James P. Jones, United States District Judge.
In this environmental case, Southern Appalachian Mountain Stewards, Appalachian Voices, and The Sierra Club (collectively, "SAMS") have sued Red River Coal Company, Inc. ("Red River") for allegedly violating the Clean Water Act ("CWA"), the Surface Mining Control and Reclamation Act ("SMCRA"), and, in the alternative, the Resource Conservation and Recovery Act ("RCRA"), by discharging pollutants without permit authority. Red River has filed a related declaratory judgment action, Case No. 2:17CV00021, seeking a declaration that it is not violating the CWA and SMCRA, but the motions at bar have been filed solely in this case.
After conducting discovery, Red River has moved for summary judgment on SAMS's claims for relief. SAMS has moved for partial summary judgment on the issue of its standing. The motions have been fully briefed and orally argued and are ripe for decision. For the reasons that follow, I will grant SAMS's Motion for Partial Summary Judgment and will grant Red River's Motion for Summary Judgment.
The relevant facts are largely uncontested. The following facts taken from the summary judgment record are either undisputed or, where disputed, are presented in the light most favorable to the nonmoving party.
Red River operates a surface coal mine in this judicial district called the North Fox Gap Surface Mine ("Mine"). The Mine discharges pollutants into the South Fork Pound River, Rat Creek, Stillhouse Branch, and other unnamed tributaries. Some of the discharges are governed by effluent limits in the Mine's combined SMCRA and National Pollution Discharge Elimination System ("NPDES") permit. The discharges include substances that contribute to total dissolved solids ("TDS")
The area in which the Mine is located was mined extensively before SMCRA was enacted. That historic surface mining polluted the South Fork Pound River watershed by exposing toxic overburden material, which weathered and leached, causing acidic surface runoff and seepage. Discharges from pre-SMCRA underground mining have also polluted the watershed.
The federal Environmental Protection Agency ("EPA") delegated to Virginia's Department of Mines, Minerals, and Energy's Division of Mined Land Reclamation ("DMLR") the authority to issue NPDES permits under the CWA. DMLR also has the authority to issue SMCRA permits. In 1992, DMLR issued combined CWA and SMCRA permit numbered 1101401/0081401 ("Permit") for the Mine to conduct coal surface mining operations and to discharge pollutants under the CWA. The coal mining operation included remining of previously mined areas. The Permit requires Red River to reclaim the mining area according to current standards. DMLR encourages remining because it is a way to reclaim land that was mined before SMCRA's enactment that would not otherwise be reclaimed, aiding restoration of water quality.
A hollow or valley fill is made up of excess spoil or overburden material removed during mining. The fill is simply a place to put the excess material. Generally, channels are created to route water around the fill. Any water that gets into the fill drains into an underdrain at the bottom of the fill, which is designed to convey water (both percolating groundwater and water running through the fill). Discharges from nearby underground mines, also known as deep mines, may also flow into an underdrain. If there is a sedimentation pond in place, the water from the channels around the fill and the water collected in the underdrain are both conveyed into the sedimentation pond before being discharged into a water body. If there is no sedimentation pond, the water from the channels and the water from the underdrain may discharge directly into a body of water such as a creek or stream.
Red River deposited mine spoil into eight hollow fills, each of which has an underdrain. Until June 2014, Fill 1 and Underdrain 1 discharged into Pond 1 and through Outfall 001 into a tributary of the South Fork Pound River. Fill 2 and Underdrain 2, as well as Fill 3 and Underdrain 3, discharged into Pond 2 and through Outfall 002 into a different tributary of the South Fork Pound River. Fill 4 and Underdrain 4, as well as Fill 5 and Underdrain 5, discharged into Pond 5 and through Outfall 003 into another tributary of the South Fork Pound River. Fill 6 and Underdrain 6 discharged into Pond 9 and through Outfall 006 into a tributary of Rat Creek, which flows into the South Fork Pound River downstream from the other discharges.
On April 29, 2014, DMLR authorized Red River to remove Ponds 3 and 4. On June 11, 2014, DMLR authorized Red River to remove Ponds 1, 2, 5, 6, and 9. Underdrains 1, 2, 3, 4, 5, and 6 now all discharge directly into tributaries or streams without passing through any sedimentation pond or other treatment system.
