Ohio Valley Environmental Coal v. Fola Coal Company, LLC


PUBLISHED AUTHORED OPINION filed. Originating case number: 2:13-cv-05006. [999997465]. [16-1024]

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Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 1 of 33 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1024 OHIO VALLEY ENVIRONMENTAL COALITION; HIGHLANDS CONSERVANCY; and SIERRA CLUB, WEST VIRGINIA Plaintiffs - Appellees, v. FOLA COAL COMPANY, LLC, Defendant - Appellant. -----------------------------------AMERICAN FOREST AND PAPER ASSOCIATION; AMERICAN PETROLEUM INSTITUTE; NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES; NATIONAL ASSOCIATION OF HOME BUILDERS; NATIONAL ASSOCIATION OF MANUFACTURERS; NATIONAL MINING ASSOCIATION; UTILITY WATER ACT GROUP, Amici Supporting Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Robert C. Chambers, Chief District Judge. (2:13-cv-05006) Argued: October 27, 2016 Decided: January 4, 2017 Before MOTZ and DIAZ, Circuit Judges, and Gerald Bruce LEE, United States District Judge for the Eastern District of Virginia, sitting by designation. Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Diaz and Judge Lee joined. Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 2 of 33 ARGUED: Michael Shane Harvey, JACKSON KELLY PLLC, Charleston, West Virginia, for Appellant. Joseph Mark Lovett, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Appellees. Thomas M. Johnson, Jr., OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amici The State of West Virginia and West Virginia Department of Environmental Protection. ON BRIEF: Robert G. McLusky, Jennifer L. Hughes, JACKSON KELLY PLLC, Charleston, West Virginia, for Appellant. J. Michael Becher, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia; James M. Hecker, PUBLIC JUSTICE, Washington, D.C., for Appellees. Karen C. Bennett, Samuel L. Brown, Brian R. Levey, Kristy Bulleit, HUNTON & WILLIAMS LLP, Washington, D.C.; Jan A. Poling, AMERICAN FOREST & PAPER ASSOCIATION, Washington, D.C.; Amanda Waters, Erica Spitzig, NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES, Washington, D.C.; Linda E. Kelly, Quentin Riegel, NATIONAL ASSOCIATION OF MANUFACTURERS, Washington, D.C.; Peter Tolsdorf, AMERICAN PETROLEUM INSTITUTE, Washington, D.C.; Tom Ward, NATIONAL ASSOCIATION OF HOME BUILDERS, Washington, D.C., for Amici American Forest & Paper Association, American Petroleum Institute, National Association of Clean Water Agencies, National Association of Home Builders, National Association of Manufacturers, National Mining Association and Utility Water Act Group. John C. Cruden, Assistant Attorney General, David S. Gualtieri, Jennifer Neumann, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States Environmental Protection Agency. Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Erica N. Peterson, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia; Kristin Boggs, General Counsel, Thomas L. Clarke, Senior Policy Advisor and Counsel, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Charleston, West Virginia, for Amici The State of West Virginia and West Virginia Department of Environmental Protection. 2 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 3 of 33 DIANA GRIBBON MOTZ, Circuit Judge: Several environmental groups brought this action against a coal company, alleging that the company had violated the Clean Water Act and seeking appropriate injunctive relief. bench trial, indeed the violated measures. district the Act court and found ordered that it to the After a company take had corrective The company appeals, principally asserting that its National Pollution Discharge Elimination System (“NPDES”) permit shields it from liability. Because the company did not comply with the conditions of its permit, the permit does not shield it from liability under the Clean Water Act, and the district court properly ordered appropriate remedial measures. Accordingly, we affirm the judgment of the district court. I. A. The Clean Water Act forbids all discharges of pollutants into waters of the United States, unless the discharger holds a permit. 33 U.S.C. §§ 1311(a), 1342, 1362 (2012). The Act shields NPDES permit holders from liability if their discharges comply with their permits. 33 U.S.C. § 1342(k). A typical NPDES permit lists numerical limitations on specific types of effluents and includes other conditions required for compliance with state and federal law. The Act requires that effluent 3 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 limits reflect applicable U.S.C. § 1312(a). These Pg: 4 of 33 water quality water standards. quality See may standards 33 be numerical or narrative, 40 C.F.R. § 131.3(b) (2016), and may, but need not be, contained in a permit. Under the Act, if a state receives approval from the Environmental Protection Agency (“EPA”), it can administer its own NPDES permitting program. See 33 U.S.C. § 1342(b). EPA reviews and must approve any substantive changes to a state’s permit program. See id. In 1981, West Virginia received EPA approval to administer its own permit program and has done so ever since. West Virginia has promulgated a number of regulations necessary to comply with the national NPDES program. Virginia reference) NPDES permits numerous incorporate provisions of (either the West All West expressly Virginia or by Code of State Rules. These include a series of regulations governing NPDES in permits general, as well as a separate regulations governing NPDES permits for coal mining. series of Compare W. Va. Code R. § 47-10 (2016) (general NPDES regulations), with W. Va. Code R. § 47-30 (coal mine NPDES regulations). In 1996, Fola Coal Company, LLC obtained a West Virginia NPDES coal mine permit to discharge into Stillhouse Branch, a tributary of Twentymile Creek and a waterway adjacent to Fola’s surface mining facility in central West Virginia. 