Southern Appalachian Mountain Stewards et al v. Jewell

Filing 25

OPINION and ORDER granting 12 Motion for Summary Judgment and denying 16 Motion for Summary Judgment. Signed by Judge James P. Jones on 9/20/17. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
)
)
)
Plaintiffs,
)
)
v.
)
)
RYAN ZINKE, SECRETARY OF THE )
)
INTERIOR,
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Defendant.
)

SOUTHERN APPALACHIAN
MOUNTAIN STEWARDS, ET AL.,

Case No. 2:16CV00026
OPINION AND ORDER
By: James P. Jones
United States District Judge

Walton D. Morris, Jr., Morris Law Office, P.C., Charlottesville, Virginia,
and Isak Howell, Isak Howell Law Office, Roanoke, Virginia, for Plaintiffs; John
Austin, Field Solicitor, Department of the Interior, Knoxville, Tennessee, and
Sarah Bugbee Winn, Assistant United States Attorney, Roanoke, Virginia, for
Defendant.
In this case, I must decide whether a decision by the Secretary of the Interior
denying a federal inspection of selenium levels at a surface coal mine’s outfall was
arbitrary and capricious. With cross motions for summary judgment before me, I
find that it was, and therefore rule in the plaintiffs’ favor.
I.
The plaintiffs, two environmental organizations, filed this action pursuant to
the judicial review provision of the Surface Mining Control and Reclamation Act
(“SMCRA”), 30 U.S.C. § 1276(a)(2), alleging that they were aggrieved by an
administrative decision of the Secretary of the Interior (“Secretary”).

The

defendant answered and filed the administrative appeal record.1 Cross motions for
summary judgment based on that record have been filed and the parties have
briefed and orally argued the issues. The case is thus ripe for decision.
A.
The Secretary, through the Office of Surface Mining Reclamation and
Enforcement (“OSMRE”), administers SMCRA. See 30 U.S.C. 1211. Virginia is
a primacy state, meaning it has its own state-run, federally approved program for
surface mining reclamation operations, but OSMRE retains some enforcement
powers.

See 30 U.S.C. § 1271.

Federally approved state programs must

“incorporate sanctions no less stringent than” those set forth in SMCRA and “shall
contain the same or similar procedural requirements relating thereto.” 30 U.S.C. §
1271(d).
When the Secretary has reason to believe someone is violating a SMCRA
requirement or permit condition, the Secretary must notify the state regulatory
agency by issuing what is known as a ten-day notice. 30 U.S.C. § 1271(a)(1). If
the state agency does not, within ten days, “take appropriate action to cause said
violation to be corrected or to show good cause for such failure and transmit
notification of its action to the Secretary, the Secretary shall immediately order
Federal inspection of the surface coal mining operation at which the alleged

1

The administrative appeal record will be cited as “R.”
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violation is occurring.” Id. If a state fails to enforce its federally approved
program, the Secretary may provide for federal enforcement. 30 U.S.C. § 1254(b).
A Virginia regulation promulgated under SMCRA’s authority generally
requires that “[d]ischarges of water from areas disturbed by surface mining
activities shall be made in compliance with all applicable State and Federal water
quality laws, standards and regulations and with the effluent limitations for coal
mining promulgated by the U.S. Environmental Protection Agency set forth in 40
CFR 434.” 4 V.A.C. 25-130-816.42. The Federal Water Pollution Control Act,
better known as the Clean Water Act (“CWA”), prohibits the discharge of
pollutants without a permit. 33 U.S.C. § 1311(a). Thus, every Virginia surface
mining permit incorporates the requirement that any discharges must comply with
both state standards and the CWA.
The regulation establishing Virginia’s surface water standards states that
“[i]nstream water quality conditions shall not be acutely or chronically toxic.” 9
V.A.C. 25-260-140. The regulation defines “acute toxicity” as “an adverse effect
that usually occurs shortly after exposure to a pollutant.”

Id.

Death or

immobilization of an organism “is the usual measure of acute toxicity.”

Id.