On February 26, 2015, in a document titled Monitoring Point Detail Supplement, DMLR authorized the deletion of Outfall 003 from Red River's NPDES permit. In the same document, DMLR authorized the relocation of NPDES monitoring locations for Outfalls 001, 002, and 006. The monitoring points were previously below the fills but were moved to new locations up
Underdrains 1, 2, 3, 4, 5, and 6 continue to produce discharges high in TDS and with high conductivity, contributing to elevated levels in the streams into which the underdrains discharge. These elevated levels have harmed aquatic life in the streams, which the Virginia Department of Environmental Quality has designated as impaired based on macroinvertebrate bioassessments.
For purposes of its motion, Red River concedes that the underdrains are point sources under the CWA.
The Permit states that Red River "is hereby authorized to conduct coal surface mining and reclamation operations in Virginia and to discharge from a facility into receiving waters, aforementioned, in accordance with the requirements, conditions and limitations set forth in this permit, and all plans approved for this permit." Mem. Supp. Mot. Summ. J. Ex. 3 at 2, ECF No. 43-3. The Permit then goes on to list specific monitoring points and effluent limitations, along with requirements for sampling. The Permit does not expressly incorporate Virginia water quality standards or include a condition requiring compliance with state regulations.
Over the years following issuance of the permit, Red River submitted several applications for renewal of the Permit. As part of its renewal applications, Red River submitted monitoring data from the underdrains. The 2016 renewal of the Permit, which is currently in effect, states that Red River
Id. Ex. 7 at 2, ECF No. 43-7. The "facility listed below" is "North Fox Gap Surface Mine." Id. The "receiving waters" listed are "Rat Creek and South Fork Pound River." Id. Ex. 3 at 2, ECF No. 43-3.
The Permit requires Red River to monitor suspended solids, iron, manganese, TDS, conductivity, and acidity, among other things, at specified sites. The 2016 renewal of the Permit states,
Id. Ex. 7 at 3, ECF No. 43-7. The Permit then goes on to list specific effluent limitations at delineated outfalls. The Permit requires monitoring of TDS, but sets no numeric TDS limit, and Virginia has not adopted a numeric water quality standard for TDS.
In its initial permit application for the Mine, submitted in 1991, Red River provided sampling data from 1988 through 1991, which included testing for TDS and conductivity. Red River disclosed that "[a]s areas are disturbed during mining, suspended solids concentrations in runoff will increase." Id. Ex. 9 at 40, ECF No. 43-9. Red River stated,
Id. Red River represented that it would construct hollow fills and monitor discharges at the underdrains of the hollow fills, and the Permit required monitoring for TDS at the underdrains. Red River indicated in its permit application that preexisting discharges from the hollow fills and underdrains were of poor quality. However, it predicted that there would be a significant improvement in water quality once remining and reclamation had been completed.
A DMLR procedure document details the process for removal of sedimentation ponds following reclamation. According to the procedure, pond removal cannot begin until data shows there have been no problematic discharges or effluent limit exceedances for at least the past six months. The removal of the pond triggers a plan modification and eliminates the NPDES monitoring point from the Permit.
DMLR's organizational designee, Rodney Baker, testified in a deposition that DMLR would have considered the monitoring data submitted by Red River when deciding on the effluent limitations and other conditions of the permit. Baker testified that sedimentation ponds are intended to control runoff during mining operations and that once reclamation is complete, the ponds are no longer necessary and are expected to be removed. However, DMLR does not require removal of the ponds at a particular time or pressure a coal company to remove them promptly until after approval has been sought and granted. The ponds must be removed in order for the coal company's reclamation bond to be released.
According to Baker, under the Permit, Red River is "authorized to discharge from the facility, but they are required to specify those locations where the monitoring will be conducted and where the effluent limitations apply." Id. Ex. 2 at 57, ECF No. 43-2. He went on to clarify that "the permit does apply to the facility" but "they have to identify each location that has a discharge where monitoring effluent limitations are applicable and are required." Id. at 58. Baker testified that as of the date of his deposition, Red River had complied with the Permit.