4 Fola applied Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 5 of 33 for and received a renewed NPDES permit in 2009. The provisions of that permit lie at the heart of this case. B. On March Valley 13, 2013, Environmental three environmental Coalition, West groups Virginia -- Ohio Highlands Conservancy, and Sierra Club (collectively “the Coalition”) -filed this action under the provision, 33 U.S.C. § 1365. violated 5.1.f, Fola’s permit. a West Clean Water Act’s citizen suit The Coalition alleged that Fola Virginia regulation incorporated in At the time Fola’s renewal permit was issued in 2009, 5.1.f provided: The 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 adopted by the Department of Environmental Protection, Title 47, Series 2. W. Va. Code R. § 47-30-5.1.f (2009). Fola violated 5.1.f by sufficient quantities Stillhouse Branch, quality standards. to which The Coalition alleged that discharging cause resulted ions and increased in a sulfates in conductivity in violation of water Specifically, the Coalition asserted that Fola’s discharges violated two narrative water quality standards contained in Fola’s permit. See id. §§ 47-2-3.2.e, -3.2.i (2016); see infra n.8. In response to the Coalition’s allegations, Fola pointed out that it disclosed the nature 5 of its discharges when it Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 6 of 33 applied for the 2009 renewal permit. At that time, Fola had stated that its discharges would include ions and therefore be highly conductive. Despite this disclosure, the West Virginia Department of Environmental Protection (“WVDEP”) set no specific limitations on conductivity in Fola’s permit. By declining to do so, Fola asserted, WVDEP made an affirmative choice not to impose any followed limit that conductivity on 5.1.f of resulted in a reasoned that, conductivity. did its not obligate discharges violation because of it According Fola even water if with to that quality complied to Fola, limit the conductivity standards. the it effluent Fola limits expressly set out in its permit, the permit shielded it from all liability under the Act. To gain support for its view that 5.1.f imposed no obligation on it, in 2013 Fola sought clarification from WVDEP regarding a new involving the West permit “Notwithstanding any Virginia shield. rule law enacted The or new permit a law year earlier, provided condition to that the contrary, . . . compliance with a permit issued pursuant to this article shall be deemed compliance for purposes of” the Clean Water Act’s permit shield. 2012 W. Va. codified at W. Va. Code § 22-11-6(2) (2013)). SB 615 (formerly WVDEP responded that, in its view, this legislation did not substantively change existing law but simply clarified 6 West Virginia’s consistent Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 interpretation consistent of view, the a permit permit Pg: 7 of 33 shield. holder Under need this only assertedly disclose its discharges of effluents to WVDEP and comply with the effluent limits in the permit. If the permit holder did this, according to WVDEP, the permit would shield the permit holder from all liability under the Clean Water Act. In 2015, WVDEP attempted to remove from 5.1.f the language at issue in this case, which requires permit holders to comply with water quality standards. In doing so, WVDEP admitted that when the agency had issued Fola a renewal permit in 2009, 5.1.f “require[d] coal NPDES permittees to meet water quality standards, whether or not such standards are delineated in the permit or contained permitting process.” in the administrative record of the WVDEP, Response to Comments, 47 CSR 30, WV/NPDES Rule for Coal Mining Facilities, at 1 (2014), http:// apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=26342&Format=PDF. Nonetheless, WVDEP opined that its removal of the relevant language from 5.1.f “does nothing more than make [state law] consistent with” the Clean Water Act, which, according to WVDEP, did not require compliance with water quality standards. Id. Notwithstanding WVDEP’s views, EPA did not approve WVDEP’s attempted changes to 5.1.f. Instead, in a series of letters to WVDEP, EPA explained its concerns that the elimination of the water quality standards language in 5.1.f could cause state law 7 Appeal: 16-1024 to Doc: 74 conflict program. Filed: 01/04/2017 with federal Pg: 8 of 33 law and weaken the state’s NPDES WVDEP’s explanations did not assuage EPA’s concerns, and EPA did not approve any changes to 5.1.f or to any other language incorporated in Fola’s permit. In 2015, the West Virginia Legislature enacted another provision similar to SB 615 that explicitly violations prohibited against permit enforcing holders. water But quality again, standard EPA did not approve the removal of the relevant portion of 5.1.f or any similar changes to the state’s NPDES permit program that might affect Fola’s permit. Nevertheless, armed with WVDEP’s interpretation of SB 615 and the legislative district court to prohibit Fola from actions hold outlined that above, Fola urged permit provision 5.1.f West Virginia water violating did the not quality standards. Fola further contended that it could not be held accountable for quality within increased violations the because numerical conductivity the levels effluents allowed in and it its resulting water discharged fell permit were or disclosed during the permitting process. C. After a bench trial, at which the district court considered mountains of expert testimony, reports, and charts, the court issued a thorough written opinion. The court found that 5.1.f constituted an enforceable permit provision that required Fola 8 Appeal: 16-1024 to Doc: 74 refrain standards, Filed: 01/04/2017 from violating including the Pg: 9 of 33 West Virginia’s narrative water water quality quality standards contained in §§ 47-2-3.2.e and -3.2.i. The court found that mine drainage like that which Fola discharged into Stillhouse Branch deposited significant amounts of ions into the receiving water. 