Sierra Club v. ICG Hazard, LLC
Filing
65
MEMORANDUM OPINION & ORDER: 1)Summary judgment is GRANTED in favor of ICG with regard to Counts One and Two [R.40]; 2)Sierra Club's Motion for Summary Judgment as to Counts One and Two is DENIED [R.41]; 3) ICG's Motion for Su mmary Judgment as to Counts Three, Four, and Five is DENIED [R.40]; 4)Sierra Club's Motion for Summary Judgment as to Counts Three and Five is DENIED [ Motions terminated: 40 MOTION for Summary Judgment by ICG Hazard, LLC filed by ICG Hazard, LLC, 41 MOTION for Partial Summary Judgment by Sierra Club filed by Sierra Club. Signed by Gregory F. VanTatenhove on 9/28/2012.(RC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
SIERRA CLUB,
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Plaintiff,
V.
ICG HAZARD, LLC
Defendant.
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Civil No: 11-148-GFVT
MEMORANDUM OPINION
&
ORDER
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Cross motions for summary judgment pertaining to liability have been filed in this
bifurcated action. At issue is whether Defendant ICG is liable for discharging water containing
pollutants in violation of the Clean Water Act and/or the Surface Mining Control and Reclamation
Act. For the reasons set forth below, the Court GRANTS ICG’s motion as to Counts One and Two
and DENIES both Sierra Club’s and ICG’s motions as to Counts Three and Five. With regard to
Count Four, for which summary judgment was not sought by Sierra Club, the Court DENIES
ICG’s motion.
I.
A.
Sierra Club’s Complaint [R. 20] contains five claims.1 These allege that ICG’s Thunder
Ridge Mine, located in Leslie County, Kentucky, discharged water that violated Kentucky’s water
quality standards. The assertion is that the water contained an excess amount of selenium and was
1
The complaint from 6:11-cv-325, an action that was consolidated with the above cited action, does not assert any
new claims. Rather, it asserts additional violations of the already asserted claims.
overly conductive. [Id.] Selenium is a naturally occurring element found in the environment, and
it “impacts the reproductive cycle of many aquatic species, can impair the development and
survival of fish, and can even damage gills or other organs of aquatic organisms” when it rises to
particular concentrations. Ohio Valley Envtl. Coal. v. Hobet Mining LLC, 723 F. Supp. 2d 886, 900
(S.D. W.Va. 2010). Water with too much conductivity can also harm indigenous aquatic life. [R.
20 at 11-13.] These harms, in turn, diminish the aesthetic value of the stream, claim Sierra Club
members Teri Blanton and Lane Boldman.2 [R. 42 at 12-16.]
ICG is alleged to be subject to limitations on its discharges because of two interconnected
federal statutes, each effectuated through Kentucky administrative agencies. The Federal Water
Pollution Control Act, 33 U.S.C. § 1251 et seq, more commonly referred to as the Clean Water Act
(CWA), provides the basis for Sierra Club’s first claim and is integral to its second claim. The
Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. § 1201 et seq, is the vehicle by
which Sierra Club asserts the remaining three claims. [R. 1.]
The CWA was “designed to restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters.” Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 469-70 (6th
Cir. 2008) (internal quotation marks omitted) (quoting another source). This goal is achieved, in
part, by requiring all “individual point-source discharger[s] [to] obtain and adhere to the terms of a
National Pollutant Discharge Elimination System (NPDES) permit issued by the EPA or an EPAauthorized state agency.” Id. at 270 (quoting 33 U.S.C. § 1342(a)-(d)). Kentucky possesses the
ability to issue permits, called Kentucky Pollutant Discharge Elimination System (KPDES)
permits, id., and it does so through the Kentucky Department of Water. 401 Ky. Admin Regs.
(KAR) 5:050 (2012); [R. 42 at 5.] ICG’s Thunder Ridge Mine has been permitted under the
ICG has not challenged Sierra Club’s standing to bring this action, and the Court finds that Sierra Club indeed has
met this jurisdictional prerequisite. [See R. 42 at 11-18 (explaining how the standing requirements were met).]
2
2
KPDES Coal General Permit since 1991. [R. 40, Ex. 1 at 8.] The permit covering Thunder Ridge
was renewed on August 1, 2009 when the Coal General Permit’s most recent iteration became
effective. [R. 40, Ex. 2 at 1; R. 40, Ex. 9 at 1.] Utilizing the CWA’s citizen suit provision, 33
U.S.C. § 1365, Sierra Club alleges that ICG has violated, and continues to violate, the conditions
of its KPDES Permit.3 Specifically, ICG is accused of discharging selenium—a pollutant not
authorized for discharge by Permit KYG043540—into waters that flow through and around ICG’s
Thunder Ridge Mine.
The SMCRA was enacted to establish “a nationwide program to protect society and the
environment from the adverse effects of surface coal mining.” § 1202(a). Congress clearly acted
to protect the environment, but it also recognized coal’s utility and sought to balance those dual
interests. 30 U.S.C. § 1202(f). In effect, the SMCRA requires any party who engages in surface
coal mining to obtain and comply with a permit issued by a federally approved state agency or, if a
state lacks such an agency, the federal Office of Surface Mining Reclamation and Enforcement
(OSM). § 1256(a); In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1350 (D.C. Cir.
1980). Kentucky’s Department of Natural Resources (KDNR) has been approved by the OSM and
issues surface mining permits in accordance with Kentucky statute, Ky. Rev. Stat. (KRS) § 350,
and regulations, 405 KAR 7-24, which were drafted based on requirements set forth in the
SMCRA. See Southern Ohio Coal Co. v. Office of Surface Mining, 20 F.3d 1418, 1421 (6th Cir.
1994). ICG possesses a mining permit for Thunder Ridge, 866-0281 [R. 42 at 19; R. 41, Ex. 4],
issued by the KDNR. Sierra Club does not contest that fact. Instead, Sierra Club argues that ICG
To the extent ICG challenges Sierra Club’s ability to raise claims using each statute’s respective citizen suit
provision, that challenge is not well-founded. [See R. 40, Ex. 1 at 18-20 (discussing Sierra Club’s CWA cause of
action); id. at 20-24 (discussing Sierra Club’s SMCRA cause of action).] Sierra Club’s filings reveal dissatisfaction
with the terms of the general permit, but its central challenge is focused on whether the conditions of the permit were
violated. See Piney Run Pres. Ass’n v. Cnty. Comm’rs. of Carroll Cnty., 268 F.3d 255, 260 n.2 (4th Cir. 2001). Sierra
Club’s SMCRA claims do not suffer from the same constitutional problem confronted in Bragg v. W. Va. Coal Ass’n,
248 F.3d 275 (4th Cir. 2001) and are akin to the claims for which jurisdiction was found to be proper in Molinary v.
Powell Mountain Coal Comp., 125 F.3d 231 (4th Cir. 1997).