In October 2015, DMLR issued a draft renewal of the Permit that omitted the
On March 15, 2016, Red River wrote to DMLR regarding the EPA's objections, stating that the objections were meritless. Red River explained its position as follows:
Id. Ex. 11 at 5, ECF No. 49-11. Red River "agree[d] that a point source discharge is subject to NPDES permitting regardless of whether mining is in progress or complete. But the determination of whether a point source discharge exists" is, according to Red River, a question of fact and law to be decided by DMLR. Id. at 6.
By letter dated April 8, 2016, DMLR responded to EPA's objection. DMLR wrote:
Id. Ex. 12 at 3, ECF No. 49-12. DMLR went on to state:
Id. The EPA did not lift or withdraw its objection, but when DMLR did not receive a response from the EPA for several months, it issued the renewed Permit on August 5, 2016. The EPA subsequently informed DMLR that it considered the renewed Permit to be invalid because the EPA's objection remained in place.
Virginia has both numeric and narrative water quality standards, and the narrative standards include a biological component that is assessed by, among other things, monitoring benthic macroinvertebrates. DMLR's internal guidance requires the agency to assess compliance with both kinds of standards. The DMLR inspector who approved removal of the ponds did not complete any written assessment of the biological monitoring data relevant to the narrative standards. Rather, he appears to have analyzed only compliance with the numeric water quality standards. Samples collected by Red River's contractor as part of aquatic life benthic monitoring showed that instream conductivity in the South Fork of the Pound River and Rat Creek increased between the fall of 2015 and the fall of 2016, after the ponds below the hollow fills were removed.
In November 2017 and May 2018, SAMS representatives conducted sampling at the points where the hollow fills discharge and at points downstream in the water bodies that receive discharges from the underdrains. This sampling data showed that TDS and conductivity levels were significantly higher than the pre-mining levels reported by Red River in its 1991 permit application. Despite these elevated levels, DMLR and Red River consider reclamation to be complete.
By letter dated September 20, 2016, the EPA informed Red River that it considered Red River to be violating the CWA by discharging pollutants from point sources into waters of the United States without permit authorization. The EPA stated that it had concluded that Red River was not complying with the Permit and that the Permit was not properly issued. The EPA invited Red River to negotiate a resolution with the agency before the EPA pursued a judicial or administrative enforcement action. Red River expressed a willingness to meet with EPA personnel, but the outcome of any negotiations is not apparent from the record before me.
Pursuant to Federal Rule of Civil Procedure 56(a), the court must grant summary judgment when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." To raise a genuine issue of material fact sufficient to avoid summary judgment, the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, "the court is required to view the facts and draw reasonable inferences
The substantive law applicable to the case determines which facts are material. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (citations omitted).
SAMS has moved for partial summary judgment to establish that it has standing to assert its claims. Section 505(a) of the CWA, 33 U.S.C. § 1365(a), authorizes citizens "to bring suit against any NPDES permit holder who has allegedly violated its permit." Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 152 (4th Cir. 2000) (en banc). SMCRA's citizen suit provision similarly allows "any person having an interest which is or may be adversely affected" to "commence a civil action on his own behalf to compel compliance with" SMCRA. 30 U.S.C. § 1270(a). Likewise, RCRA provides that any person can file suit "against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to" RCRA or "against any person ... including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1). In order to bring a citizen suit, a plaintiff must first comply with the notice requirements set forth in the CWA, SMCRA, and RCRA. See 33 U.S.C. § 1365(b) (requiring notice to be given at least 60 days before filing suit); 30 U.S.C.A. § 1270(b) (same); 42 U.S.C. § 6972(b)(2) (requiring notice to be given at least 90 days before filing suit).
"To establish Article III standing, [plaintiffs] must allege that (1) they suffered an actual or threatened injury that is concrete, particularized, and not conjectural; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision." Sierra Club v. State Water Control Bd., 898 F.3d 383, 400 (4th Cir. 2018).
Equity in Athletics, Inc. v. Dep't of Educ., 639 F.3d 91, 99 (4th Cir. 2011). "At least one plaintiff must demonstrate standing for each claim and form of requested relief." Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018).