“Chronic toxicity” is defined as “an adverse effect that is irreversible or
progressive or occurs because the rate of injury is greater than the rate of repair

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during prolonged exposure to a pollutant.” Id. For selenium, 2 Virginia has set a
freshwater aquatic life chronic toxicity standard of 5 μg/l (micrograms per liter,
that is, 5 millionths of a gram per liter). Id. Chronic toxicity is measured by a
“[f]our-day average concentration,” which is “not to be exceeded more than once
every 3 years on the average.” Id. at n.2.
A federal regulation requires a representative of the Secretary to
“immediately conduct a Federal inspection” whenever he or she
has reason to believe on the basis of information available to him or
her . . . that there exists a violation of [SMCRA], this chapter, the
applicable program, or any condition of a permit or an exploration
approval, or that there exists any condition, practice, or violation
which creates an imminent danger to the health or safety of the public
or is causing or could reasonably be expected to cause a significant,
imminent environmental harm to land, air or water resources and —
...
The authorized representative has notified the state regulatory
authority of the possible violation and more than ten days have passed
since notification and the State regulatory authority has failed to take
appropriate action to cause the violation to be corrected or to show
good cause for such failure and to inform the authorized
representative of its response.

2

Selenium is “a naturally occurring element that can be harmful in high doses to
aquatic life and is categorized as a toxic pollutant under the [CWA].” S. Appalachian
Mountain Stewards v. A & G Coal Corp., 758 F.3d 560, 562 (4th Cir. 2014). Surface
mining operations may expose selenium-bearing earth materials. See Ohio Valley Envtl.
Coal. , Inc. v. Apogee Coal Co., 555 F. Supp. 2d 640, 642 (S.D.W. Va. 2008).
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30 C.F.R. § 842.11(b)(1).

“Appropriate action includes enforcement or other

action authorized under the State program to cause the violation to be corrected.”
Id. Good cause can be established where “[u]nder the State program, the possible
violation does not exist.” Id. “An authorized representative shall have reason to
believe that a violation, condition or practice exists if the facts alleged by the
informant would, if true, constitute a condition, practice or violation . . . .” 30
C.F.R. § 842.11(b)(2); see also 4 V.A.C. 25-130-842.11. “When the Federal
inspection results from information provided to the Secretary by any person, the
Secretary shall notify such person when the Federal inspection is proposed to be
carried out and such person shall be allowed to accompany the inspector during the
inspection[.]” 30 U.S.C. § 1252(e)(2). The approved Virginia program includes
enforcement mechanisms essentially parallel to the federal enforcement
mechanisms.

See Va. Code Ann. §§ 45.1-245, 45.1-246.1.

Like the federal

statute, a Virginia statute states, “Whenever information provided the Director by
any person results in any inspection, the Director shall notify such person of the
time at which the inspection is scheduled to occur, and such person shall be
allowed to accompany the inspector during the inspection.” Va. Code Ann. § 45.1246.1(H).

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B.
In January 2014, Southern Appalachian Mountain Stewards (“SAMS”) sent
a letter to the Virginia Division of Mined Land Reclamation (“DMLR”) requesting
a citizen inspection under the Virginia regulations, of Red River Coal Company’s
(“Red River”) Greater Wise No. 1 Mine (“GW1 Mine”), located in Wise County,
Virginia. The letter alleged that the GW1 Mine was violating SMCRA by (1)
discharging selenium without permit authorization in violation of the CWA, and
(2) exceeding Virginia’s chronic toxicity standard for selenium. The letter cited
publicly available selenium sampling data from a nearby aquatic monitoring
station which showed selenium levels of 19.0 μg/l, 16.9 μg/l, and 7.12 μg/l. The
samples cited had been collected in November 2010, March 2011, and September
2012, respectively. The GW1 Mine’s National Pollutant Discharge Elimination
System (“NPDES”) permit 3 contained no effluent limitations for selenium.
SAMS’s letter asked for notice of and an opportunity to attend any inspection.
DMLR denied SAMS’s request for an inspection. DMLR’s letter to SAMS
stated that there could be no violation under the state regulations because the GW1
Mine’s NPDES permit contained no selenium limit. The letter also noted that the
permit would soon be up for renewal, and Red River would be required to address

3

“[T]he CWA allows the federal government — or by delegation, the states — to
issue NPDES permits for the discharge of certain pollutants.” S. Appalachian Mountain
Stewards, 758 F.3d at 563 (citing 33 U.S.C. § 1342(a), (b)).
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the discharge of selenium in the renewal process. DMLR also stated that the data
did not show any exceedence of the state water quality standards because the
samples were taken upstream of the GW1 Mine’s outfall.
SAMS did not appeal DMLR’s decision through the state administrative
process.