1 Ohio Valley Envtl. Coalition, Inc. v. Fola Coal Co., 82 F. Supp. 3d 673, 686–87 (S.D. W. Va. 2015). the These ions are measured by conductivity, id. at 687, and conductivity of Stillhouse Branch had markedly increased since Fola began discharging mine drainage into the water, id. at 696–98. As conductivity in Stillhouse Branch increased, the experts explained and the court found, sensitive insect species, which could not adapt to the sudden and dramatic change, died. 687. Id. at The decrease in aquatic diversity caused a decrease in the stream’s score on the West Virginia Stream Condition Index (“the 1 In order to extract coal, Fola blasted rock and dumped it into Stillhouse Branch. See Gregory J. Pond et al., Downstream Effects of Mountaintop Coal Mining: Comparing Biological Conditions Using Family- and Genus-Level Macroinvertebrate Bioassessment Tools, 27 J. N. Am. Benthological Soc’y 717, 718 (2008) (explaining surface coal mining). The minerals in the rock reacted with the flowing water to release calcium, bicarbonate, and sulfate ions. See Emily S. Bernhardt et al., How Many Mountains Can We Mine? Assessing the Regional Degradation of Central Appalachian Rivers by Surface Coal Mining, 46 Envtl. Sci. & Tech. 8115, 8115 (2012). 9 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 10 of 33 Index”), 2 which WVDEP and EPA had long used to measure the health of streams. The court noted that EPA considered Index scores below 68 to indicate impairment and that, in 2009 when WVDEP issued Fola’s renewal permit, WVDEP had generally shared that view. See id. at 677, 679 & n.4. The trial evidence established that since 2003 Stillhouse Branch had consistently scored well below 68, ranging from 31.6 to 58.17. The district court concluded that Id. at 696. “when conductivity reaches 300 [µS/cm], it is more likely than not that” the Index score will drop below 68 biologically impaired.” and “the subject stream will be Id. at 687 (citing EPA, A Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams (Final Report), EPA/600/R-10/023F, at A-36 (2011)). Samples from Stillhouse Branch reported conductivity that was ten times higher than this 300 µS/cm threshold. Id. at 696–98. The court found that Fola’s mining increased conductivity in Stillhouse Branch and that “high conductivity in downstream Stillhouse Branch is causing -- or, at the very least materially contributing to -- a significant adverse impact to the chemical and biological components of the stream’s aquatic ecosystems” in 2 See A Stream Condition Index for West Virginia Wadeable Streams 1-2 (2000), http://www.dep.wv.gov/WWE/watershed/bio_fish /Documents/WVSCI.pdf. 10 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 11 of 33 violation of the West Virginia narrative water quality standards incorporated into Fola’s permit. With urging, respect to rejected burdensome. Id. at 698. remedy, the the district Coalition’s court, proposed at remedy Fola’s as too Instead, the court appointed a Special Master of Engineering to monitor Fola’s implementation of less burdensome methods Fola proposed. Fola timely noted this appeal. D. A court contract. must interpret NPDES permit as it would a Piney Run Pres. Ass’n v. Cty. Comm’rs, 268 F.3d 255, 269 (4th Cir. 2001). the an district court Thus, to the extent that the judgment of rests on interpretation of Fola’s NPDES permit, that interpretation constitutes a legal question, which we review de novo. Id. But to the extent that judgment rests on factual findings made after a bench trial, we can reverse only if those findings are clearly erroneous. Id. II. Fola principally contends that the district court misinterpreted its permit. In doing so, Fola presents a narrow argument. expressly Reply Br. acknowledges at 3. Fola that its admits permit that “incorporates” “permit shielded from violations of permit conditions.” 11 The company holders 5.1.f. are Id. at 1. not And Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 12 of 33 the company forgoes any claim that 5.1.f does not impose water quality standards, including those found in 3.2.e and 3.2.i. Fola’s sole argument is that 5.1.f controls the conduct of WVDEP, the state regulator, and imposes no requirements on Fola, the regulated entity. Fola argument. but is offers three points assertedly supporting this First, the company maintains that 5.1.f is ambiguous best interpreted as a regulation authority, not the permit holder. of the permitting Second, Fola contends that the district court failed to examine “extrinsic evidence,” which it argues eliminates any ambiguity and demonstrates that, in the “contemplation of the parties,” obligation on the permit holder. 5.1.f clearly imposed no Finally, Fola claims that our holding and analysis in Piney Run requires a court to conclude that 5.1.f imposes obligations only on the permitting authority. We consider each of these arguments in turn. A. We initially examine the language determine if it is indeed ambiguous. of Fola’s permit to As we recognized in Piney Run, “if ‘the language [of a permit] is plain and capable of legal construction, permit’s meaning.” the language alone must determine’ the Piney Run, 268 F.3d at 270 (quoting FDIC v. Prince George Corp., 58 F.3d 1041, 1046 (4th Cir. 1995)). 