In support of its motion, SAMS has filed declarations of organizational members Jessica Bier and Matthew Hepler. Bier lives on property that is adjacent to the Mine, and one of the Mine's hollow fills is located on her property. In her declaration, she explains in detail the ways in which she believes Red River's actions have interfered with her use and enjoyment
Red River does not contest that the plaintiffs have standing, either constitutional or statutory. Based on the averments in the declarations of Bier and Hepler, I find that the plaintiffs have satisfied the requirements of Article III standing as to each claim and form of relief sought, and they have asserted justiciable claims over which this court has jurisdiction. I further find that they have complied with all applicable statutory notice requirements. I will therefore grant SAMS's Motion for Partial Summary Judgment on Jurisdictional Issues.
The NPDES permit system is an exception to the CWA's general prohibition of the "discharge of any pollutant by any person." 33 U.S.C. § 1311(a). The CWA authorizes the EPA to issue NPDES permits that "define[], and facilitate [] compliance with, and enforcement of," a discharger's obligations to comply with the general water quality standards enumerated in the CWA. EPA v. Cal. ex rel. State Water Res. Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). The CWA authorizes EPA to delegate to states the authority to administrate their own NPDES programs to govern discharges within their borders, subject to EPA approval. See 33 U.S.C. § 1342(b); see also Ohio Valley Envtl. Coal. v. Miano, 66 F.Supp.2d 805, 807 (S.D.W. Va. 1998) ("The federal NPDES program allows a state to take control of the permitting process within its borders, so long as it complies with the federal standards set forth by the Clean Water Act and the regulations promulgated under that act."). Thus, a person or entity can lawfully discharge a pollutant from a point source into the waters of the United States if it has a permit authorizing it to do so. See Sierra Club v. Va. Elec. & Power Co., 903 F.3d 403, 407-08 (4th Cir. 2018).
"To establish a CWA violation, the plaintiffs must prove that (1) there has been a discharge; (2) of a pollutant; (3) into waters of the United States; (4) from a point source; (5) without a NPDES permit." Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1008 (11th Cir. 2004). The statute contains no causation requirement and "takes the water's point of view: water is indifferent about who initially polluted it so long as pollution continues to occur." W. Va. Highlands Conservancy, Inc. v. Huffman, 625 F.3d 159, 167 (4th Cir. 2010). The CWA's definition of "point source" is "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U.S.C. § 1362(14). A regulation promulgated under the CWA defines "discharge of a pollutant" as "[a]ny addition of any `pollutant' or combination of pollutants to `waters of the United States'
It is clear from the record that both DMLR and Red River believe that the underdrains that remain following sedimentation pond removal are not point sources and are not subject to regulation under the CWA. Red River has averred in the companion case pending in this court that "the alleged sources of pollution, underdrains and associated hollow fills, are not `point sources' and thus not subject to regulation under the CWA." Compl. ¶ 3, Red River Coal Co. v. Sierra Club, No. 2:17CV00021, 2017 WL 2837903 (W.D. Va. June 30, 2017), ECF No. 1; see also id. ¶ 28. Indeed, Red River has pleaded in this very case that "Plaintiffs' claims are barred, in whole or in part, because they relate to discharges from non-point sources." Answer to Am. Compl. 2, ECF No. 35. In denying Red River's Motion to Dismiss on the issue of whether SAMS had adequately pleaded that the discharges in question were from point sources, I held that "the record currently before me does not contain sufficient facts for me to rule as a matter of law that the underdrains in question are not point sources." Op. & Order 25, ECF No. 31.
Red River now purports to "concede[], for purposes of this motion only, that the discharges from the underdrains at the North Fox Gap Mine come from point sources as defined by the CWA." Mem. Supp. Mot. Summ. J. 22, ECF No. 43. Red River essentially asks me to assume without deciding that the underdrains are point sources, but to find as a matter of law that discharges from the underdrains are allowed under the Permit. SAMS is justifiably concerned about this conditional concession because it expects that upon conclusion of this litigation, Red River will again proceed according to its understanding that the underdrains are not point sources and do not require NPDES permit authorization. Red River's conditional concession also creates a significant problem with respect to SAMS's RCRA claim, which SAMS pleaded in the alternative to address these discharges if the court were to conclude that the underdrains are not point sources subject to CWA regulation. By "conceding" a fact that has the potential to subject it to liability under the CWA, Red River simultaneously attempts to avoid liability under RCRA without ever obtaining any judicial resolution of the point source issue.
