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

Filing 35

OPINION and ORDER denying 27 Plaintiffs' Motion for Summary Judgment; and granting 25 Defendant's Motion for Summary Judgment. Signed by Judge James P. Jones Modified on 4/14/2015 to correct signing Judge to reflect Judge Jones (ejs).

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.
This is a citizens’ suit under the Clean Water Act (“CWA”), 33 U.S.C.
§§ 1251-1387. The plaintiffs, several environmental organizations (“Plaintiffs”),
allege that the defendant, Red River Coal Company (“Red River” or “Defendant”),
has violated a condition of its National Pollution Discharge Elimination System
(“NPDES”) permits for coal mines located in this judicial district. 1 Section 505(a)
of the CWA, 33 U.S.C. § 1365(a), authorizes citizens “to bring suit against any
1

Plaintiffs alleged in their Complaint that Red River had violated the NPDES
permits at four of its coal mines. Thereafter, Red River provided Plaintiffs with evidence
that the discharge points supporting Plaintiffs’ allegations as to three of the permits have
been removed. Therefore, Plaintiffs move for summary judgment solely for ongoing
violations in relation to the one remaining permit. (Pls.’ Mem. in Supp. 1 n.1, ECF No.
28.)

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 parties have now filed cross motions for summary judgment, which
motions have been fully briefed and argued and are ripe for decision. Plaintiffs
seek at this point a declaration and order from the court enjoining future violations
of Red River’s permit, with civil penalties to be later determined; Red River seeks
judgment in its favor on the whole case.
The disputes centers on the parties’ competing interpretations of a
boilerplate condition of all of Red River’s NPDES permits, referred to as
“Condition (n)(3).” 2

Condition (n)(3) provides that “[t]he 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.” (ECF No. 13-1 at 5).
Plaintiffs contend that the plain meaning of this provision incorporates a TMDL
later-developed by the Virginia Division of Mined Land Reclamation (“DMLR”)
and approved by the Environmental Protection Agency (“EPA”).

Plaintiffs

contend that discharges by Red River are higher than the allowable discharges set
2

Condition (n)(3) is one of many standard conditions contained in a 10-page
state agency document entitled “DMLR NPDES Permit Conditions,” dated January 3,
2003. (ECF No. 13-1.)
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forth in the TMDL. 3 Thus, Plaintiffs assert that Red River’s discharges violate
Condition (n)(3) of the NPDES permit. Red River argues that the TMDL is not
directly binding through Condition (n)(3) of the NPDES permit, but rather that the
proper interpretation of the condition requires phased implementation of such
standards, as overseen by DMLR. Red River contends it is thus in complete
compliance with the permit conditions. 4
Earlier in this case, I denied Red River’s Motion to Dismiss, on the ground
that further development of the factual record was necessary.

S. Appalachian

Mountain Stewards v. Red River Coal Co., No. 2:14CV00024, 2014 WL 4462427,
at *2 (W.D. Va. Sept. 10, 2014). Since that decision, Red River has produced
further evidence of DMLR’s interpretation of the permit language, as well as the
opinions of agency officials that Red River is in compliance with the permit
conditions. Plaintiffs do not challenge the fact of the agency’s interpretation of the
permit conditions or the relevant statutes, but merely Red River’s compliance with
the permit. Therefore, there is no genuine issue of material fact to preclude

3

In particular, Plaintiffs contend that Outfall 006T of Permit 0081272 has
discharged Total Suspended Solids (“TSS”) and Total Dissolved Solids (“TDS”) in
excess of the daily and annual Wasteload Allocations (“WLA”) limits set forth in the
TMDL. Defendant does not dispute these calculations.
4