12 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 13 of 33 Contrary to Fola’s assertions, the text of 5.1.f of the permit seems prohibits straightforward “discharges covered water quality standards. and unambiguous. by” the The permit provision from violating Of course, it is the permit holder that generates “discharges covered by” the permit. Thus, the provision controls the activities of the permit holder -- here Fola. The state agency simply drafts the permit. That agency, WVDEP, has no control over the permit holder’s discharges. Further, there is no mention in 5.1.f of “regulating,” “drafting a permit,” or “determining effluent limits,” all core activities of the state regulator. Rather, 5.1.f focuses on the discharges themselves. the language of One would have to rewrite 5.1.f substantially to read it as imposing obligations on WVDEP. 3 applies to As written, the plain language of 5.1.f indicates it Fola, the permit holder, not WVDEP, the agency granting the permit. Review of the provisions surrounding 5.1.f further supports this conclusion. 5.1.f is contained in a section of the permit 3 For example, if 5.1.f imposed requirements on the state regulator rather than the permit holder, it would more naturally read: “The discharge or discharges covered by a WV/NPDES permit are to be of such quality regulated by the Department of Environmental Protection so as not to cause violation of applicable water quality standards adopted by the Department of Environmental Protection that agency, Title 47, Series 2.” Notably, these changes would require both insertions and deletions. 13 Appeal: 16-1024 Doc: 74 entitled Filed: 01/04/2017 “Conditions subsection entitled Pg: 14 of 33 Applicable “Duty to to All Comply; Permits,” and The Penalties.” in a first mandate of the subsection states, “The permittee must comply with all conditions of a WV/NPDES permit.” See W. Va. Code R. § 47-30-5.1.a (2009) (emphasis added). This subsection then lists several ways a permit holder can violate the permit separate and apart from violations of the permit’s effluent limits. For example, under this subsection, a permit holder violates the permit when it “falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under a WV/NPDES permit.” § 47-30-5.1.d. “knowingly required And a permit holder violates a permit when it makes certification to Id. in be any any false record maintained statement, or under other this representation, document submitted permit.” Id. or or § 47-30- 5.1.e. It seems unlikely that immediately following these clear restrictions on permit holders, in a subsection specifically addressed to permit holders, the drafters inserted in 5.1.f a directive agency. not to Indeed, permit it holders, makes but little only sense to for the regulating 5.1.f to be incorporated into all coal mining permits, see id. § 47-30-5, if 5.1.f does not obligate the permit holder in any way. 14 Appeal: 16-1024 Doc: 74 Accordingly, Filed: 01/04/2017 the district Pg: 15 of 33 court’s conclusion that 5.1.f unambiguously regulates permit holders seems entirely warranted. 4 B. Furthermore, rather than supporting Fola’s interpretation, all relevant extrinsic evidence points to the conclusion that 5.1.f imposes obligations on the permit holder, not the state permitting agency. Fola’s argument to the contrary relies almost entirely on statements from WVDEP and the West Virginia Legislature. Fola contends that these statements prove that neither body intended 5.1.f to create an obligation on permit holders to meet water quality standards beyond the numerical effluent limits in the permit. The Legislature’s 2013 and 2015 amendments and WVDEP’s statements certainly evince West Virginia’s present desire to cease enforcement holders. of water quality standards against permit But neither WVDEP’s current interpretation nor the Legislature’s actions in amending state law in 2013 and 2015 constitute extrinsic evidence supporting Fola’s interpretation of its 2009 permit. 4 Fola contends that the district court’s holding renders the effluent limits in the permit superfluous. But by Fola’s own admission, the effluent limits do not delineate all the discharges disclosed to the regulating agency. 5.1.f captures those discharges, not explicitly regulated by effluent limits, which nonetheless decrease water quality and harm the aquatic ecosystem. 15 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 16 of 33 And Fola is simply wrong in contending that “[t]here is no evidence that West Virginia ever intended” to hold permit holders liable for violations of water quality standards. of Appellant at 34 (emphasis added). Br. In fact, Fola has provided no evidence that the Legislature or WVDEP lacked this intent when Fola’s renewal permit was issued in 2009. Rather, the record evidence indicates this was precisely what was intended. In 2011, two years after the issuance of Fola’s current permit, WVDEP pursued an enforcement action against Fola’s parent company based on violations of the exact water quality standards at issue here as incorporated into the NPDES permit through 5.1.f. See Complaint in Intervention at 12, United States v. Consol Energy, Inc., No. 1:11-cv-0028 (N.D. W. Va. Mar. 14, 2011), ECF No. 6-1. to injunctive relief to And Fola’s parent company agreed remedy these violations. Consent Decree, Consol Energy, No. 1:11-cv-0028 (N.D. W. Va. Jun. 15, 2011), ECF interpreted No. 3-1. 5.1.f to Moreover, require coal as amend 5.1.f. as companies permits to meet water quality standards. Comments, at 1. late 2015, WVDEP holding NPDES See WVDEP, Response to This was the very reason why WVDEP attempted to See id. Fola nonetheless insists that 5.1.f cannot subject it to any substantive obligations because, during the formal rulemaking in which 5.1.f was added to West Virginia’s NPDES 16 Appeal: 16-1024 Doc: 74 program, EPA Filed: 01/04/2017 stated rights “substantive that or the Pg: 17 of 33 new rules would obligations.” not alter Revision of any West Virginia’s NPDES Program Transferring Authority over Coal Mines and Coal Preparation Plants from the West Virginia Department of Natural Resources; Division of Water Resources to Its Division of Reclamation, 50 Fed. Reg. 2996, 2997 (Jan. 23, 1985). argument both misreads the history of 5.1.f and That ignores important record evidence. 