3
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has violated conditions of the permit through discharges of pollutants into waters around Thunder
Ridge that exceed Kentucky’s numeric and narrative water quality standards. [R. 42 at 20-21
(citing 405 KAR 16:070 § 1(1)(g)); R. 42 at 4 (citing numeric water quality standards located at
401 KAR 10:031 § 6 tbl.1); R. 20 at 17 (citing narrative water quality standards located at 401
KAR 10:031 §§ 2(1)(d), 4(1)(f).] Sierra Club is permitted to bring this suit by the citizen suit
provision of the SMCRA. 30 U.S.C. § 1270(a)(1).
B.
The facts in this case are not a source of significant dispute, [R. 63 at 75-77], and are
outlined extensively in the parties’ briefs and attachments [See, e.g., R. 20 at 9-13; R. 42 at 6-11].
Sierra Club became aware that ICG was discharging selenium from the Thunder Ridge Mine when
ICG was in the process of obtaining an amended surface mining permit, allowing ICG to mine
additional acreage. [R. 42 at 7; R. 41, Ex. 4.] In obtaining approval to expand Thunder Ridge, ICG
also had to apply for a modification of its NPDES permit, which involved submitting water
samples from outfalls around the mine. The sample from outfall twenty revealed a selenium value
that exceeded Kentucky’s acute water quality standard [R. 42 at 7; R. 41, Ex. 5 at 8.] On
December 3, 2010, Sierra Club notified ICG that it intended to bring a citizen suit under the CWA
and SMCRA based on ICG’s discharge. [R. 40, Ex. 10.] That same day, Teri Blanton, with Sierra
Club’s support, sent a letter to the KDNR and the OSM requesting an inspection of KPDES
outfalls to test for selenium discharges. [R. 41, Ex. 12.] The OSM responded to Blanton’s letter by
issuing a Ten Day Notice. This notice was issued because OSM had “sufficient reason to believe a
violation” had occurred. [See R. 41, Ex. 13.]
KDNR responded to Sierra Club’s letter and the Ten Day Notice by conducting additional
testing on January 7, 2011. [R. 41, Ex. 13.] This testing was done at several ponds, two of which
4
contained selenium that exceeded the prescribed state standard, but the KDNR concluded in a
letter dated January 26, 2011 that “no violations of the applicable regulatory standards” took place.
[R. 41, Ex. 13 at 1.] In a subsequent letter addressed to the OSM, dated March 1, 2011, the KDNR
noted that two of ICG’s sediment structures had levels of selenium that exceeded Kentucky’s
chronic water quality standard of 5 µg/l. [R. 41, Ex. 14.] Consequently, the KDNR required ICG
to sample particular sediment structures for selenium during April, May, and June of 2011 “as a
preventive enforcement action” in accordance with “405 KAR 16:060 § (1)(3) and 405 KAR
16:070 § 1(1)(g).” [Id. at 1-2.] The KDNR indicated they would forward the results from those
samples to the OSM. [Id. at 2.]
The OSM, relying on KDNR’s actions, wrote to Sierra Club on March 22, 2011. That
letter summarized Blanton and Sierra Club’s claims and stated that OSM was satisfied that KDNR
had met the “good cause” justification provided for by 30 C.F.R. § 842.11(b)(1)(ii)(B)(1)-(4). The
OSM referenced KDNR’s inspection and made several conclusions and observations. First,
“[n]one of [KDNR’s] samples exceeded the acute limit of 20 µg/l.” [R. 40, Ex. 11 at 3.] Second,
although ICG’s KPDES permit only requires a one-time monitoring for, among other things,
selenium, in response to Sierra Club’s inquiry, the KDNR will require additional testing, as noted
above. [Id.] Third, and most importantly, OSM concluded that “no present violation exists,”
satisfying one of the necessary prongs for finding “good cause” and not taking enforcement action.
[Id.]
The April, May, and June testing indicated that particular discharges continued to exceed
Kentucky’s chronic standard for selenium. [R. 42 at 9; R. 41, Ex. 15.] Sierra Club engaged in
additional testing in November and December of 2011. Through the services of a private testing
company, Sierra Club found that discharges continued to exceed 5 µg/l of selenium in particular
5
locations. [R. 42 at 10; R. 41, Ex. 16-17.] One of the locations was Pond 1805A, which had been a
consistent source of excess selenium. A second location was not identified as specifically, only
being described as taken in Bonnet Rock Branch. [R. 42 at 11.]
II.
Two processes were set in place to help achieve the CWA’s goal of restoring and
maintaining the integrity of the waters of the United States. Ky. Waterways Alliance, 540 F.3d at
470 (quoting Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992)). First, the EPA is empowered to
establish limitations on “discharges into the country’s navigable waters from point sources.” Id.
(quoting PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 704 (1994)). The
NPDES permit (or KPDES permit) is the mechanism used to limit discharges, and it functions by
setting terms—e.g. limitations on the discharge of certain pollutants or testing requirements—with
which dischargers must comply. See 33 U.S.C. § 1342; see generally 40 C.F.R. § 122. Although
the permit limits dischargers, compliance with it also enables dischargers to utilize the permit
shield, 33 U.S.C. § 1342(k), which “constitutes an exception to the general strict liability of the
CWA.” Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., 268 F.3d 255, 267 (4th Cir.
2001). Second, each state is mandated to create “comprehensive water quality standards
establishing water quality goals for all intrastate waters.” Ky. Waterways Alliance, 540 F.3d at 470
(quoting PUD No. 1, 511 U.S. at 704)). The standards must be approved by the federal
government, and they ensure that waters are not unlawfully degraded by the aggregate of
discharges from NPDES-compliant parties. Id. (quoting PUD No. 1, 511 U.S. at 704)).
The CWA claim in this matter pertains to the NPDES system.4 Sierra Club claims that ICG
has discharged selenium from point sources into navigable waters without a permit. As a
For clarity’s sake, NPDES will be used when describing the CWA and its structure more broadly. KPDES will be
used when referring to the specific permit at issue in this case.
