in the state and promulgated standards specific to each designated use. W. Va.Code § 47-2.a App'x E tbl. 1. Water quality standards are thus applicable to a particular use, not to a particular discharger. See Monongahela Power Co. v. Chief, Office of Water Res., Div. of Envtl. Prot., 211 W.Va. 619, 567 S.E.2d 629, 633 (2002) ("A water segment found not to be within its applicable water quality standard for its designated
Because the provision at issue is not ambiguous, it must be given its plain meaning. The plain language of the provision is clear: "[t]he discharge or 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 47CSR2." Thus, if a permit holder does cause a violation of the water quality standards applicable to the body of water into which it discharges pollutants, then the permit holder has violated the terms of its permit. The permit shield would not protect such a permittee from liability, because the shield only applies to a permit holder who complies with all the conditions of its permit.
Even if this provision were ambiguous, the Court disagrees with the interpretation advanced by Marfork. Examining the extrinsic evidence of this provision's meaning, in light of the requirements and purpose of the CWA, persuades the Court that the water quality provision was intended to require permit holders to not cause a violation of water quality standards — a requirement that is separate and distinct from specific effluent limitations set forth in the schedule in Section A.2 of the permit. The CWA requires that "every permit contain (1) effluent limitations that reflect the pollution reduction achievable by using technologically practicable controls and (2) any more stringent pollutant release limitations necessary for the waterway receiving the pollutant to meet `water quality standards.'" Piney Run, 268 F.3d at 265 (quoting Am. Paper Inst. v. U.S. Envtl. Prot. Agency, 996 F.2d 346, 349 (D.C.Cir.1993) (citing 33 U.S.C. § 1311(b)(1)(C))). Importantly, the CWA requires authorities to include "any more stringent limitation, including those necessary to meet water quality standards ... established pursuant to any State law or regulations." 33 U.S.C. § 1311(b)(1)(C); see also 33 U.S.C. § 1313(e)(3)(A). To be approved to operate its own NPDES program, a state program must include the authority to issue permits which "apply, and insure compliance with, any applicable requirements of sections 1311 [effluent limitations], 1312 [water quality related effluent limitations], 1316 [national standards of performance], and 1343 [ocean discharge criteria]." 33 U.S.C. § 1342(b)(1)(A).
West Virginia's Water Pollution Control Act is codified at W. Va.Code § 22-11-1 et seq. This Act created the regulatory framework through which the State administers its approved NPDES program. In 1984, West Virginia consolidated the State's surface mining program and water pollution control program for coal mines and related entities; that is, it combined the State's NPDES and SMCRA programs. Letter from Willis Hartig, Jr., Dir., Dep't of Natural Res., to A. James Manchin, Sec. of State (Oct. 18, 1984), ECF No. 93-4. As part of this restructuring,
Marfork argues that this discrepancy is an unintentional oversight and that the Legislature and WVDEP (and its predecessor agencies) never intended to treat the coal industry any differently from other industries. The Court reviewed the available legislative history of these NPDES rules. While the Court could not identify the exact origin of the rules applicable to coal facilities,
WVDEP and/or its predecessor agency, the Department of Energy, promulgated rule § 47-30-5.1.f requiring compliance with water quality standards for coal mining operations. The state agency took the affirmative action to promulgate this rule, and the West Virginia Legislature also acted affirmatively to adopt it. WVDEP has also complied with the rule's directive that it be made a permit condition. This rule cannot now be interpreted such that it has no meaning. Marfork essentially argues that the specific effluent limitations trump the incorporated water quality standard provision. According to Marfork, if WVDEP reviewed an application which truthfully disclosed the presence of selenium in its discharge and chose not to establish specific limitations for selenium, then the permit holder is protected by the permit shield. The problem with this interpretation is that it effectively nullifies the water quality standard provision.
