Southern Appalachian Mountain Stewards et al v. Red River Coal Company Inc

Filing 19

OPINION and ORDER denying 6 Motion to Dismiss for Failure to State a Claim. Signed by Judge James P. Jones on 9/9/14. (flc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
SOUTHERN APPALACHIAN
MOUNTAIN STEWARDS, ET AL.,
Plaintiffs,
v.
RED RIVER COAL COMPANY, INC.,
Defendant.

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Case No. 2:14CV00024
OPINION AND ORDER
By: James P. Jones
United States District Judge

Benjamin A. Luckett and Isak Howell, Appalachian Mountain Advocates,
Lewisburg, West Virginia, for Plaintiffs; Brooks M. Smith, Troutman Sanders LLP,
Richmond, Virginia, and Stephen M. Hodges and Seth M. Land, Penn, Stuart &
Eskridge, Abingdon, Virginia, for Defendant.
In this citizens’ suit under the Clean Water Act (“CWA”), 33 U.S.C. §§
1251–1387, the plaintiffs allege that the defendant coal mining company has
violated National Pollution Discharge Elimination System (“NPDES”) permits for
four of its mines because it has exceeded allowable discharges into the South Fork
of the Pound River, a stream located in this judicial district that is subject to a Total
Maximum Daily Load (“TMDL”) developed by the state environmental agency. 1
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A TMDL describes a value of the maximum amount of a pollutant that a body of
water can receive while still meeting water quality standards under section 303(d) of the
CWA, codified in 33 U.S.C. § 1313(d). Under section 303(d), states are required to
adopt water quality standards and list waters within their boundaries that are not meeting
these standards. Along with this 303(d) list, states must develop a TMDL for each
pollutant that is impairing the waters, “established at a level necessary to implement the
applicable water quality standards.” 33 U.S.C. § 1313(d)(1)(C). “A core requirement of
any TMDL is to divide sources of contamination along the water body by specifying load

Section 505(a) of the CWA, 33 U.S.C. § 1365(a), authorizes citizens “to bring suit
against any NPDES permit holder who has allegedly violated its permit.” Friends
of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 152 (4th Cir.
2000) (en banc).
The defendant coal company has moved to dismiss the Complaint on two
grounds: (1) that the TMDL requirements are not incorporated into the NPDES
permits at issue; and (2) that in any event, the court should abstain from asserting
jurisdiction over the case under the doctrine of Burford v. Sun Oil Co., 319 U.S.
315 (1943).
After careful consideration of the parties’ arguments, I will deny the Motion
to Dismiss because further development of the record is necessary.
The NPDES permits in this case all contain the following condition, referred to
as the (n)(3) condition: “The discharge of any pollutant(s) from this facility that
enters into a water body with an existing and approved Total Maximum Daily Load
(TMDL) must be made in compliance with the TMDL and any applicable TMDL
implementation plan.” (Pl.’s Br. Ex. 1, p. 5.) It appears that the TMDL for the South

Fork of the Pound River was dated after the issuance of these permits. The
allocations, or LAs, to predict inflows of pollution from particular non-point sources; and to then
set[] wasteload allocations, or WLAs, to allocate daily caps among each point source of
pollution.” Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 248-49 (D.D.C. 2011).
The state must submit the TMDL to the federal Environmental Protection Agency for approval,
and the EPA must approve it or create its own TMDL. 33 U.S.C. § 1313(d)(2); 40 C.F.R.
§ 130.7(d).

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defendant argues that the plain language of the (n)(3) condition, as well as the
purposes and history of the TMDL process, dictate a finding that it cannot be held
to the requirements of a TMDL that did not exist at the time of the issuance of its
permits.
When interpreting NPDES permits, courts use contract law principles.
Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md., 268 F.3d 255, 269
(4th Cir. 2001). If “the language is plain and capable of legal construction, the
language alone must determine” the permit’s meaning. FDIC v. Prince George
Corp., 58 F.3d 1041, 1046 (4th Cir. 1995).

If the language “is ambiguous,

however, then we must look to extrinsic evidence to determine the correct
understanding of the permit.” Piney Run Pres. Ass’n, 268 F.3d at 270.
The construction of an ambiguous contract term “‘is a question of fact
which, if disputed, is not susceptible of resolution under a motion to dismiss for
failure to state a claim.’” Horlick v. Capital Women’s Care, LLC, 896 F. Supp. 2d
378, 394 (D. Md. 2011) (quoting Wolman v. Tose, 467 F.2d 29, 34 (4th Cir.
1972)); see also Martin Marietta Corp. v. Int’l Telecomms. Satellite Org., 991 F.2d
94, 97 (4th Cir.1992) (reversing trial court’s grant of a motion to dismiss because
contract was “not free from ambiguity”).
I find that the permit language in question does not plainly lead to the
defendant’s proposed meaning. Accordingly, further amplification of the record is
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needed in order to accurately determine whether the permits require compliance
with the TMDL.
The defendant further argues that the court should dismiss the case under the
Burford abstention doctrine, where a case presents “difficult questions of state law
bearing on policy problems of substantial public import whose importance
transcends the result in the case then at bar, or if its adjudication in a Federal forum
would be disruptive of state efforts to establish a coherent policy with respect to a
matter of substantial public concern.” Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 726-27 (1996) (internal quotation marks and citations omitted).
The abstention decision is a discretionary one. MLC Auto., LLC v. Town of
S. Pines, 532 F.3d 269, 280 (4th Cir. 2008). However, “although the standard is a
deferential one, the discretion to abstain is tempered by the truism that the federal
courts have a virtually unflagging obligation to exercise their jurisdiction” and
“[t]here is little or no discretion to abstain in a case which does not meet traditional
abstention requirements.”

Id. at 280 (internal quotation marks and citations

omitted).
As with the permit language issue, abstention here implicates questions of
fact that cannot be resolved on the present record. For that reason, I will decline to
dismiss the case. It is possible that further factual development will present a case
for abstention, although I certainly make no prediction in that regard.
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For the reasons stated, it is ORDERED that the Motion to Dismiss (ECF No.
6) is DENIED.

ENTER: September 9, 2014
/s/ James P. Jones
United States District Judge

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