4
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foundation for its claim, Sierra Club cites the KPDES Coal General Permit, which ICG operates
under, and the effluent limitations5 it places on various pollutants, including suspended solids, iron,
and manganese, but importantly, not on selenium. [See, e.g., R. 40, Ex. 2 at 2.] Instead, the Coal
General Permit requires “each existing mining operation authorized by this general permit [to]
conduct and submit . . . a one-time analysis for . . . selenium.” [Id. at 16.] Sierra Club examines
the fact that ICG’s selenium discharges are not limited in their KPDES general permit through the
paradigm of a 1995 EPA policy statement on the scope of a permit shield and concludes that such
discharges are unpermitted and ICG is unshielded. [R. 42 at 24.] The Court draws a different
conclusion and denies Sierra Club’s motion for summary judgment as to Counts One and Two and
grants ICG’s motion for summary judgment on those counts.
A.
NPDES permits come in two forms—individual permits, 40 C.F.R. § 122.21, and general
permits, 40 C.F.R. § 122.28. For a period of time, individual permits were predominately used,
and in fact, it was unclear whether general permits were even statutorily permitted. Office of Water
Enforcement and Permits, U.S. Envtl. Prot. Agency, General Permit Program Guidance 1, 5 (1988)
[hereinafter General Permit Guidance]. Opinions in two cases in the 1970s approved the use of
general permits, and guidelines explaining the circumstances when general permits would be
available were then drafted. Id. at 5. The final regulations governing general permits were
published in 1979 and eventually codified in their current form at 40 C.F.R. § 122.28. General
Permit Guidance at 6-8.
“The term ‘effluent limitation’ means any restrictions established by a State or the Administrator on quantities, rates,
and concentrations of chemical, physical, biological, and other constituents, which are discharged from point sources
into navigable waters . . . .” 33 U.S.C. § 1362(11).
5
7
An individual permit is necessary if a discharger cannot or does not receive a general
permit. Id. at 9. Individual permits are written by the EPA or authorized state agency after
consideration of generally applicable effluent limits and an individual discharger’s disclosures.
Ketchikan Pulp Co., 7 E.A.D. 605, 1998 WL 284964, at *9 (1998) (cited by Piney Run
Preservation Ass’n, 268 F.3d at 268). Issuance of an individual permit, then, is a reactionary
measure by the permitting authority to a specific discharger’s application, including that
discharger’s disclosures.
In contrast, general permits are written without individual disclosure. General Permit
Guidance at 2-3. A general permit is typically issued upon the permitting authority’s initiative, but
a group of dischargers can also request to be covered by a general permit. Id. at 12. Regardless of
who initiates the general permitting process, a general permit is only able to be utilized when the
practices of the entire industry in a specific geographic area meet five criteria: the “categories or
subcategories of discharges . . . or disposal practices or facilities all”:
(A) Involve the same or substantially similar types of operations;
(B) Discharge the same types of wastes or engage in the same types of sludge use
or disposal practices;
(C) Require the same effluent limitations, operating conditions, or standards for
sewage sludge use or disposal;
(D) Require the same or similar monitoring; and
(E) In the opinion of the Director, are more appropriately controlled under a
general permit than under individual permits.
40 C.F.R. § 122.28(a)(2)(ii)(A)-(E); see also General Permit Guidance at 12-17. Although the
aforementioned similarities must be found, “the permit writer has the latitude to fashion the
general permit to cover varying operations, wastes, effluent, limitations and operating conditions,
and monitoring requirements.” General Permit Guidance at 20. After those criteria are met, “the
permit writer develops a draft general permit incorporating the necessary terms and conditions.”
Id. “Then, rather than apply for an individual permit, operators must file a Notice of Intent (NOI)
8
stating that they plan to operate under the general permit, and absent a negative ruling by the
agency, discharges that comply with the terms of the general permit are automatically authorized.”
Ky. Waterways Alliance, 540 F.3d at 482 n.10 (Clay, J. dissenting) (quoting Tx. Indep. Producers
& Royalty Owners Assoc. v. EPA, 410 F.3d 964, 968 (7th Cir.2005)).
The EPA believes that both dischargers and permitting authorities benefit from the
issuance of general permits. General Permit Guidance at 2-3, 33-35. Permits can be issued more
quickly because one permit can cover an entire category of dischargers. Id. at 2. This can reduce
paperwork for all parties and ensure that permits are timely issued. Id. In turn, permitting
authorities may be able to use newly available time to regulate dischargers that were previously
unpermitted. Id. Finally, dischargers are aided by avoiding, in most cases, the “sampling and
analysis associated with individual permit applications.” Id. at 3.
In spite of the different permitting processes, “[a] general permit is identical to an
individual permit regarding effluent limitation, water quality standards, monitoring and sampling
requirements, and enforceability.” Id. at 3-4. The enforceability is the same, but the process of
enforcement—including the use of the permit shield—must be different because of the distinct
way each permit is acquired.
B.
Permits place limits on the pollutants that may be discharged, but permits also protect
dischargers. This is accomplished through the “permit shield.” 33 U.S.C. § 1342(k). In du Pont de
Nemours & Co. v. Train, 430 US 112, 138 n.28 (1977), the Supreme Court discussed the shield: its
purpose 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. In short, § [1342](k) serves the purpose of giving permits finality.”
9
The scope of protection for dischargers with individual permits has been clearly stated and
includes all of the following:
1) Pollutants specifically limited in the permit or pollutants which the permit, fact
sheet, or administrative record explicitly identify as controlled through indicator
parameters;
2) Pollutants for which the permit authority has not established limits or other
permit conditions, but which are specifically identified in writing as present in
facility discharges during the permit application process and contained in the
administrative record which is available to the public; and
3) Pollutants not identified as present in the facility discharges but which are
constituents of wastestreams, operations or processes that were clearly identified in
writing during the permit application process and contained in the administrative
record which is available to the public.
EPA, Revised Policy Statement on Scope of Discharge Authorization and Shield Associated with
NPDES Permits, at 2-3 (1995) [hereinafter Revised Policy Statement]; see also Ketchikan Pulp
Co., 7 E.A.D. 605, 1998 WL 284964, at *9; Piney Run Pres. Ass’n., 268 F.3d at 268; Atlantic
States Legal Found., Inc. v. Eastman Kodak Comp., 12 F.3d 353 (2nd Cir. 1994) (predating the
Revised Policy Statement, but reaching a conclusion that was affirmed in Ketchikan Pulp Co.). In
simpler and more direct terms, the holder of an individual permit is able to discharge pollutants
within limits established by the permit, and a permit holder can lawfully discharge any pollutants
not listed as long as proper disclosure was made during the permitting process. Piney Run Pres.