Red River also argues that it would violate due process to require it to comply
with standards of which it did not have fair notice at the time of its permit. (Def.’s Mem.
in Supp. 9, ECF No. 26.) It is not necessary for me to consider this argument.
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summary judgment. I find that Red River is entitled to summary judgment in its
favor.
I.
The NPDES system is an exception to the CWA’s general prohibition of the
“discharge of any pollutant by any person.” 33 U.S.C. § 1311(a). The CWA
authorizes the EPA to issue NPDES permits that “define[], and facilitate[]
compliance with, and enforcement of,” a discharger’s obligations to comply with
the general water quality standards enumerated in the CWA. EPA v. Cal. ex rel.
State Water Res. Control Bd., 426 U.S. 200, 205 (1976). The CWA authorizes the
EPA to delegate to states the authority to administrate their own NPDES programs
to govern discharges within their borders, subject to EPA approval. See 33 U.S.C.
§ 1342(b); see also Ohio Valley Envtl. Coal. v. Miano, 66 F. Supp. 2d 805, 807
(S.D. W.Va. 1998) (“The federal NPDES program allows a state to take control of
the permitting process within its borders, so long as it complies with the federal
standards set forth by the Clean Water Act and the regulations promulgated under
that act.”). In Virginia, DMLR oversees the NPDES permitting system for coal
mining operations.
As part of the NPDES system, states must develop standards, known as
TMDLs, for the pollutants being discharged into the states’ waterways. See 40
CFR § 122.44(d)(1)(vii)(B) (stating that NPDES permits must contain conditions
consistent with the requirements and assumptions of the wasteload allocations in
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the TMDL). 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 a list of 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
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). Although TMDLs are not “selfimplementing instruments,” they provide information to the EPA and state
agencies “to coordinate necessary responses to excessive pollution in order to meet
applicable water quality standards.” Id. at 216. The state must submit the TMDL
to the EPA 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).
Plaintiffs’ present motion is aimed at a coal mine operated by Red River in
Wise County, Virginia, under NPDES Permit 0081272, which was last renewed by
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DMLR on April 27, 2010. 5 The coal mine, called the Flat Gap Mine, discharges
pollutants into the South Fork of the Pound River. A year after this permit was
renewed, the State Water Control Board, with assistance from DMLR and the
Virginia Department of Environmental Quality, issued a TMDL for the South Fork
of the Pound River, which was approved by the EPA on April 28, 2011. 6
The preface of the TMDL document states that, due to “uncertainties and
differences of interpretation” regarding the data, predictive tools and conclusions
that came to light during the TMDL development, a “‘phased’ TMDL” would be
implemented “in accordance with EPA guidance.” (ECF No. 7-1 at Preface-1).
According to EPA guidance, a “phased” TMDL refers to “TMDLs that for
scheduling reasons need to be established despite significant data uncertainty and
where the State expects that the loading capacity and allocation scheme will be
revised in the near future as additional information is collected.”

EPA,

Memorandum: Clarification Regarding “Phased” Total Maximum Daily Loads 2
(Aug. 2, 2006), available at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/
5

At oral argument, counsel advised that renewal of this permit is currently

pending.
6

A copy of the TMDL document, dated April 2011 and entitled “North Fork and
South Fork Pound River Phased TMDLs for Benthic Impairments Wise County,
Virginia,” was filed with Red River’s prior Motion to Dismiss. (ECF No. 7-1.) The
TMDL document was developed and dated after all of the four permits in controversy in
this case were issued. NPDES Permit 0080717 (Buck Knob Mine) was last renewed on
May 4, 2010; Permit 0081401 (North Fox Gap Surface Mine) was last renewed on
December 13, 2006; Permit 0081187 (Phillips Creek Deep Mine) was last renewed on
January 8, 2009. (Mem. Supp. Def.’s Mot. Summ. J. 2 n.1, ECF No. 26.)
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tmdl_clarification_letter.cfm. Although the EPA has stated that phased TMDLs
“must be established at a level necessary to meet water quality standards,” it has
also clarified that, in implementing phased TMDLs, “the time frame in which
water quality standards will be achieved is based on a planned staged
implementation of controls and a determination of the appropriateness of this
timeframe is made on a case specific basis.” Id. at 1.
The TMDL in this case stated that it will “utilize an adaptive management
approach,” which is “an iterative implementation process that moves towards
achieving water quality goals while collecting, and using, new data and
information.” (ECF No. 7-1 at Preface-1.) This adaptive approach was “intended
to provide time to address uncertainties with TMDLs and make necessary revisions
while interim water quality improvements are initiated.” (Id.) To this end, the
document stated that a “revised” TMDL document would be developed by the
Virginia Department of Environmental Quality and DMLR, and submitted to the
EPA within two years of the date of the EPA’s approval of the TMDL — April 28,
2011. The parties do not dispute that, to this date, DMLR has not yet submitted a
revised TMDL for EPA approval.

In the interim, the TMDL states that the

wasteload allocations would be “effective and implemented by DMLR,” but that
this implementation would occur using a “staged approach.” (Id. at Preface 2-3.)

