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

Filing 71

OPINION and ORDER granting 42 Motion for Summary Judgment ; granting 54 Motion for Partial Summary Judgment. Signed by Judge James P. Jones on 9/24/19. (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.

)
)
)
)
)
)
)
)
)
)

Case No. 2:17CV00028
OPINION AND ORDER
By: James P. Jones
United States District Judge

Peter M. Morgan, Denver, Colorado, Evan D. Johns, Appalachian Mountain
Advocates, Charlottesville, Virginia, and J. Michael Becher, Appalachian
Mountain Advocates, Lewisburg, West Virginia, for Southern Appalachian
Mountain Stewards, Appalachian Voices, and Sierra Club; Brooks M. Smith and
Dabney J. Carr, IV, Troutman Sanders LLP, Richmond, Virginia, for Red River
Coal Company, Inc.
In this environmental case, Southern Appalachian Mountain Stewards,
Appalachian Voices, and The Sierra Club (collectively, “SAMS”) have sued Red
River Coal Company, Inc. (“Red River”) for allegedly violating the Clean Water
Act (“CWA”), the Surface Mining Control and Reclamation Act (“SMCRA”), and,
in the alternative, the Resource Conservation and Recovery Act (“RCRA”), by
discharging pollutants without permit authority. Red River has filed a related
declaratory judgment action, Case No. 2:17CV00021, seeking a declaration that it
is not violating the CWA and SMCRA, but the motions at bar have been filed
solely in this case.

After conducting discovery, Red River has moved for summary judgment on
SAMS’s claims for relief. SAMS has moved for partial summary judgment on the
issue of its standing. The motions have been fully briefed and orally argued and
are ripe for decision. For the reasons that follow, I will grant SAMS’s Motion for
Partial Summary Judgment and will grant Red River’s Motion for Summary
Judgment.
I.
The relevant facts are largely uncontested. The following facts taken from
the summary judgment record are either undisputed or, where disputed, are
presented in the light most favorable to the nonmoving party.
Red River operates a surface coal mine in this judicial district called the
North Fox Gap Surface Mine (“Mine”). The Mine discharges pollutants into the
South Fork Pound River, Rat Creek, Stillhouse Branch, and other unnamed
tributaries. Some of the discharges are governed by effluent limits in the Mine’s
combined SMCRA and National Pollution Discharge Elimination System
(“NPDES”) permit. The discharges include substances that contribute to total
dissolved solids (“TDS”) and conductivity. Virginia has classified the South Fork
of the Pound River as biologically impaired due to its high level of TDS.
The area in which the Mine is located was mined extensively before
SMCRA was enacted. That historic surface mining polluted the South Fork Pound
-2-

River watershed by exposing toxic overburden material, which weathered and
leached, causing acidic surface runoff and seepage. Discharges from pre-SMCRA
underground mining have also polluted the watershed.
The federal Environmental Protection Agency (“EPA”) delegated to
Virginia’s Department of Mines, Minerals, and Energy’s Division of Mined Land
Reclamation (“DMLR”) the authority to issue NPDES permits under the CWA.
DMLR also has the authority to issue SMCRA permits. In 1992, DMLR issued
combined CWA and SMCRA permit numbered 1101401/0081401 (“Permit”) for
the Mine to conduct coal surface mining operations and to discharge pollutants
under the CWA. The coal mining operation included remining of previously
mined areas. The Permit requires Red River to reclaim the mining area according
to current standards. DMLR encourages remining because it is a way to reclaim
land that was mined before SMCRA’s enactment that would not otherwise be
reclaimed, aiding restoration of water quality.
A hollow or valley fill is made up of excess spoil or overburden material
removed during mining. The fill is simply a place to put the excess material.
Generally, channels are created to route water around the fill. Any water that gets
into the fill drains into an underdrain at the bottom of the fill, which is designed to
convey water (both percolating groundwater and water running through the fill).
Discharges from nearby underground mines, also known as deep mines, may also
-3-

flow into an underdrain. If there is a sedimentation pond in place, the water from
the channels around the fill and the water collected in the underdrain are both
conveyed into the sedimentation pond before being discharged into a water body.
If there is no sedimentation pond, the water from the channels and the water from
the underdrain may discharge directly into a body of water such as a creek or
stream.
Red River deposited mine spoil into eight hollow fills, each of which has an
underdrain. Until June 2014, Fill 1 and Underdrain 1 discharged into Pond 1 and
through Outfall 001 into a tributary of the South Fork Pound River. Fill 2 and
Underdrain 2, as well as Fill 3 and Underdrain 3, discharged into Pond 2 and
through Outfall 002 into a different tributary of the South Fork Pound River. Fill 4
and Underdrain 4, as well as Fill 5 and Underdrain 5, discharged into Pond 5 and
through Outfall 003 into another tributary of the South Fork Pound River. Fill 6
and Underdrain 6 discharged into Pond 9 and through Outfall 006 into a tributary
of Rat Creek, which flows into the South Fork Pound River downstream from the
other discharges.
On April 29, 2014, DMLR authorized Red River to remove Ponds 3 and 4.
On June 11, 2014, DMLR authorized Red River to remove Ponds 1, 2, 5, 6, and 9.
Underdrains 1, 2, 3, 4, 5, and 6 now all discharge directly into tributaries or

-4-

streams without passing through any sedimentation pond or other treatment
system.
On February 26, 2015, in a document titled Monitoring Point Detail
Supplement, DMLR authorized the deletion of Outfall 003 from Red River’s
NPDES permit.