Ass’n, 268 F.3d at 268 (citing Ketchikan Pulp Co.). Proper disclosure, of course, is judged by
whether facility discharges, wastestreams, operations, and/or processes were sufficiently identified.
Thus, at least in the context of an individual permit, it is clear that pollutants not listed in the
permit can be legally discharged.
Sierra Club concedes the aforementioned conclusion is accurate, but it believes the general
permit shield is different. Sierra Club’s position rests on two foundations, neither of which support
the argument being advanced.
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First, Sierra Club contends that the scope of the shield for general permits is narrower
because general permits are acquired with fewer disclosures: “[b]ecause the permitting authority
lacks detailed information about individual discharges when issuing a general permit, the scope of
a general permit is defined by the effluent limitations present in the permit.” [R. 42 at 24.] No
cited authority states that proposition, and there are several facts that undermine this argument.
The EPA’s General Permit Guidance document summarizes this idea. In it, the EPA states:
A general permit is identical to an individual permit regarding effluent limitations,
water quality standards, monitoring and sampling requirements, and enforceability.
The only difference from the permit writer’s standpoint is that a general permit
covers several point sources. Thus, general permits are fashioned just as individual
permits with monitoring and inspection and recordkeeping requirements. . . . Good
general permits are no less effective than individual permits; they simply cover
more than one discharger.
General Permit Guidance at 3-4.
A general permit’s issuance is only possible after the precedent findings of 40 C.F.R. §
122.28(a)(2)(ii) are completed. Once that five-part similarity finding is made, “the actual
development of the general permit can proceed just as for any individual permit.” General Permit
Guidance at 17. The only significant difference is that “a larger share of the responsibility for the
information gathering process leading up to the development of a general permit falls on the
permitting authority rather than on the permit applicants.” Id. at 33-34. Moreover, the EPA
explained that although the “same types of wastes” must be found to be eligible for a general
permit, general permitees can be subject to different effluent limitations and monitoring if
circumstances require. General Permit Guidance at 13-15. For instance, a general permit might
require different monitoring timelines or methods for particular dischargers. Id. at 15. Thus, by
virtue of being deemed eligible for a general permit, the permitting agency has held that it can
properly regulate a class of dischargers without “detailed information about individual
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disclosures,” but the permitting agency also has flexibility to institute specific control mechanisms
as necessary. Therefore, if a general permit is insufficient in some respect, the complaint should
be directed at the permitting authority.
Additional authority from 40 C.F.R. § 122.28(b)(2)(i)-(ii) bolsters this conclusion. There,
the EPA explains that “dischargers . . . seeking coverage under a general permit shall submit . . . a
written notice of intent to be covered by the general permit.” § 122.28(b)(2)(i). “A complete and
timely notice of intent to be covered in accordance with general permit requirements fulfills the
requirements for permit applications for purposes of §§ 122.6, 122.21,6 and 122.26.” Id.
Continuing, § 122.28(b)(2)(ii) stipulates that the general permit—authored by the permitting
agency—shall specify the information a notice of intent must include. Minimum informational
requirements are identified, and among those is that “information necessary for adequate program
implementation” must be included. § 122.28(b)(2)(ii). “Adequate program implementation,” albeit
specifically undefined, means implementation of the NPDES program—a program with the same
pollution requirements for both individual and general permits.7 The EPA thus requires general
permit writers to solicit information to the extent it is needed to ensure that permit seekers will
comply with the law. Any information deficit is the fault of the permit writer and the government
entities that approved that permit.
In summary, all dischargers subject to the CWA begin at the same point—in need of an
NPDES permit. Individual permits are uniquely crafted after a discharger applies to the permitting
agency and makes certain disclosures. A general permit is able to be issued after a permitting
agency concludes that sufficient similarities exist that one permit is capable of covering an entire
6
Section 122.21(a) is the most significant referenced regulation for it explains the permitting process, but excepts
general permits from falling under that section’s purview. See § 122.21(a)(1).
The title of this section is most indicative of the meaning of program: Ҥ 122.21-Application for a permit (applicable
to State programs, see § 123.25).”
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class of dischargers. If differences exist between dischargers that are eligible for a general permit,
the issuing agency is instructed to reconcile those differences and the requirements imposed by the
CWA through information requirements in the notice of intent. In the end, whether individual or
general, each permit must be written to comply with the CWA. To the extent individual
disclosures are necessary for a general permittee, it is the permit writer’s responsibility to request
that information. If proper information is not sought, that is the permit writer’s failing, and the
permitted party should not be subject to an enforcement action. See 45 Fed. Reg. 33290, 33311
(May 19, 1980) (If a permittee “complies with its permit, it will not be enforced against for
violating some requirement of the appropriate Act which was not a requirement of the permit.”).
Sierra Club’s second argument is based on the Revised Policy Statement’s description of
the shield for general permits:
Section 402(k) also shields discharges of pollutants authorized under a general
permit. EPA’s position is that general permits authorize the discharge of all
pollutants within the specified scope of a particular general permit, subject to all
pollutant limits, notification requirements and other conditions within a particular
general permit so long as the permittee complies with all EPA application
requirements for the general permit.
Revised Policy Statement at 3 (emphasis added). Sierra Club highlights “specified scope” as
language that distinguishes the shield for general and individual permits and restricts the pollutants
that can be discharged to only those listed in and limited by the general permit. [R. 42 at 24.]
As explained above, general and individual permits require the same levels of compliance
from permittees, and permittees are subject to the same types of enforcement. General Permit
Guidance at 3-4. In that context, it would be anomalous to hold that the permit shield would apply
13
differently based on the type of permit held by a discharger. That is especially true when the EPA
has unequivocally stated that a general permit and an individual permit are identical. Id.8
Precedent also squarely opposes Sierra Club’s argument.9 In Atlantic States, the plaintiff
pursued the same argument Sierra Club advances here: “the discharge of any pollutant not
specifically authorized” in the NPDES permit is prohibited. 12 F.3d at 356. The Second Circuit
reasoned that interpreting the regulatory framework of the NPDES in that way was opposite of the
manner in which it was meant to function. Id. at 357. Instead, “it is clear that the permit is
intended to identify and limit the most harmful pollutants while leaving the control of the vast
number of other pollutants to disclosure requirements.” Id. Indeed, “it is impossible to identify
and rationally limit every chemical or compound present in a discharge of pollutants.” Id. (quoting
another source). And, “[c]ompliance with such a permit would be impossible and anybody
seeking to harass a permittee need only analyze that permittee’s discharge until determining the
presence of a substance not identified in the permit.” Id. (quoting another source).