Red River cannot manipulate the litigation in this way. Either there is a factual dispute as to whether the underdrains are point sources, which the factfinder must resolve, or the undisputed facts reveal that the underdrains are or are not point sources under the CWA's definition. "[T]here cannot be a tentative or conditional admission on motion for summary judgment, which by definition posits that there are not in truth any unresolved issues of material fact which must be tried if the wheel turns wrong." Lloyd v. Franklin Life Ins. Co., 245 F.2d 896, 897 (9th Cir. 1957). "A concession of fact on motion for summary judgment establishes the fact for all time between the parties. The party cannot gamble on such a conditional admission and take advantage thereof when judgment has gone against him." Id.; see also Help at Home, Inc. v. Med. Capital,
It is undisputed that the underdrains were designed to collect and convey water, and that they do in fact discharge water into tributaries and streams. They clearly meet the CWA's definition of point source. See 33 U.S.C. § 1362(14). This conclusion is further supported by the expert report of John Tyner, Ph.D., who has opined that each valley fill and its associated underdrain is a point source. Reply Mem. Ex. 15 at 7, ECF No. 52-2. I therefore find that the undisputed facts warrant the conclusion that the underdrains at issue in this case are point sources.
Because the underdrains are point sources, in order to be compliant with the CWA, discharges of pollutants from the underdrains must either be expressly authorized by a permit or allowed based on the so-called permit shield defense. See Sierra Club v. Shell Oil Co., 817 F.2d 1169, 1173 (5th Cir. 1987) (explaining that effluent limitations, set forth in a permit, "are to be applied to all point sources of discharge at a facility"). Red River argues that discharges of TDS from the underdrains are allowed here on either ground; SAMS disagrees as to both grounds.
NPDES permits are interpreted applying principles of contract interpretation. Piney Run Pres. Ass'n v. Cty. Comm'rs of Carroll Cty., 268 F.3d 255, 269 (4th Cir. 2001). Where the permit's language is unambiguous, the language itself will determine the permit's meaning. If the language is ambiguous, however, the court may consider extrinsic evidence in interpreting the permit. Id. at 269-70. As the Supreme Court of Virginia has held:
Berry v. Klinger, 225 Va. 201, 300 S.E.2d 792, 796 (1983).
Red River characterizes the Permit as a facility-wide general permit that allows it to discharge pollutants from anywhere on the Mine site rather than from specified point sources.
SAMS argues that the "from a facility" phrase is merely prefatory language and that the Permit goes on to specify outfalls and effluent limitations, which SAMS interprets as the exclusive list of point sources from which discharges are permitted under the Permit. SAMS asserts that the Permit either clearly does not allow discharges from other unnamed point sources or is ambiguous, thus allowing the court to consider extrinsic evidence of the parties' intent. SAMS construes the Permit's requirements as separated by statute. According to SAMS, the effluent limitations and listed outfalls address the CWA requirements, while the monitoring required at the underdrains addresses groundwater regulation under SMCRA. Thus, in SAMS's view, the Permit's requirement of monitoring at the underdrains does not give Red River authorization to discharge pollutants from the underdrains under the CWA, as neither DMLR nor Red River consider the underdrains to be point sources.
A careful review of the 1992 permit and its subsequent revisions is necessary in order to develop a construction of the Permit as a whole. The Permit is called a "Combined Permit to Conduct Coal Surface Mining Operations (CSMO) and to Discharge Under the National Pollutant Discharge Elimination System (NPDES)." Id. Ex. 3 at 2, ECF No. 43-3. It lists two separate permit numbers, a CSMO permit number and a NPDES permit number. It allows Red River "to discharge from [the Mine] into [Rat Creek and South Fork Pound River] ... in accordance with the requirements, conditions, and limitations set forth in this permit, and all plans approved for this permit." Id. Those specific requirements, conditions, limitations, and plans are many. A later revision of the Permit contains a similar but lengthier recitation, stating that Red River
Id. Ex. 7 at 2, ECF No. 43-7. That renewal contains a section captioned "NPDES Permit Definitions" which includes the following definitions:
Prior to removal of the sedimentation ponds, the Permit listed specific effluent limits at seven specific numbered outfalls, 001 through 007. For some listed NPDES outfalls, effluent limits are listed as "NL," which "indicates monitoring is required with no limitations." Id. at 4. The inclusion of such effluent limits suggests that discharges of pollutants from other point sources on the Mine site into the listed bodies of water are not permitted. This is consistent with the Permit's definitions of discharge and effluent limitation.