Instead, pursuant to 30 C.F.R. § 842.12(a), SAMS and Sierra Club

(collectively, the plaintiffs) wrote to OSMRE and requested a federal inspection of
the GW1 Mine. OSMRE issued a ten-day notice, to which DMLR responded
within ten days. In its response, DMLR again stated that the GW1 Mine’s permit
did not contain a selenium effluent limitation. DMLR said that the sampling data
provided by the plaintiffs was not sufficient to show that the selenium water
quality standard was exceeded because the samples were taken upstream of the
permit’s Outfall 001. However, SAMS had explained in its initial letter to DMLR
that the sediment ponds downstream of where the samples were taken “are not
designed to treat selenium and typically do not treat selenium. Therefore, the
discharges from Red River’s Outfall 001 likely contain levels of selenium
comparable to those shown at” the location where the samples were taken. R. 2.
In its response to the ten-day notice, DMLR further stated that it would require Red
River to address the discharge of selenium in its upcoming permit renewal. DMLR
concluded that no violation was present, so no enforcement action was required.

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Two days after OSMRE issued the ten-day notice and three days before
DMLR responded, OSMRE sampled water from the GW1 Mine’s Outfall 001
while conducting an inspection of an adjacent mining operation. OSMRE wrote in
a letter to Red River that these samples were collected in response to a citizen
complaint and would be analyzed for selenium concentration. The plaintiffs were
not notified that these samples would be collected and were not present for their
collection.

The selenium level in these samples was 5.77 μg/l, higher than

Virginia’s chronic toxicity level of 5 μg/l.
Considering DMLR’s response to the ten-day notice, OSMRE’s Knoxville
Field Office (“KFO”) found that the data supplied by SAMS to DMLR “does
provide evidence suggestive that the chronic standards for selenium (5 μgram/liter)
could be in violation.” R. 23. The KFO held that “DMLR cannot choose to
enforce only the NPDES standards referenced at 4VAC25-130-816.42 and ignore
the requirements that discharges meet other State and Federal Laws; to do so is
arbitrary, capricious, and an abuse of discretion.” Id. The KFO thus declared that
it would conduct a federal inspection of the GW1 Mine.
DMLR requested informal review of the KFO’s decision by OSMRE’s
Regional Director. See 30 C.F.R. § 842.11(b)(iii)(C). DMLR contended that
OSMRE had already improperly conducted a federal investigation when OSMRE
took samples at Outfall 001, “under the ruse of conducting an oversight inspection”
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of Red River’s adjacent operation. R. 25. DMLR stated that the data provided by
SAMS “did not indicate that an exceedence of any promulgated State standard
existed.” Id. A month after OSMRE had collected its samples, DMLR collected
its own samples from Outfall 001. Once again, SAMS was not notified of the
inspection in advance and was not present for it.

These samples showed a

selenium level of 4.5 μg/l. DMLR submitted the results of this sampling to the
Regional Director to be considered as part of the informal review.
On review, the Regional Director reversed the KFO’s decision.

The

Regional Director found that the KFO had rightly determined DMLR’s response to
the ten-day notice to be arbitrary and capricious. However, based on the later
sampling done by DMLR that showed a selenium level less than the chronic
toxicity level, the Regional Director concluded that there was no violation. The
Regional Director acknowledged that DMLR had failed to allow SAMS to attend
the inspection, but stated that “the KFO has no ability to cite an enforcement action
in response to DMLR’s shortcoming.” R. 109.
SAMS appealed the Regional Director’s decision to the Department of
Interior’s Office of Hearings and Appeals, Interior Board of Land Appeals
(“Board”). The Board affirmed the Regional Director’s decision. The Board first
held that the Regional Director had not erred in finding that DMLR’s response to
the ten-day notice was not arbitrary or capricious because, based on DMLR’s later
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sampling for selenium, “there was no violation of the acute State selenium
standard.” R. 128 (emphasis added). The Board’s decision did not address the
chronic toxicity standard, nor did it mention the sampling done by OSMRE during
its inspection of the adjacent mine.
The Board then held that SAMS’s right to participate in any state inspection
ended when SAMS declined to appeal DMLR’s denial through the state
administrative process and proceeded to request a federal inspection instead.
The Board next held that the Regional Director did not err in failing to find
that Red River’s discharge of selenium in any amount violated the CWA. The
Board considered the Fourth Circuit’s decision in Southern Appalachian Mountain
Stewards v. A&G Coal Corp., 758 F.3d 560, 570 (4th Cir. 2014), and noted that
even if Red River were unable to avail itself of the CWA’s permit shield defense as
to selenium, the KFO likely would not have known about any deficiencies in the
permitting process, which is done through the state agency. Therefore, any such
deficiencies could not have caused the Regional Director “to believe Red River
was violating the approved State program.” R. 130. Finally, the Board agreed that
“DMLR was . . . taking appropriate action to address a potential NPDES
permitting issue” by stating that it would require Red River to address selenium
discharges in its upcoming permit renewal process. Id. at 131.