5.1.f’s standards mining prohibition originated in regulations. Reclamation against pre-1984 See Regulations, ch. violating West water Virginia West Virginia 20-6, ser. quality surface Surface VII, coal Mining § 6B.04 (1983) (“Effluent Limitations - Discharge from the permit area shall not violate effluent limitations or cause a violation of water quality standards.”). At that time, the surface coal mining regulations clearly recognized that permit holders were subject to enforcement actions for violating both effluent limitations and water quality standards. Id. In 1984, West Virginia consolidated its surface coal mining regulations with its water pollution regulations. See Preamble to Proposed Regulations Consolidating the Article 5A and Article 6 Program (filed Nov. 9, 1984). governing As a result of this consolidation, the regulations NPDES permits for coal 17 mines thereafter included Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 18 of 33 provisions like 5.1.f that were previously found in the surface mining regulations. See WVDEP, Response to Comments, at 1. The origin of 5.1.f renders untenable Fola’s reliance on EPA’s determination that the consolidated new regulations did not alter “substantive rights or obligations.” The new regulations did not alter any EPA was correct. obligations under a permit; they simply brought existing obligations on surface coal mines into a facilities were obligations Thus, single EPA already prior had regulatory to no the reason scheme. subject to Surface substantively consolidation to coal conclude mining identical of the regulations. that the consolidated regulations altered any “substantive rights or obligations.” Moreover, although ignored by Fola, EPA’s view as to the reach of 5.1.f has been consistent, as has the acceptance by courts of EPA’s view when interpreting similar water quality provisions. has In contrast to WVDEP’s recent change of heart, EPA remained clear through the obligations on permit holders. years that 5.1.f imposes Before us, EPA has filed an authoritative amicus brief pointing this out and reiterating its position. As EPA notes in its brief, some of the NPDES permits that itself EPA has issued impose 18 narrative water quality Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 standards like those standards have been in Fola’s enforced Pg: 19 of 33 permit. 5 against That quality permit NPDES water holders demonstrates the error in Fola’s contention that 5.1.f cannot reasonably be interpreted to impose obligations on permit holders like Fola. In sum, both the plain language of the provision and the extraneous evidence support the district court’s holding that 5.1.f constitutes, enforceable against as it NPDES has for permit decades, holders, a not regulation the state permitting agency. C. Finally, Fola argues that our holding in Piney Run somehow prohibits this conclusion. that permit holders “who According to Fola, Piney Run held disclose their pollutants to the permitting agency and thereafter comply with the effluent limits 5 See, e.g., EPA NPDES Permit No. NH0100099 for the Town of Hanover, New Hampshire, pt. I.A.2, .3 and .6, https://www3.epa .gov/region1/npdes/permits/2015/finalnh0100099permit.pdf; EPA 2015 Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity, pt. 2.2.1, https:// www.epa.gov/sites/production/files/2015-10/documents/msgp2015 _finalpermit.pdf. Moreover, courts have enforced water quality standards provisions when, as here, the NPDES permit incorporates these standards. See, e.g., Nat. Res. Def. Council, Inc. v. Cty. of Los Angeles, 725 F.3d 1194, 1199, 1205 (9th Cir. 2013); Nw. Envtl. Advocates v. City of Portland, 56 F.3d 979, 985–90 (9th Cir. 1995); Nat. Res. Def. Council v. Metro. Water Reclamation Dist. of Greater Chicago, 175 F. Supp. 3d 1041, 1049–54 (N.D. Ill. 2016). In support of its contrary view, Fola relies on inapposite, unpublished, and overruled cases. 19 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 20 of 33 in their NPDES permits are shielded from liability” under the Clean Water Act. Br. of Appellant at 43. Therefore, Fola contends, since it “disclosed the presence of conductivity in its discharges and has complied with the effluent limits established by . . . WVDEP,” it too is shielded from liability under the permit. Act, Id. even if it violated provision 5.1.f of its There are multiple problems with this contention. First, and most fundamentally, Fola misstates our holding in Piney Run. We expressly held that a permit shields “its holder from liability . . . as long as . . . the permit holder complies with the express terms of the permit and with the Clean Water Act’s disclosure requirements.” 259 (emphasis added). 