Revisions to the Permit refer to underdrains as sites for groundwater monitoring, which suggests, consistent with other record evidence and with Red River's prior arguments in this case, that DMLR and Red River do not consider the underdrains to be subject to CWA regulation because they view them as discharging into groundwater rather than surface water. The Permit packets include separate NPDES Effluent Limitations Tables and Ground Water Monitoring Report Forms. See, e.g., Id. Ex. 5 at 3, ECF No. 43-5. The DMLR Fact Sheet separately lists "NPDES DISCHARGE SITES," which include the numbered outfalls, and "GROUNDWATER MONITORING SITES," which include the underdrains. See, e.g., id. at 6. It is reasonable, then, to interpret the Permit as essentially two separate permits in one, covering CWA/NPDES and SMCRA. It is clear that DMLR and Red River consider the underdrains not to be covered by the NPDES portion of the permit. While this is obviously based on the language of the various Permit documents alone, it is also supported by extensive extrinsic evidence in the record. However, I do not need to consider that extrinsic evidence in reaching this conclusion.
While Red River's suggestion that the Permit allows discharges on a facility-wide basis at first seems to be a straightforward interpretation of the Permit's language, that interpretation would render the Permit's NPDES effluent limits superfluous. Reading the Permit as a whole, I find it unambiguous that the general authorization to discharge pollutants from the Mine into receiving waters is limited to the specific listed point sources and their effluent limits. Otherwise, there would have been no reason for DMLR to have included the specified outfalls and effluent limits. The only logical interpretation of the Permit is that discharges from point sources not listed are not expressly allowed.
The Monitoring Point Detail Supplement dated February 26, 2015, noted deletion of the sedimentation ponds, deletion of certain outfalls, and relocation of other out-falls. The parties agree that the Permit does not list outfalls or effluent limits for the underdrains. Based on my interpretation of the unambiguous Permit, the NPDES portion of the Permit in its current state thus does not authorize discharges of pollutants from the underdrains.
Even where a permit does not expressly authorize certain discharges, however, they may be allowed under the permit shield provision of the CWA. See 33 U.S.C. § 1342(k). Red River contends that the CWA's permit shield defense protects it from liability for discharges from the underdrains because DMLR was aware of those discharges but chose not to list them in the Permit.
The permit shield applies when:
S. Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d 560, 565 (4th Cir. 2014) (quoting Piney Run, 268 F.3d at 259).
There is no question that Red River has disclosed discharges from the underdrains to DMLR on an ongoing basis for many years. DMLR was well aware of the underdrains and the monitoring data when it issued the various Permit renewals. It reasonably anticipated TDS and conductivity levels from the underdrains. The Permit specifically mentions the underdrains, although it classifies them as sites for groundwater monitoring rather than as NPDES outfalls. DMLR chose to regulate the underdrains under the SMCRA portion of the Permit rather than under the NPDES portion, but it clearly knew that there would be discharges of TDS or conductivity from the underdrains and chose not to place specific limits on those discharges.
SAMS argues that Red River cannot avail itself of the permit shield because the permit shield only protects discharges of unlisted pollutants from listed point sources. According to SAMS, the permit shield cannot apply where a permit fails to cover a point source at all. In making this argument, it relies on a 1995 EPA guidance document. Red River notes that in addition to being dated, the 1995 EPA document was merely a policy statement and not the product of a formal rulemaking process, and it is therefore not entitled to any deference. SAMS also points to National Wildlife Federation v. Consumers Power Co., 657 F.Supp. 989, 1009 (W.D. Mich. 1987), rev'd on other grounds, 862 F.2d 580 (6th Cir. 1988), wherein the district court stated, "That defendant has secured a permit for certain point source discharges at the facility thus does not preclude plaintiff form arguing that there are other point source discharges at the facility for which the Court should also require defendant to secure permits." SAMS also cites Legal Environmental Assistance Foundation, Inc. v. Hodel, 586 F.Supp. 1163, 1168-69 (E.D. Tenn. 1984), for the proposition that a permit allowing discharges from one point source does not allow discharges from other point sources. In response, Red River cites the more recent decision in Tennessee Clean Water Network v. TVA, 206 F.Supp.3d 1280, 1300 (M.D. Tenn. 2016), rev'd on other grounds, 905 F.3d 436 (6th Cir. 2018), in which the court wrote that "[n]othing in the text of the permit shield provision, however, suggests that it should apply differently to violations based on the location of the discharge than it does to violations based on which pollutants are involved."