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The Board’s decision is considered the final decision of the Secretary, 43
C.F.R. § 4.1101(a), and is subject to review by this court, 30 U.S.C. § 1276(a)(2).
II.
My review of the Secretary’s decision must be based solely on the record
that was before the Secretary. 30 U.S.C. § 1276(b). I must uphold the Secretary’s
findings of fact if they are supported by substantial evidence. W. Va. Highlands
Conservancy, Inc. v. Norton, 69 F. App’x 624, 627 (4th Cir. 2003) (unpublished).
The Secretary’s legal conclusions shall be set aside if they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). “[T]he distinction between the substantial evidence test and
the arbitrary or capricious test is largely semantic . . . .” Ass’n of Data Processing
Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys., 745 F.2d 677, 684 (D.C.
Cir. 1984) (internal quotation marks and citations omitted).
“The arbitrary-and-capricious standard directs the reviewing court to
determine whether the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment.” Ohio River Valley
Envtl. Coal., Inc. v. Kempthorne, 473 F.3d 94, 102 (4th Cir. 2006) (internal
quotation marks and citation omitted).

This standard requires the agency to

“explain the evidence which is available, and . . . offer a rational connection

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between the facts found and the choice made.” Id. at 102-03 (internal quotation
marks and citation omitted).
Normally, an agency rule would be arbitrary and capricious if the
agency has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983). “Even when an agency explains its decision with less than ideal
clarity, a reviewing court will not upset the decision on that account if the agency’s
path may reasonably be discerned.” Alaska Dep’t of Envtl. Conservation v. E.P.A.,
540 U.S. 461, 497 (2004) (internal quotation marks and citation omitted). But I
should not “supply a reasoned basis for the agency’s action that the agency itself
has not given.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (internal quotation
marks and citation omitted).
Following these principles, I now consider whether the Secretary’s decision
was arbitrary and capricious.
I find that the Board’s decision entirely failed to address key evidence, and
its finding that DMLR’s sampling showed there was no violation of Virginia’s
water quality standards runs counter to the record evidence and fails to address an
important aspect of the plaintiffs’ complaint. The data initially provided by SAMS
showed selenium levels far exceeding the Virginia chronic standard. The samples
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collected by OSMRE from Outfall 001 showed selenium levels in excess of the
chronic standard. The samples collected by DMLR showed selenium levels only
slightly lower than the chronic standard, and the average of the samples taken by
OSMRE and DMLR showed a level in excess of the chronic standard. The Board
ignored all of the samples showing selenium levels in excess of the chronic
standard and referenced only the sampling done by DMLR.

The Board also

referred to the acute standard, which was not at issue, and did not discuss the
chronic standard beyond a passing reference in a footnote. The Secretary has
argued to this court that the Board’s reference to the acute standard was a mere
typographical error, but that is not apparent from the face of the decision. Even if
the reference to the acute standard was a clerical error, the Board’s decision does
not rationally explain how the sampling evidence of record led to the conclusion
that the chronic standard was not being violated.
The data provided by SAMS gave the Secretary reason to believe that the
GW1 Mine was violating Virginia’s chronic toxicity standard for selenium, which
is why the Secretary issued the ten-day notice. The samples collected by OSMRE
after issuance of the ten-day notice provided further reason to believe a violation
was occurring, as that data was both recent and collected from the GW1 Mine’s
outfall rather than a point upstream. DMLR’s response to the ten-day notice
arbitrarily concluded, based solely on its own one-day sampling data, that there
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was no violation and that no inspection was warranted. As to the Virginia chronic
toxicity standard, DMLR thus “failed to take appropriate action to cause the
violation to be corrected or to show good cause for such failure.” 30 C.F.R.
§ 842.11(b)(1).
The Secretary has argued that DMLR correctly concluded there was no
violation of the chronic standard because the plaintiffs did not provide samples
taken on four consecutive days that show an average selenium level in excess of
the standard.

I find that SMCRA does not require citizens to provide such

evidence when seeking a federal inspection. Though the Virginia regulation does
state that chronic toxicity is measured by a four-day average concentration, no
citizen could reasonably be expected to obtain four consecutive days of sampling
data in advance of an inspection. Citizens do not have a legal right to enter upon
privately owned mining operations to collect water samples. Citizens generally
must rely upon publicly available data when seeking an inspection, which is what
SAMS did here.
SMCRA’s “reason to believe” standard does not demand that citizens prove
the existence of a violation by a preponderance of the evidence before they can
obtain an inspection. Collecting evidence is the purpose of the inspection. The
Board itself has explained that under SMCRA, OSMRE must order an inspection
wherever the possibility of a violation exists, and the purpose of an inspection is to
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determine whether or not a violation does, in fact, exist.