Instead, the Court believes that this provision is intended as a backstop — a minimum level of compliance required of permit holders. This reading relies on its unambiguous text and places the provision in harmony with the CWA. As discussed supra, the CWA requires state programs to include such limitations as necessary to comply with the state's water quality standards. Rule § 47-30-5.1.f is precisely that: a permit limitation to ensure that a permit holder does not cause a violation of water quality standards. Under West Virginia's approved NPDES program, therefore, WVDEP evaluates a permit application and imposes specific effluent limitations for those pollutants that it estimates threaten water quality standards. In no event, however, may a permit holder discharge pollutants that cause a violation of water quality standards. This has the effect of protecting water quality standards
The Court's conclusion is in accord with "the statutory language, legislative history, and case law" explained by the Ninth Circuit in Northwest Environmental Advocates v. City of Portland, 56 F.3d 979 (9th Cir.1995). Northwest Environmental Advocates was a citizen suit alleging violations of a condition of an Oregon NPDES permit, which provided that "no wastes shall be discharged and no activities shall be conducted which will violate Water Quality Standards." 56 F.3d at 985. The Ninth Circuit rejected the defendant's argument that Congress intended to foreclose citizen suit enforcement of water quality standards that were not translated into specific effluent limitations. Id. at 986. The court concluded that the legislative history reflects "Congress'[s] intention to grant broad authority for citizen enforcement," id. at 987, and "[t]he fact that Congress created a new, simpler enforcement method based on effluent limitations does not mean that Congress intended to foreclose citizen suit enforcement of water quality standards," id. at 986. This Court agrees and finds that like Oregon, West Virginia intended to require permittees not to cause violation of water quality standards, and furthermore, citizen suits may be used to enforce this condition.
With the requirements of Marfork's permit established, the Court concludes that the permit shield defense is not available to Marfork. As discussed supra, the permit shield protects those who comply with all conditions of a permit. Marfork's permit includes the condition that its discharges not cause a violation of the water quality standard for selenium. The permit shield therefore explicitly authorizes the discharge of selenium only to the extent that it does not cause a violation of water quality standards.
The Court rejects Marfork's arguments that its discharges are protected by the permit shield. Marfork relies on the results reached in Piney Run and Atlantic States Legal Foundation v. Eastman Kodak Co., 12 F.3d 353 (2d Cir.1993), where circuit courts found that discharges were protected by the federal permit shield. In each of those citizen suits, the plaintiffs claimed violations of statutory and regulatory provisions purporting to make illegal the discharge of any pollutant not expressly allowed under the permit. Piney Run, 268 F.3d at 264 ("The [district] court ... concluded that the [defendant] was liable under the CWA because the discharge of heat was not expressly allowed by the permit."); Atlantic States, 12 F.3d at 357 ("[Plaintiff] argues first that the plain language of Section 301 of the CWA ... prohibits the discharge of any pollutants not expressly permitted."). Both courts concluded that the pollutants at issue, though not limited by any permit condition, were disclosed and contemplated within the permitting process, thus implicitly within the permit. Here, there is a regulation and a permit condition which expressly limit the amount of pollutants within the discharge.
Piney Run and Atlantic States both rest on a simple construction of the CWA's NPDES permitting process — that every
Moreover, the Court would reach the same conclusion even if Marfork's permit did not include a condition imposing water quality standard limitations. Marfork would have the Court apply the final step in the Piney Run analysis to the pollutant at issue here, but appears to contend that mere disclosure of the pollutant during the application process is enough to earn implicit discharge authorization. It is not; the Fourth Circuit set forth two requirements: (1) was selenium adequately disclosed to the agency during the permitting process; and (2) were the discharges of excessive selenium within the reasonable contemplation of the approved permit? See Piney Run, 268 F.3d at 271. Under WVDEP's 2007 Selenium Implementation Guidance, SMCRA and NPDES permits for activities determined "to have the potential to cause or contribute to selenium violations" must provide additional information to the agency, and, if "determined to have reasonable potential to violate selenium [water quality conditions]," the applicant's permit should contain operating requirements for the control of selenium with monitoring and selenium effluent limitations. Selenium Implementation Guidance, WVDEP Permit Handbook Section 32 (Nov. 13, 2007), ECF No. 51-2. Marfork's permit application indicated a water sample from Outfall 001 with a low amount of selenium. Application for WV/NPDES Permit, Mod 2 at 9 tbl. 2-IV-C, ECF No. 51-1 (indicating a maximum daily concentration of selenium of 2.09 µg/L). This amount was apparently insufficient to indicate a potential to cause or contribute to a selenium water quality condition violation, leading to the permit here with no monitoring or effluent limit for selenium.
Now that sampling has revealed persistently high levels of selenium above the water quality standard during the life of this permit, the Court finds that the amount of selenium actually discharged at Outfall 001 was not within the reasonable contemplation of the agency at the time of the permit, and consequently not within the permit shield. See Piney Run, 268 F.3d at 268.
Having determined the scope of the permit shields and the requirements of Marfork's permit, the Court now turns to the final issue: whether Plaintiffs have demonstrated that they are entitled to relief.