Subsequent cases cited Atlantic States favorably, and offered additional explanation for its
conclusion. In Ketchikan Pulp Co., the EPA explained:
Although in theory the Agency could structure permits to prohibit the
discharge of all pollutants except those listed in the permit, such an approach would
require the Agency to include in the permit a list of every pollutant or combination
of pollutants that conceivably might be contained in the applicant’s wastestreams,
and to determine which of those pollutants the Agency considered appropriate for
discharge. Since any given wastestream may contain hundreds of pollutants, such a
permit-writing approach would be unduly burdensome and costly, and ultimately,
impractical. As the Agency has acknowledged: it is impossible to identify and
Additional support for the conclusion that Sierra Club is in error is provided by the ambiguity of “specified scope.”
While in a vacuum “specified scope” may be open to Sierra Club’s interpretation, it is at least as likely that it means
something else. For instance, “specified scope” could refer to the geographic limitations of the permit. See 40 C.F.R. §
122.28(a)(1). It could also be referencing the class or category that the general permit is covering: for example,
“offshore oil and gas exploration, development, and production facilities,” “non-contact cooling water,” or “seafood
processing.” General Permit Guidance at 12-13; see also § 122.28(a)(2).
8
9
Although the Court notes that the cases from which the following passages are taken involved individual permits, in
accordance with the preceding discussion, the Court finds that inconsequential.
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rationally limit every chemical or compound present in a discharge of pollutants.
Consequently, the Agency has determined that the goals of the CWA may be more
effectively achieved by focusing on the chief pollutants and wastestreams
established in effluent guidelines and disclosed by permittees in their permit
applications, rather than by attempting to identify the hundreds or thousands of
pollutants potentially present in permittees’ wastestreams.
7 E.A.D. 605, 1998 WL 284964, at *9 (internal quotation marks omitted); see also Piney Run
Pres. Ass’n, 268 F.3d at 255 (adopting the EPA’s conclusion in Ketchikan after subjecting it to a
Chevron analysis). In clearer parlance, “polluters may discharge pollutants not specifically listed
in their permits so long as they comply with the appropriate reporting requirements and abide by
any new limitations when imposed on such pollutants.” Ketchikan Pulp Co., 7 E.A.D. 605, 1998
WL 284964, at *10 (quoting Atlantic States, 12 F.3d at 357).
As acknowledged, disclosure requirements are different for individual and general permits.
But they are different only insofar as which party bears the burden for disclosure. For an
individual permit, the discharger must disclose all chemicals, wastestreams, and processes, and it
receives protection by the shield if it does so. With regard to general permits, the permitting
agency bears the burden for understanding the pollutants that might be discharged and writing the
permit with appropriate limitations. Further, through the notice of intent process, the permitting
agency can ask dischargers for specific information, and to obtain coverage under the general
permit, that information must be disclosed. Therefore, while the process for disclosure under each
permit is unique, the result is the same.
Summary judgment is appropriate where “the pleadings, discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); Celotex Corp. v.
Catrett, 477 U.S. 317, 323-25 (1986). “A genuine dispute exists on a material fact, and thus
summary judgment is improper, if the evidence shows ‘that a reasonable jury could return a verdict
15
for the nonmoving party.’” Olinger v. Corp. of the President of the Church, 521 F. Supp. 2d 577,
582 (E.D. Ky. 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Because there is no factual question and the law favors ICG’s position, Sierra Club’s motion is
denied on Counts One and Two10 and ICG’s motion is granted.11
III.
A.
The SMCRA, 30 U.S.C. § 1256, requires any person engaging in surface coal mining to
obtain a permit. As noted, states can receive authority from the OSM to issue surface mining
permits, § 1256(a), but the state permitting program must be conducted to carry out the provisions
of the SMCRA, § 1253(a). Kentucky operates an OSM-approved permitting program through the
KDNR, and ICG possesses a surface mining permit [R. 41, Ex. 4].
Sierra Club alleges that ICG violated its SMCRA permit in three ways. In Count Three,
Sierra Club argues that ICG’s selenium discharges exceeded the legal amount. In Count Four,
Sierra Club argues that the specific conductance of waters into which ICG discharged exceeded the
permissible narrative standards for that pollutant.12 As a result of the aforementioned discharges,
Sierra Club claims in Count Five that ICG is in violation of its obligation to install treatment
facilities.
ICG opposes Sierra Club’s claims by utilizing the CWA’s permit shield: “[t]he mere fact
that Sierra characterizes its claims for violations related to selenium and conductivity as SMCRA
claims, rather than CWA claims, does not allow it to side-step the CWA’s permit shield.” [R. 40,
10
Sierra Club acknowledges that if no CWA violation is found on Count One it cannot prevail on Count Two. [R. 46
at 12 n.2.]
11
Because the Court concluded that ICG was allowed to discharge selenium under its general permit, examining the
parties’ “reasonable contemplation” argument is unnecessary.
12
Sierra Club has not moved for summary judgment on this count. [R. 42 at 1.]
16
Ex. 1 at 21.] “The [SMCRA] cannot serve as a vehicle to impose effluent limits or enforce water
quality standards where the CWA does not authorize such action.” [Id.] ICG believes the shield is
applicable to the SMCRA because of Section 702 of the SMCRA (30 U.S.C. § 1292(a), (3)).
Therein, Congress defined the relationship between the SMCRA and the CWA:
“Nothing in this Act shall be construed as superseding, amending,
modifying, or repealing . . . any of the following Acts or with any rule or regulation
promulgated thereunder, including, but not limited to . . . [the CWA], as amended,
the State laws enacted pursuant thereto, or other Federal laws relating to the
preservation of water quality.”