6 wishes away its Piney Run, 268 F.3d at Fola ignores the emphasized language and violation permit” -- provision 5.1.f. of one of “express terms of the Piney Run offers no support for this approach. Fola attempts to bolster its misunderstanding of Piney Run by misinterpreting the careful examination of the history of the Clean Water Act we set forth in that case. See id. at 264-66. We recognized that requirements that permit holders meet water 6 Of course, to obtain the benefits of the permit shield a permit holder must also not discharge a pollutant in excess of the effluent limitations for that pollutant as listed in the permit. Piney Run, 268 F.3d at 259. That requirement is not at issue here. 20 Appeal: 16-1024 Doc: 74 quality Filed: 01/04/2017 standards had been Pg: 21 of 33 the “primary means of federal regulation” prior to the 1972 enactment of the Clean Water Act. Id. at 264. The Act provided regulators with another tool -- “direct limitations on the discharge of pollutants” in the form of numerical caps on those discharges -- and a means to regulate -- NPDES permits. Id. at 265 (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 151 (4th Cir. 2000)(en banc)). In Piney Run, we explained that adherence to its permit shielded a permit holder from liability under the Act. contrary to numerical Fola’s apparent limitations constituted the Clean Water Act. only belief, on proper we specific subject did not pollutant of regulation Id. But hold that discharges under the Rather, we noted that, despite the Clean Water Act’s “shift in focus of environmental regulation towards the discharge of pollutants, water quality standards still have an important role in the [Clean Water Act’s] regulatory scheme.” Id. (emphasis added). Compounding its error, Fola refuses to recognize that Piney Run involved very different issues than those presented here. In Piney permit’s Run, we did requirement not that consider the permit the enforceability holder adhere to of a water quality standards, let alone the enforceability of the specific narrative water quality standards required by West Virginia’s 21 Appeal: 16-1024 Doc: 74 NPDES permit. limitations Filed: 01/04/2017 Pg: 22 of 33 Piney Run involved the enforcement of numerical on the discharge of different Maryland NPDES permit. 7 that the holder of a Maryland pollutants under a very In that context, we concluded NPDES permit who “discharges pollutants that are not listed in its permit” was nonetheless shielded from liability “adequately disclosed” authority.” under those the Clean discharges Water “to Act the if it permitting Id. at 268. But this conclusion in Piney Run does not allow an NPDES permit holder in West Virginia to ignore 5.1.f’s requirement “not to cause violation of applicable water quality standards.” Indeed, although Piney Run involved a permit that regulated only numerical effluent limitations, rather than also directing adherence to water quality standards like the permit at issue here, we iterated and reiterated that only “follow[ing] the terms of their NPDES permits” allows permit holders to avoid liability. Id. at 265; see also id. at 259 (explaining that to be shielded from liability under the Clean Water Act, a permit holder must comply “with the express terms of [its] permit”). Piney Run provides Fola no way to avoid liability if Fola has 7 Maryland’s NPDES permits do not contain a provision similar to 5.1.f. Rather, unlike in West Virginia, the Maryland permitting agency simply will not issue a permit unless it “finds that the discharge meets . . . applicable State and federal water quality standards.” Md. Code Ann., Envir. § 9324(a)(1) (West 2016). 22 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 23 of 33 not complied “with the express terms of its permit,” including provision 5.1.f. Nothing in Piney Run forbids a state from incorporating water quality standards into the terms of its NPDES permits. Rather, Piney Run held, as we do today, that a permit holder must comply with all the terms of its permit to be shielded from liability. The terms of Fola’s permit required it to comply with water quality standards. If Fola did not do so, it may not invoke the permit shield. III. Having imposes no rejected Fola’s obligations on principal it, we contention turn to that Fola’s 5.1.f remaining argument -- that the district court erred in finding that Fola violated 5.1.f. A. Through 5.1.f., Fola’s permit incorporates narrative water quality standards prohibiting discharges into Stillhouse Branch that are “harmful” or have a “significant adverse impact” on aquatic ecosystems. 8 In a long, remarkably thorough opinion, the 8 These standards provide in relevant part: 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 . . . (Continued) 23 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 24 of 33 district court explained its reasons for concluding that Fola’s discharges into Stillhouse Branch violated these narrative water quality standards in Fola’s permit. testimony, reports, charts, The court relied on the studies, and exhibits from experienced scientists who had published extensively in peerreviewed journals. contention that All of the experts supported the Coalition’s Fola violated the the experts used to determine permit’s narrative water the Virginia Stream quality standards. 9 In doing Condition so, Index West whether biologically compromised Stillhouse Branch. Fola’s discharges Both EPA and WVDEP have long used the Index to measure water quality. When a . . . 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 (2016). 9 Fola offered a witness whom the district court found “h[eld] no training in the study of ecology” and, prior to being retained by Fola as an expert in this litigation, “had never analyzed the type of ecological data” at issue here. Fola, 82 F. Supp. 3d at 681. On appeal, Fola does not suggest that the district court should have credited this witness’s testimony. 