SAMS's argument elevates form over substance and would undermine the purpose of the permit shield. Neither the Fourth Circuit nor any other court of appeals has made the distinction that SAMS attempts to draw. In Piney Run, the Fourth Circuit plainly held,
The undisputed evidence demonstrates that Red River has done what DMLR has told it to do. Red River should be able to rely upon the clear directives of its regulators without being subjected to liability. The EPA disagrees with what DMLR has required, but it would be unfair to place Red River in the middle of a battle between federal and state regulators. The EPA or SAMS are free to take legal action against DMLR, but DMLR is not a party to this litigation. By being completely forthcoming with DMLR and complying with the express terms of its Permit, Red River has met its obligations under the CWA and is entitled to rely on the permit shield. I will therefore grant Red River's Motion for Summary Judgment as to the CWA claim.
The theory of SAMS's SMCRA claim is that Red River's SMCRA permit requires it to comply with Virginia's SMCRA performance standards, which in turn require compliance with all applicable state and federal water quality laws, standards, and regulations. A state regulation provides that Virginia waters must be free from substances or waste that "are inimical or harmful to human, animal, plant, or aquatic life." 9 Va. Admin. Code § 25-260-20(A). Another regulation states that surface mining and reclamation activities must be conducted in a way that will "prevent material damage to the hydrologic balance outside the permit area." 4 Va. Admin. Code § 25-130-816.41(a). SAMS alleges that by causing violations of these standards, Red River is violating its SMCRA permit. The regulation also requires that if typical reclamation and remedial practices are inadequate to meet water quality standards, "the permittee shall use and maintain the necessary water treatment facilities or water quality controls." Id. at (d)(1). SAMS contends that because the reclamation methods employed are inadequate to ensure compliance with the applicable standards, Red River is violating its SMCRA permit by failing to construct an appropriate treatment system.
Red River argues that SAMS's SMCRA claim is barred by SMCRA's savings clause. That clause states, "Nothing in this chapter shall be construed as superseding, amending, modifying, or repealing" various laws, including the CWA. 30 U.S.C. § 1292. Red River asks this court to adopt the reasoning of the Sixth Circuit in Sierra Club v. ICG Hazard, LLC, 781 F.3d 281 (6th Cir. 2015), which appears to be the only case directly addressing the issue presented here. In ICG Hazard, the court held that where a discharger complies with the CWA based on application of the permit shield, SMCRA's savings clause prohibits a finding of liability under SMCRA for the same discharges. Id. at 291. The court reasoned,
Id.
SAMS disagrees with the Sixth Circuit's conclusion in ICG Hazard. It notes that the CWA expressly requires discharges to comply with "any more stringent limitation,
Although the ICG Hazard decision is not binding on this court, I will adopt its reasoning and hold that SAMS's SMCRA claim is barred by the savings clause in § 702. It is true that the CWA and SMCRA impose separate obligations that can be independently enforced. See Sierra Club v. Powellton Coal Co., 662 F.Supp.2d 514, 534 (S.D.W. Va. 2009). But while the state narrative water quality standards are not themselves inconsistent with the CWA, applying them here as SAMS seeks to do would impermissibly circumvent the CWA. The SMCRA claim asserted by SAMS is based on the very same discharges that are protected by the CWA's permit shield. A finding that Red River has complied with the CWA but has violated SMCRA based on the same discharges would allow SMCRA to override the CWA's permit shield and would thus violate SMCRA's savings clause. I will therefore grant Red River's Motion for Summary Judgment as to the SMCRA claim.
SAMS has indicated that it will pursue its RCRA claim only if the court finds that the underdrains are not point sources subject to regulation under the CWA. Because I have found that the underdrains are point sources, I will grant Red River's Motion for Summary Judgment as to the RCRA claim.
For the foregoing reasons, it is