30 U.S.C. § 1292.
Sierra Club counters that argument by distinguishing effluent limitations, which are
established in accordance with the CWA, and water quality standards, which are relevant to both
the CWA and the SMCRA. [R. 46 at 13-14.] To read compliance with effluent limitations as
compliance with water quality standards, Sierra Club states, is to render portions of the SMCRA
surplusage—a result Congress could not have intended. The Court finds that Sierra Club is wrong
on this point with regard to discharges from point sources. To hold otherwise would violate §
1292 of the SMCRA. However, ICG is denied summary judgment because of facts presented by
Sierra Club showing that water quality standards may have been violated by nonpoint source
discharges from “areas disturbed by surface mining activities.” 30 C.F.R. § 816.42; see also 405
KAR 16:070 § 1(1)(g), (2). Because these factual and legal issues are unresolved, the Court finds
that neither party is entitled to judgment as a matter of law on Counts Three, Four, or Five.
B.
Congress clearly anticipated that the SMCRA and CWA would intersect and overlap at
certain points. One of these designed intersections is that before the OSM can delegate its
permitting authority under the SMCRA to a state, that state’s program must be approved by the
17
EPA. EPA approval is contingent on whether the state program will be carried out in accordance
with the CWA’s water quality regulations identified below. § 1253(b)(2).
The CWA regulates water quality through the use of effluent limitations and water quality
standards. “‘Effluent limitations . . . restrict the quantities, rates, and concentrations of specified
substances which are discharged from point sources.” Arkansas v. Oklahoma, 503 U.S. 91, 101
(1992) (citing 33 U.S.C. §§ 1311, 1314). The permitting agency must set effluent limits if
pollutants contained in a discharger’s outflow “are or may be discharged at a level which will
cause, have the reasonable potential to cause, or contribute to an excursion above any State water
quality standard, including State narrative criteria.” 40 C.F.R. § 122.44(d)(1)(i). If a permitting
agency conducts the “reasonable potential analysis” and finds that a standard could be violated,
permit limitations must be established to ensure compliance. Nat’l Mining Ass’n v. Jackson, 2012
WL 3090245, at *2 (D.D.C. July 31, 2012) (citing Am. Paper Inst. v. EPA, 996 F.2d 346, 349
(D.C. Cir. 1993).
“‘Water quality standards’ are, in general, promulgated by the States and establish the
desired condition of the waterway.” Arkansas, 503 U.S. at 101 (citing 33 U.S.C. § 1313). Section
1313 of the CWA required the establishment of these standards, and it mandates that the
standards—either numeric or narrative—receive regular review. § 1313(c). These standards are
significant for they form the rubric against which a discharger’s effluent is compared. That is,
“water quality standards by themselves have no effect on pollution; the rubber hits the road when
the state-created standards are used as the basis for specific effluent limitations in NPDES
permits.” Am. Paper Inst., 996 F.2d at 350 (quoted by Nat’l Mining Ass’n, 2012 WL 3090245, at
*3).
18
Kentucky operates an OSM-approved permitting program through the KDNR, and ICG
possesses a surface mining permit [R. 41, Ex. 4]. ICG’s surface mining permit is conditioned upon
acceptance of a litany of requirements—as all surface mining permits are—including that “[t]he
permittee shall comply fully with all terms and conditions of the permit and all applicable
performance standards of KRS Chapter 350 and 405 KAR Chapters 7 through 24.” 405 KAR
8:010 § 18(1)(a). Several regulations of particular relevance to this matter include:
405 KAR 16:060 § 1, (3): “All surface mining activities shall be planned and
conducted to minimize disturbance of the hydrologic balance in both the permit
area and adjacent areas . . . . In no case shall federal and state water quality statutes,
regulations, standards, or effluent limitations be violated.”
405 KAR 16:060 § 6(1), (c): “Surface water quality shall be protected by handling
earth materials, groundwater discharges, and run-off in a manner that . . . will not
cause or contribute to a violation of any federal or state effluent limitations or water
quality standards.”
405 KAR 16:070 § 1(1)(g), (2): “Discharges of water from areas disturbed by
surface mining activities shall at all times be in compliance with all applicable
federal and state water quality standards and . . . the effluent limitations established
by the KPDES permit for the operation.”
405 KAR 16:070 § 1(2): “Adequate facilities, in addition to sedimentation ponds,
shall be installed, operated, and maintained to treat any water discharged from
disturbed areas when necessary to ensure that the discharge complies with all
federal and state laws and regulations and the limitations of this administrative
regulation.” See also 405 KAR 16:060 § 6(2).
Kentucky’s water quality standards are located at 401 KAR 10:031. Numeric standards are listed
at 401 KAR 10:031 § 6 tbl.1, and selenium is among the listed pollutants which have restrictions
on them with regard to the permissible instream concentrations. For selenium, the acute
concentration must fall below 20 µg/L, and the chronic concentration must not exceed 5 µg/L.13
Narrative water quality standards are important for this matter with regard only to specific
conductance. 401 KAR 10:031 § 4(1)(f) (see also 401 KAR 10:031 § 2(1)(d)) limits specific
Acute criteria, according to 401 KAR 10:031 § 6 tbl.1 n.6, is “protective of aquatic life based on one (1) hour
exposure that does not exceed the criterion for a given pollutant. Chronic criteria, according to 401 KAR 10:031 § 6
tbl.1 n.7 is “protective of aquatic life based on ninety-six (96) hour exposure that does not exceed the criterion of a
given pollutant more than once every three (3) years on the average.”
13
19
conductance such that its level “shall not be changed to the extent that the indigenous aquatic
community is adversely affected.”
C.
Effluent limitations and water quality standards are undoubtedly distinct concepts. “Water
quality standards are provisions of State or Federal law which consist of a designated use or uses
for the waters of the United States and water quality criteria for such waters based upon such
uses.” 40 C.F.R. § 131.3(i). “Criteria are elements of State water quality standards, expressed as
constituent concentrations, levels, or narrative statements, representing a quality of water that
supports a particular use.” § 131.3(b). Effluent limitations, meanwhile, are “restriction[s]
established by a State or the Administrator on quantities, rates, and concentrations of chemical,
physical, biological, and other constituents which are discharged from point sources into navigable
waters.” 33 U.S.C. § 1362(11). This distinction is evident in the development of federal water
pollution control laws, as explained in EPA v. Cal. ex rel. State Water Res. Control Bd., 426 U.S.
200, 202-04 (1976). See also Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204
F.3d 149,151-52 (4th Cir. 2000)
Before the CWA was enacted, federal water pollution regulation—both in setting
performance standards and justifying enforcement actions—was based on water quality standards.