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DMLR has interpreted the assumptions behind the TMDL requirements to
be consistent with its existing “transient/aggregated permitting approach.”
(O’Quinn Decl. 3, ECF 25-2.) According to George Joey O’Quinn, a Reclamation
Program Manager for DMLR, such an approach has three elements, including that:
“(1) mining wasteloads are monitored and tracked against the total wasteload
allocations assigned in the TMDL; (2) best management practices (“BMPs”) are
implemented in order to maintain and/or reduce actual loads; and (3) additional
reduction actions may be required where an individual source exceeds the total
wasteload.” Id. In addition, DMLR will provide notice to the permittee if any
further actions are required to reduce wasteloads, including further monitoring,
additional BMPs, and an enforceable schedule for their implementation. DMLR
retains the authority to modify permit conditions or initiate an enforcement action
against the permittee. Id.
DMLR’s understanding of the permit condition at issue is memorialized in a
state court settlement agreement in Virginia Mining Issues Group v. State Water
Control Board et al., Case No. CLI1002789-00 (City of Richmond Circuit Court,
Apr. 16, 2012), which provides that:
All the mining wasteload allocations included in the . . . South Fork of
the Pound River TMDLs, and calculated by the Division’s contractor,
were developed with the assumption that they would be applied under
the agency’s existing transient/aggregated permitting approach. To
apply them to permit limitations as individual wasteload allocations
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would be inconsistent with the assumptions made during TMDL
development.
(ECF No. 25-2 at 6.)
Although DMLR has not submitted a revised TMDL within the time
suggested in the 2011 TMDL document, it has taken action to enforce the existing
TMDL by providing Red River with notice of the need for additional wasteload
reduction actions, including additional monitoring and BMPs, in a letter dated
April 11, 2014. (ECF No. 25-2 at 10.)
II.
Pursuant to Federal Rule of Civil Procedure 56(a), the court must grant
summary judgment when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” The substantive law
applicable to the case determines which facts are material. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party. If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Id. at 249-50 (citations omitted).
Plaintiffs contend that Red River is in violation of the plain language of
Condition (n)(3) of its NPDES permits, which incorporates the wasteload
limitations of “an existing and approved” TMDL. There is no dispute, however,

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that DMLR has not interpreted the NPDES language in a vacuum, as Plaintiffs
desire, without regard to the applicable implementation plan. Indeed, Plaintiffs
overlook that Condition (n)(3) itself states that the permittee must comply “with
the TMDL and any applicable TMDL implementation plan.” (ECF No. 13-1 at 5.)
(emphasis added.)
Because the South Fork TMDL is a “phased” TMDL, DMLR has applied a
“transient/aggregated” approach to implementation that includes a series of actions
aimed to achieve wasteload reductions over time. DMLR has made clear that Red
River has complied with all DMLR requirements with regard to the TMDL.
In short, although Plaintiffs frame their claims as based on a permit
violation, they implicitly seek to challenge DMLR’s interpretation of the permits at
issue. An agency’s interpretation of, or finding of facts under, a regulation that it
has the authority to enforce is entitled to deference because “[a]dministrative
agencies are simply better suited than courts to engage in such a process.” Ford
Motor Credit Co. v. Milhollin, 444 U.S. 555, 569 (1980). Moreover, courts afford
special deference in reviewing an agency’s findings where the agency’s particular
technical expertise is involved. Ohio Valley Envtl. Coal. v. U.S. Army Corps of
Eng’rs, 674 F. Supp. 2d 783, 801 (S.D.W. Va. 2009). Finally, because the DMLR
is a state agency empowered to develop TMDLs for waterways within Virginia, the
court must adhere to the “strong public policy against a federal court’s interference
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in state agency determinations absent some finding that the agency has violated
federal law.”

United States v. Alcoa, Inc., No. A-03-CA-222-SS, 2007 WL

5272187, at *7 (W.D. Tex. March 14, 2007); see also Palumbo v. Waste Techs.
Indus., 989 F.2d 156, 160 (4th Cir. 1993) (refusing to permit “collateral attack” on
permitting decisions of state environmental agency and federal EPA).
Plaintiffs have made no attempt to argue that DMLR’s findings and
conclusions regarding the South Fork TMDL are inadequate or that they do not
comply with federal law. Rather, they allege that Red River has violated its
permits — a conclusion that DMLR disagrees with. Absent a reason to disregard
DMLR’s findings, which Plaintiffs do not present, I find that I must defer to
DMLR’s determination.

I need not address Red River’s Burford abstention

arguments to reach this conclusion, because the question can be resolved by
deference to the state permitting agency. Therefore, summary judgment for Red
River is appropriate.
III.
For the foregoing reasons, it is ORDERED that Plaintiffs’ Motion for
Summary Judgment (ECF No. 27) is DENIED and Defendant’s Motion for
Summary Judgment (ECF No. 25) is GRANTED.
A separate Judgment will be entered herewith.

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ENTER: April 13, 2015
/s/ James P. Jones
United States District Judge

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