24 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 25 of 33 stream’s Index score falls below 68, EPA considers the stream impaired under experts explained discharges 33 caused U.S.C. § that the the 1313(d). See release conductivity of in infra ions n.11. from Stillhouse The Fola’s Branch to increase and sensitive insect species to die, thereby causing the stream’s Index score to fall well below 68. Supp. 3d at 696. Fola, 82 F. On the basis of the expert evidence, the district court found that Fola’s discharges caused or materially contributed to the impairment of Stillhouse Branch by increasing the conductivity of the stream. On appeal, Fola makes no contention that the district court erred in materially finding that contributed Stillhouse Branch. Fola’s to discharges the in fact biological caused impairment or in And Fola does not argue that narrative water quality standards cannot be enforced; it could not do so given that the Supreme Court has held to the contrary. See PUD No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 716 (1994) (explaining that the Clean Water Act “permits enforcement of broad, narrative criteria” and “only one class of criteria, those governing ‘toxic pollutants listed pursuant to section 1317(a)(1),’ need be rendered in numerical form”). Instead, Fola offers brief and largely derivative “process” arguments. A substantial portion of those arguments involve Fola’s mischaracterization of the district court’s careful and 25 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 detailed fact-finding. finding, which of Fola course Pg: 26 of 33 attempts can only to be treat reversed that if factclearly erroneous, as “rulemaking” subject to de novo review. B. First, Fola maintains that it was deprived of “fair notice” that water quality standards were enforceable provisions of its permit. the This assertion rests on Fola’s own misinterpretation of language acknowledge above. in that its 2009 language’s permit and history, a all studied of which refusal we to detail Suffice it to say again that, when the Coalition filed this lawsuit in March 2013, Fola had been bound by the 2009 permit at issue here for four years. Moreover, in 2011, two years prior to the commencement of this action, WVDEP brought suit to enforce the water quality against Fola’s parent company. standards at issue here And, prior to initiation of this case, Fola’s parent company had in fact agreed to take measures to remedy its violations of those water quality standards. thus had ample, personalized notice that the water Fola quality standards in a West Virginia NPDES permit were enforceable, and would be enforced, against a permit holder. Fola next contends that it relied on guidance from WVDEP that the State would not pursue any enforcement action based on conductivity or water quality standards. But again as explained above, WVDEP Fola offers no evidence 26 that made any such Appeal: 16-1024 Doc: 74 assurance in Moreover, Filed: 01/04/2017 2009 such when Pg: 27 of 33 WVDEP contemporaneous last renewed assurances Fola’s seem permit. unlikely given WVDEP’s decision in 2011 to bring an enforcement action based on these very water quality standards. Further, even if Fola had offered evidence that WVDEP made such assurances when it issued Fola’s renewal permit in 2009, that would Coalition from bringing this lawsuit. citizen suit situations, provision like the of one the at the Water in enforcement agency declines to act. foreclose For Congress enacted the Clean hand, not Act to address which the traditional See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 53, 60 (1987). An agency’s informal assurance that it will not pursue enforcement cannot preclude a citizen’s suit to do so. See 33 U.S.C. § 1365(b)(1)(B). Finally, Fola argues that the district court engaged in unlawful rulemaking. Hornbook law defines principle or That standard “a The applicable as “a developed by some findings case. district principle based on is rule” administrative authorities.” 2016). argument or the court similarly generally authority unsound. applicable including 1 Admin. L. & Prac. § 1:20 (3d ed. did standard.” evidence not create The presented any court in “generally made this factual particular The only rules for which the court found Fola liable are contained in its permit, specifically §§ 47-30.5.1.f and 47-227 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 3.2.e and -3.2.i. Pg: 28 of 33 These rules have long been incorporated into Fola’s permit, and EPA has never approved their removal. They remain unchanged and controlling. We must reject Fola’s attempts to transform the district court’s detailed fact-finding into rulemaking. After carefully assessing the record before it, the district court found as a fact that that a failing Index score indicated an impaired stream and that Fola’s mining caused the increased conductivity that resulted in that impairment. supported by the record evidence. These findings are well None are clearly erroneous. Some even rest on undisputed facts. For example, EPA has identified, and Fola does not dispute, “mining” as the source of the impairment of Stillhouse Branch. Virginia Integrated Water Quality See WVDEP, 2012 Final West Monitoring and Assessment Report List Page 14 (reviewing the 2012 Clean Water Act Section 303(d) Impaired Waters List). its mine the And Branch. is WVDEP disagree, that assessment of § 3.2.i only itself the the narrative mine Moreover, Fola stipulated that that has Index criteria” Stillhouse Branch. WVDEP, Permitting Guidance for explained, “was biological discharges of applicable Justification Surface and Coal and Mining does designed the to Stillhouse Fola specifically component as into 47 waters not for C.S.R. 2 such as Background Operations for to Protect West Virginia’s Narrative Water Quality Standards, 47 28 Appeal: 16-1024 Doc: 74 C.S.R. 2 Filed: 01/04/2017 §§ 3.2.e Pg: 29 of 33 and 3.2.i, at 4 (2010), http://www.dep.wv.gov/pio/Documents/Narrative/Narrative Standard s Guidance Justification.pdf. Despite this historic consensus, Fola argues that WVDEP has recently rejected the Index as a sole determinant of water quality, and that the court has therefore “usurped” the agency’s role in its use of the Index. This argument rests on a mischaracterization of the district court’s use of the Index. The court did not enshrine the Index as the sole acceptable method of establishing violations of water quality standards. Rather, the court explained that it only relied on the Index “[i]n the absence of methodological alternative.” [WVDEP] advancing a meaningful Fola, 82 F. Supp. 3d at 679. On appeal, neither Fola nor WVDEP points to any “methodological alternative” to the Index. In the absence of any alternative, the district court simply applied the methodology both WVDEP and EPA have applied for years. The district court found that, until 2012, EPA and WVDEP had generally agreed to use an Index score of 68 to determine whether water quality standards were being met. If a stream scored below 68, the stream was to be listed as impaired. 