Under the CWA and the SMCRA, no citizen suit may be commenced
40 C.F.R. § 135.3(a); see also 30 C.F.R. § 700.13(e). Providing such notice "is a mandatory condition precedent to filing suit under [the CWA]." Gaston Copper II, 629 F.3d at 399 (citing Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989)). "Without adequate notice, the Court does not have subject matter jurisdiction to hear the case." Assateague Coastkeeper v. Alan & Kristin Hudson Farm, 727 F.Supp.2d 433, 437 (D.Md.2010) (citation omitted). The purpose of the notice is to "allow a potential defendant to identify its own violations and bring itself into compliance voluntarily," Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 488 (2d Cir.2001) (citations omitted), and to "allow[ ] Government agencies the opportunity to take responsibility to enforce the environmental regulations," Assateague Coastkeeper, 727 F.Supp.2d at 437 (citing Hallstrom, 493 U.S. at 29, 110 S.Ct. 304). Accordingly,
San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1155 (9th Cir.2002). "The sufficiency of the plaintiffs' notice letter must be assessed based on the facts that existed" at the time notice was provided. Gaston Copper II, 629 F.3d at 401.
Plaintiffs have plainly satisfied their statutory obligation to provide sixty days' notice. Plaintiffs sent notice to the required parties on March 9, 2012. Ex. 10, ECF No. 53-10. Marfork admits that the notice requirements of the CWA and the SMCRA are satisfied by the March 9, 2012 letter. Def.'s Resp. to Pls.' Request for Admissions ¶ 1, ECF No. 55-14.
A citizen suit under the CWA may be commenced "against any person ... who is alleged to be in violation of ... an effluent standard or limitation under this chapter or ... an order issued by the Administrator or a State with respect to such a standard or limitation." 33 U.S.C. § 1365(a)(1). Likewise, under the SMCRA, a person may commence a citizen suit "against any other person who is alleged to be in violation of any rule, regulation, order or permit issued pursuant to [the SMCRA]." 30 U.S.C. § 1270(a)(1). This is a jurisdictional requirement. The United States Supreme Court expounded on the "alleged to be in violation" requirement, finding that this requirement is satisfied and a federal district court has jurisdiction "when the citizen-plaintiffs make a good-faith allegation of continuous or intermittent violation." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64, 108 S.Ct. 376, 98 L.Ed.2d
Plaintiffs claim that three sets of data satisfy this requirement: (1) pre-complaint discharge monitoring reports ("DMRs"); (2) October 2012 measurements taken during the course of discovery; and (3) December 2012 measurements taken during discovery. First, Plaintiffs claim that Marfork's DMRs, submitted in compliance with the Beetree Permit, prove pre-complaint violations. The samples for this data came from a monitoring point in Brushy Fork. According to Plaintiffs, these DMRs show that the waters of Brushy Fork exceeded the water quality standards for selenium at least 30 times between December 2008 and May 2012.
Second, Plaintiffs tested samples over four consecutive days in October 2012, during a Rule 34 inspection.
Finally, both Plaintiffs and Defendant took samples on six consecutive days in December 2012. The samples were taken from three locations: at the Outfall 001 spillway, Brushy Fork, and Little Marsh Fork. Plaintiffs' data indicate a four-day average that violates the selenium water quality standard both at Outfall 001 and Brushy Fork. Little Marsh Fork did not exceed the water quality standard. Marfork's data also demonstrates a violation of the selenium standard from the Outfall 001 spillway. Its data for Brushy Fork, however, is in disagreement with Plaintiffs' data and indicates no violation. According to Plaintiffs, this result is best explained
The Court is satisfied that Plaintiffs have made good-faith allegations of continuous or intermittent violations sufficient to confer jurisdiction in this case. For the reasons discussed supra, the permit shield defense is unavailable to Marfork, based on Plaintiffs' allegations that it has violated a condition of its permit. In support of their motion for summary judgment, Plaintiffs have cited both pre- and post-complaint measurements that provide a basis for the allegation that Marfork is causing a violation of the selenium water quality standard. The Court therefore finds that Plaintiffs have satisfied CWA's jurisdictional requirement.
While Plaintiffs' evidence is sufficient to satisfy the jurisdictional requirement, it is not sufficient proof of a continuing violation to prevail on summary judgment. A number of material factual issues remain in dispute. First, the parties disagree as to whether the DMR data is sufficient to prove a pre-complaint violation of the selenium water quality standard. Defendant argues that the data is insufficient because the standard is defined as a "four-day average concentration," and Plaintiffs lack pre-complaint data from four consecutive days. Plaintiffs claim that measurements from four consecutive days are not required and that a violation can be proven using other calculations.
Because of these disputes of material fact, the Court
For the reasons discussed above, the Court
The Court