W. Va. Highlands

Conservancy, IBLA 95-557, 22 (2000). The evidence before the Board provided
reason to believe that the GW1 Mine was violating the state chronic toxicity
standard for selenium, and DMLR neither took appropriate action to correct the
violation nor showed good cause for failing to take any action; therefore, the Board
was required to order a federal inspection.
In addition to an alleged violation of the state chronic toxicity standard, the
plaintiffs also contended that the GW1 Mine was violating the CWA by
discharging any selenium without a permit authorizing it to do so. It is undisputed
that at the time the various samples were taken, the mine’s NPDES permit
contained no effluent limit for selenium. The mine therefore was not allowed to
discharge selenium in any amount unless it could avail itself of the CWA’s socalled permit shield defense. The permit shield defense applies only when:
(1) the permit holder complies with the express terms of the permit
and with the Clean Water Act’s disclosure requirements and (2) the
permit holder does not make a discharge of pollutants that was not
within the reasonable contemplation of the permitting authority at the
time the permit was issued.
S. Appalachian Mountain Stewards, 758 F.3d at 565 (quoting Piney Run Pres.
Ass’n v. Cty. Comm’rs of Carroll Cty., 268 F.3d 255, 259 (4th Cir. 2001)).

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The Board’s decision appears to place the burden on the plaintiffs to show
that the permit shield does not apply to the GW1 Mine’s discharge of selenium.
The Board stated:
Discharging a pollutant not identified in an NPDES permit is not a
violation of the Clean Water Act if the permittee complied with
applicable disclosure requirements when applying for its NPDES
permit and the pollutant was within the reasonable contemplation of
the permitting authority when it issued the NPDES permit. But even
if these circumstances might not be present due to NPDES permitting
errors or deficiencies, we question how they would be known to KFO
and cause it to believe Red River was violating the approved State
program.
R. 130 (footnote omitted). The problem with this analysis is that the permit shield
is a defense. See S. Appalachian Mountain Stewards, 758 F.3d at 570 (noting that
the defendant bears the burden of proof as to the permit shield defense). The
plaintiffs were not required to disprove its applicability in order to create reason to
believe that the GW1 Mine was violating the CWA by discharging selenium
without permit authorization. The Board’s decision simply requires too much of a
citizen complainant and ignores the relatively low threshold for when action must
be taken or an inspection must be conducted.
Moreover, DMLR’s promise to address selenium discharges in a future
permit revision did not amount to appropriate action to cause the CWA violation to
be corrected. Whatever a future permit might require, the record evidence gave
reason to believe that the GW1 Mine was violating its NPDES permit at the time
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the ten-day notice was issued. Allowing that violation to continue until some
unspecified future date when the permit is renewed and revised is not appropriate
action to correct the existing violation. Furthermore, DMLR concluded that no
violation existed and no action was required.

The Board’s conclusion that

addressing the issue of selenium discharge during future permit renewal
constituted appropriate action to correct the potential CWA violation was arbitrary
and capricious.4
Because I hold that the Secretary’s decision was arbitrary and capricious on
the grounds stated above, I need not address either party’s arguments regarding the
plaintiff’s right to notice of and participation in the inspection conducted by
DMLR. In accordance with the applicable federal regulation, the plaintiffs shall be
given notice of and an opportunity to attend the federal inspection.
III
For the reasons stated, I will grant the relief requested by the plaintiffs and
direct the Secretary to conduct a federal inspection to address the allegations made
by SAMS in its written citizens’ complaint about Red River.

4

At oral argument, counsel for the Secretary advised the court that DMLR has
renewed Red River’s GW1 Mine permit since the events in question in this case, and that
the renewed permit addresses discharge of selenium in some undisclosed manner. That
fact, even if true, does not moot the plaintiffs’ case. The same permit is at issue and the
citizens’ complaint by SAMS offered sufficient evidence of a violation of the state’s
chronic selenium toxicity standard to justify an inspection, regardless of the provisions of
any renewed permit.
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Accordingly, it is ORDERED that the Motion for Summary Judgment by
the plaintiffs, ECF No. 12, is GRANTED, and the Motion for Summary Judgment
by the defendant, ECF No. 16, is DENIED. A separate final judgment will be
entered forthwith.
ENTER: September 20, 2017
/s/ James P. Jones
United States District Judge

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