29 Id. Appeal: 16-1024 Doc: 74 at 677. 10 See, Filed: 01/04/2017 Pg: 30 of 33 The record offers abundant support for this finding. e.g., Administrator, Letter to from Shawn Randy C. M. Garvin, Huffman, EPA Regional Secretary, WVDEP [hereinafter Garvin Letter], Enclosure 1, at 16 (Mar. 25, 2013) (“When determining whether to add waters to West Virginia’s Section 303(d) list, EPA used West Virginia’s narrative water quality criteria (W. Va. CSR §§ 47-2-3.2(e) & (i)) as applied to the aquatic life uses, and WVDEP’s bioassessment listing methodology for its 2010 Section 303(d) list (i.e., [the Index]) . . . .”); see also WVDEP, 2010 West Virginia Integrated Water Quality Monitoring and Assessment Report 14 (2010) (explaining the direct relationship between § 47-2-3.2.i, Index scores, and impaired water listing). Indeed, Fola concedes that EPA and WVDEP have long used the Index. Neither agency -- nor anyone else before this case -- suggested that this use required promulgation of a formal rule. Rather, the Index has been used, as the district court used it, as a method for assessing compliance 10 with narrative water Prior to 2012 when it ceased using the Index to determine impairment, WVDEP had attempted to include a “gray-zone” listing between 60.6 and 68.0. EPA rejected this approach as “unsupportable,” and continues to use 68 as the threshold. See Garvin Letter, Enclosure 1, at 12 n.3. For our purposes, this dispute is immaterial because the district court found that Stillhouse Branch had an Index score ranging from 31.60 to 58.17. Fola, 82 F. Supp. 3d at 696. Fola does not challenge these findings. 30 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 quality standards. Pg: 31 of 33 Far from creating a rule for determining violations of water quality standards, the court simply made a factual determination methodology. using Employing the this Index as methodology, a well-established the district court came to the same conclusion as EPA had -- Stillhouse Branch was impaired. 11 Similarly, court’s contrary determinations to as Fola’s to assertions, conductivity findings of fact, not rulemaking. also the district constituted The court heard extensive expert testimony on the causal relationship between increased conductivity in Appalachian streams and impairment as evidenced by declining Index scores. court credited authoritative the EPA Fola, 82 F. Supp. 3d at 679-86. testimony publication. of accepted All experts concluded that and The an mining activities cause increases in conductivity, which in turn cause impairment. The Id. at 686–96. court noted that peer-reviewed scientific articles first recognized the relationship of mining, conductivity, and 11 While Fola focuses on notice as it relates to procedure, it is worth mention that Fola also had notice of the court’s factual determination that Stillhouse Branch was impaired. WVDEP (with EPA approval) has listed Stillhouse Branch on its impaired waters list based on biological impairment since 2006. See WVDEP, 2006 Integrated Water Quality Monitoring and Assessment Report List Page 15 (2006); id. at 20 (explaining that WVDEP assessed biological impairment using the Index). 31 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 32 of 33 decreased Index scores in 2008, a year before issuance of Fola’s renewal permit. See id. at 690 (citing Pond et al., supra n.1). Other articles strengthened these findings. Id. (citing, among others, M.A. Palmer et al., Mountaintop Mining Consequences, 327 Sci. 148 (2010) (finding that as conductivity increased, Index scores decreased)). In rebuttal, Fola offered an expert whom the district court found unqualified -- an assessment Fola does not challenge on appeal. Finally, the relief the district court ordered belies any suggestion that it engaged in rulemaking. The court had the “discretion to determine” appropriate relief. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 192 (2000). In exercising that discretion, the district court order refused to Fola to implement the Coalition proposed, a reverse osmosis system. this solution “too expensive and too solution the The court deemed uncertain.” Order Specifying Relief at 5, Fola, No. 2:13-cv-5006 (S.D. W. Va. Dec. 8, 2015), ECF No. 183. Instead, the court appointed a special master to oversee implementation of Fola’s proposed solution, which focused on water management practices that respond to the unique characteristics of Stillhouse Branch. Id. at 6–7. The court did not require Fola to achieve any particular Index score or conductivity level, but simply ordered Fola to take appropriate measures either to reduce the conductivity in its 32 Appeal: 16-1024 Doc: 74 Filed: 01/04/2017 Pg: 33 of 33 discharges or to increase the Index score of Stillhouse Branch. Id. at 1. The relief ordered by the district court reflects its careful fact-based findings, not unprincipled rulemaking. In sum, Fola’s arguments as to why the district court erred in finding that Fola violated its permit, like Fola’s arguments as to the permit’s reach, uniformly fail. IV. Accordingly, for the reasons set forth above, the judgment of the district court is AFFIRMED. 33

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