State Water Res. Control Bd., 426 U.S. at 202. Enforcing standards under that system was
problematic, foremost because it was difficult to assign culpability to the particular polluter(s) that
caused the water quality standards to be exceeded. Id. at 202-03. This problem, among others,
caused Congress to seek a different solution to minimize water pollution. Id. at 203. Congress
concluded that regulating the source of the pollution was a better system, “making it unnecessary
to work backward from an overpolluted body of water to determine which point sources are
20
responsible and must be abated.” Id. at 204. In achieving that end, the CWA was enacted, and
with it, two important developments. Id. First, polluters would be regulated directly and
individually through the imposition of effluent limitations on point sources. Id. Second, NPDES
permits would be the vehicles through which “generally applicable effluent limitations and other
standards including those based on water quality” would be transformed into specific effluent
limitations. Id. In sum, “the permit defines, and facilitates compliance with, and enforcement of, a
preponderance of a discharger’s obligations under the [CWA].” Id.; see also Piney Run Pres.
Ass’n, 268 F.3d at 265 (citing Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204
F.3d 149, 151 (4th Cir. 2000)); Am. Paper Inst., 996 F.2d at 350 (quoted by Nat’l Mining Ass’n,
2012 WL 3090245, at *3); Ketchikan Pulp Co., 7 E.A.D. 605, 1998 WL 284964, at *9.
Thus, at one time, water quality standards served as the benchmark for water pollution
control and enforcement. That was an ineffective mechanism resulting in a revised system
whereby water quality standards are foundational to pollution control but have a minimal role in
enforcement. Compliance, or lack thereof, with NPDES permits is now the enforcement tool for
the CWA.
This is significant for it undermines, in part, Sierra Club’s contention that violations of
water quality standards are subject to enforcement under the SMCRA. As outlined, it is clear that
Kentucky’s SMCRA-related regulations require surface mining operations to comply with state
water quality standards. Equally explicit is that when the SMCRA is in conflict with the CWA, the
CWA prevails: “where the [SMCRA’s] regulation of surface coal mining’s hydrologic impact
overlaps the EPA’s, the Act expressly directs that the [CWA] and its regulatory framework are to
control so as to afford consistent effluent standards nationwide.” In re Surface Mining Regulation
Litigation, 627 F.2d at 1367; 30 U.S.C. § 1292(a)(3). Three conflicts between the CWA and the
21
SMCRA were discussed in In re Surface Mining Regulation Litigation and provide useful
illustrations in guiding this Court’s decision.
First, the EPA, pursuant to the CWA and its related regulations, provided for a “variance
from numerical effluent limitations where special need is demonstrated because it is possible that
data which would affect these limitations have not been available.” 627 F.2d at 1367. The OSM
did not include that variance as it implemented the SMCRA through various regulations. Id. In
essence, the SMCRA and CWA overlapped and the SMCRA set a stricter standard than the CWA.
Id. The court explained that even Congress’s desire to avoid variances in the SMCRA could not
trump the relationship it established between these two statutes. Id.
Second, the EPA, under the CWA, exempted dischargers from compliance with effluent
limitations due to overflow from sediment control facilities if those facilities were constructed to
contain a “10-year, 24-hour precipitation event.” Id. at 1368. Under that set of facts, the discharger
was absolved of any responsibility if an overflow occurred. Regulations enacted by the OSM,
however, only excused this type of violation if the discharger proved the particular precipitation
event occurred. Id. Moreover, the EPA permitted an overflow due to any precipitation event,
while the OSM stated the event had to be caused by rainfall. Id. This regulation was suspended
during the pendency of the litigation, so the District of Columbia (DC) Circuit refrained from
deciding this particular issue, but the court reiterated that the SMCRA and its regulations must not
“conflict with the effective EPA provisions as they apply to surface mining operations.” Id.
The third conflict examined in In re Surface Mining Regulation Litigation centered on
measurement of suspended solids in waters that passed through surface mines. Id. at 1368-69. The
EPA purportedly measured the suspended solids in the water after the mine discharged it and then
subtracted pollutants that were present in the water when it arrived at the mine site. Id. The OSM
22
sought to implement a system in which the concentration of suspended solids was calculated after
discharge from the mine site, with no allowance given for pre-existing pollutants. Id. The court
concluded that this issue needed clarification and so resisted ruling on it specifically, choosing
instead to restate the general proposition that an exemption offered by the EPA cannot be modified
or repealed by the SMCRA or implementing regulations.
The factual situation here mirrors that from In re Surface Mining Regulation Litigation. It
is abundantly clear that water quality standards and effluent limitations are different. Statutory
amendments tied these two concepts together in a way that now makes them intimately related:
effluent limitations are premised on water quality standards and incorporated into NPDES (and
state equivalent) permits. Once an NPDES permit has been issued, assuming a discharger
complies with the permit’s requirements, water quality standards lose their importance, at least for
a case against a discharger.
Building on that foundation, both parties agree that ICG possessed a valid KPDES permit,
and the Court has already held that ICG was in compliance with that permit. Thus, as between
these two parties in an enforcement action, effluent limitations have made water quality standards
irrelevant. In other words, water quality standards formed the basis for the effluent limitations
imposed on ICG and then effectively “dropped out.” And whether appropriate limitations were
imposed to begin with is not a justiciable issue. In conclusion, to hold that water quality standards
for point source discharges are subject to enforcement would modify and/or supersede the NPDES
system and impact the CWA in a manner that would violate § 1292 of the SMCRA.
D.
Although the CWA extensively regulates water pollution, it does have “gaps” the SMCRA
is authorized to fill. “[W]here the [CWA] and its underlying regulatory scheme are silent so as to
23
constitute an ‘absence of regulation’ or a ‘regulatory gap’, the [OSM] may issue effluent
regulations without regard to EPA practice” to the extent authorized by the SMCRA. In re Surface
Mining Regulation Litigation, 627 F.2d at 1367. In In re Surface Mining Regulation Litigation, the
DC Circuit pointed out that variances and exemptions available under the CWA do not constitute
gaps that the SMCRA can fill. Id. at 1369. One of the gaps the court specifically identified as
being open to SMCRA regulation was discharges from nonpoint sources—those being any
discharge “not emanating from a ‘discernible, confined, and discrete conveyance.’” Id. at 1367
(citing 33 U.S.C. § 1362(14)). 30 C.F.R. § 816.42, premised on the SMCRA, broadly addresses
this gap, requiring “discharges of water from areas disturbed by surface mining activities shall be
made in compliance with all applicable State and Federal water quality laws and regulations and
with the effluent limitations for coal mining promulgated by the [EPA].” See also 405 KAR
16:070 § 1(1)(g), (2); 30 C.F.R. § 715.17.
Since In re Surface Mining Regulation Litigation was decided, the obvious gap in
regulation of nonpoint sources by the CWA has lessened. This is the result of a 1987 amendment
to the CWA that addressed nonpoint source pollution and established requirements for states
regarding this matter. 33 U.S.C. § 1329 (codifying Water Quality Act of 1987, Pub. L. No. 100-4,
§ 319, 100 Stat. 7, 52). As a result, determining whether the SMCRA-based regulations can be
enforced on nonpoint sources has become more complicated.
The 1987 amendments introduced two significant provisions. First, 33 U.S.C. 1251(a) was
amended to include a new objective for the CWA. Section 1251(a)(7) was added, and it reads: “it
is the national policy that programs for the control of nonpoint sources of pollution be developed
and implemented in an expeditious manner so as to enable the goals of this Act to be met through
24
the control of both point and nonpoint sources of pollution.” See Water Quality Act of 1987, Pub.
L. No. 100-4, § 319, 100 Stat. 7, 60.
Second, 33 U.S.C. § 1329 has numerous sections, but two seem to potentially influence this
proceeding. Section 1329(a)(1) mandates that “each state shall, after notice and opportunity for
public comment, prepare and submit to the Administrator for approval, a report which” provides
information about waters that are affected by nonpoint source pollution to such a degree that
additional action will be required for those waters to meet relevant water quality standards.
Further, the report should identify the nonpoint sources, at least by category, that are most
responsible for the pollution. § 1329(a)(1)(B). Subsection (a)(1)(C) instructs that the report
should:
describe[] the process, including intergovernmental coordination and public
participation, for identifying best management practices and measures to control
each category and subcategory of nonpoint sources and, where appropriate,
particular nonpoint sources identified under subparagraph (B) and to reduce, to the
maximum extent practicable, the level of pollution resulting from such category,
subcategory, or source.
Finally, (a)(1)(D) asks for states to identify any state or local programs already in place
possessing the goal of nonpoint source pollution control.
Section 1329(b), in general, requires states to submit a program designed to control
nonpoint source pollution and improve water quality. The program, then, receives review
and approval from the EPA. § 1329(b)(1). Although implementation of the pollution
management program appears to be binding, subsequent provisions of
§ 1329(b)
suggest that states could avoid adhering to the program because a state possessed
inadequate authority under its laws, among other reasons. See, e.g. § 1329(b)(2)(D).
Sierra Club v. Meiburg, 296 F.3d 199, 224 (11th Cir. 2002), described § 1329 as
“generally leav[ing] regulation of non-point source discharges through the implementation
25
of [total maximum daily loads] to the states.” See also Cordiano v. Metacon Gun Club,
Inc., 575 F.3d 199, 224 (2d. Cir. 2009). Meiburg summarizes § 1329 as imposing planning
requirements that must be EPA-approved, and once approval has been given, states can
avail themselves of grants from the EPA that facilitate program implementation. Id.
National Res. Defense Council v. EPA, 915 F.2d 1314, 1318 (9th Cir. 1990), explains that §
1329 operates through incentives, providing grants to help states adopt nonpoint source
management programs, rather than measures that punish noncompliance. Accord Or.
Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1097 (9th Cir. 1998).
The extent of the CWA’s regulatory power over nonpoint sources and the relationship
between that power and the SMCRA is a salient issue in this litigation because of an ambiguous
factual issue. In Sierra Club’s motion for summary judgment as to Count Three, several locations
are listed as discharging selenium in violation of Kentucky’s regulations. [R. 42 at 10-11.] All but
one of the listed locations is clearly a point source. [Id.] The final location listed is described as
“Bonnet Rock Branch.” [Id. at 11; R. 41, Ex. 17.] It is distinct because of the lack of a particular
pond number associated with it. Neither party elaborated on where this sample was taken, but due
to the preceding discussion, it is obvious that the determination about whether this is a point or
nonpoint source could be critical.
Sierra Club did not move for summary judgment on Count Four, but ICG did. ICG,
therefore, has the burden of demonstrating the basis for its motion and identifying those parts of
the record that establish the absence of a genuine issue of material fact. Chao v. Hall Holding Co.,
Inc., 285 F.3d 415, 424 (6th Cir. 2002). The movant may satisfy its burden by showing “that there
is an absence of evidence to support the non-moving party’s case.” Celotex Corp., 477 U.S. at 325.
In applying the summary judgment standard, the Court must review the facts and draw all
26
reasonable inferences in favor of the non-moving party. Logan v. Denny’s, Inc., 259 F.3d 558, 566
(6th Cir. 2001) (citing Liberty Lobby, 477 U.S. at 255).
The same issue—ascertaining the type of discharge—exists for Count Four as it did with
Count Three. Sierra Club alleges that ICG violated narrative water quality standards by
discharging water “of specific conductance at levels that cause adverse effects on aquatic
invertebrates.” [R. 20 at 17.] The facts and law surrounding this claim are much less-developed
than those for Count Three, but evidence suggests that nonpoint discharges may provide a basis for
this claim. For example, in one of Sierra Club’s filings, one of the measurements is described as
“Roundhole Branch Upstream of Pond 1807.” [R. 41, Ex. 16 at 8.]14 To avoid ruling on an issue
that may not be before the Court, judgment will not be rendered in either party’s favor on Counts
Three and Five, nor in ICG’s favor for Count Four . Upon further elucidation of the facts and law,
summary judgment motions may be reconsidered.
IV.
Accordingly, and the Court being otherwise sufficiently advised, it is hereby ORDERED
as follows:
(1)
Summary judgment is GRANTED in favor of ICG with regard to Counts One and
Two [R. 40];
(2)
Sierra Club’s Motion for Summary Judgment as to Counts One and Two is
DENIED [R. 41];
(3)
ICG’s Motion for Summary Judgment as to Counts Three, Four, and Five is
DENIED [R. 40]; and
14
Resolution of Count Five is dependent upon violations of Counts Three and/or Four. Accordingly,
judgment is denied on this count pending resolution of the previous two counts.
27
(4)
Sierra Club’s Motion for Summary Judgment as to Counts Three and Five is
DENIED [R. 41].
This 28th day of September, 2012.
28
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