In the same document, DMLR authorized the relocation of

NPDES monitoring locations for Outfalls 001, 002, and 006. The monitoring
points were previously below the fills but were moved to new locations up slope of
the fills at mine bench Ponds 1B, 3B, and 7B. Red River has not reported any
discharges from these mine bench ponds.
Underdrains 1, 2, 3, 4, 5, and 6 continue to produce discharges high in TDS
and with high conductivity, contributing to elevated levels in the streams into
which the underdrains discharge. These elevated levels have harmed aquatic life in
the streams, which the Virginia Department of Environmental Quality has
designated as impaired based on macroinvertebrate bioassessments.
For purposes of its motion, Red River concedes that the underdrains are
point sources under the CWA. 1 At this time, the underdrains are not listed as
outfalls or point sources in the Permit. The Permit continues to require underdrain

1

As SAMS points out, this is contrary to the position Red River and DMLR have
taken in past communications with EPA and others, and in pleadings filed with this court.
It is, however, consistent with expert testimony offered by SAMS.
-5-

monitoring. The underdrains are discharging calcium, magnesium, sulfate, and
bicarbonate.
The Permit states that Red River “is hereby authorized to conduct coal
surface mining and reclamation operations in Virginia and to discharge from a
facility into receiving waters, aforementioned, in accordance with the
requirements, conditions and limitations set forth in this permit, and all plans
approved for this permit.” Mem. Supp. Mot. Summ. J. Ex. 3 at 2, ECF No. 43-3.
The Permit then goes on to list specific monitoring points and effluent limitations,
along with requirements for sampling. The Permit does not expressly incorporate
Virginia water quality standards or include a condition requiring compliance with
state regulations.
Over the years following issuance of the permit, Red River submitted
several applications for renewal of the Permit. As part of its renewal applications,
Red River submitted monitoring data from the underdrains. The 2016 renewal of
the Permit, which is currently in effect, states that Red River
is authorized to discharge from the facility listed below in compliance
with the provisions of the Clean Water Act as amended and pursuant
to the State Water Control Law and regulations adopted pursuant
thereto and in accordance with the effluent limitations, monitoring
requirements, and other conditions set forth in Sections A, B, C, and
D of this permit and the plans and requirements found in joint
CSMO/NPDES permit number 1101401/0081401 and any and all
subsequent approved permitting actions.

-6-

Id. Ex. 7 at 2, ECF No. 43-7. The “facility listed below” is “North Fox Gap
Surface Mine.” Id. The “receiving waters” listed are “Rat Creek and South Fork
Pound River.” Id. Ex. 3 at 2, ECF No. 43-3. 2
The Permit requires Red River to monitor suspended solids, iron,
manganese, TDS, conductivity, and acidity, among other things, at specified sites.
The 2016 renewal of the Permit states,
NPDES Outfall Description:
NPDES outfalls associated with this permit result from the
control of surface water runoff resulting from precipitation and/or
groundwater discharges from coal mining activities associated with
mining. Treatment facilities may include sedimentation structures,
chemical treatment such as the addition of neutralizing agents or
flocculants, or no treatment (in the case of direct discharge of
underground mine drainage when treatment is not required to meet
applicable effluent limitations). The following details describe the
treatment facility or source associated with each approved outfall.
Specific information regarding each outfall and facility is found in
Section V and Section XII of the CSMO/NPDES permit.
Id. Ex. 7 at 3, ECF No. 43-7. The Permit then goes on to list specific effluent
limitations at delineated outfalls. The Permit requires monitoring of TDS, but sets
no numeric TDS limit, and Virginia has not adopted a numeric water quality
standard for TDS.
In its initial permit application for the Mine, submitted in 1991, Red River
provided sampling data from 1988 through 1991, which included testing for TDS
2

Permit.

The renewals of the Permit each incorporate the terms of the original 1992
-7-

and conductivity. Red River disclosed that “[a]s areas are disturbed during mining,
suspended solids concentrations in runoff will increase.” Id. Ex. 9 at 40, ECF No.
43-9. Red River stated,
[s]ediment control structures will remain in place until the disturbed
area controlled has been stabilized. After vegetation is well
established and ponds have been removed, suspended solids
concentrations will be approximately the same as prior to mining in
non-remining areas. Suspended solids reaching receiving streams
should be reduced during and after mining in the remine area.
Id.

Red River represented that it would construct hollow fills and monitor

discharges at the underdrains of the hollow fills, and the Permit required
monitoring for TDS at the underdrains.

Red River indicated in its permit

application that preexisting discharges from the hollow fills and underdrains were
of poor quality.

However, it predicted that there would be a significant

improvement in water quality once remining and reclamation had been completed.
A DMLR procedure document details the process for removal of
sedimentation ponds following reclamation. According to the procedure, pond
removal cannot begin until data shows there have been no problematic discharges
or effluent limit exceedances for at least the past six months. The removal of the
pond triggers a plan modification and eliminates the NPDES monitoring point
from the Permit.
DMLR’s organizational designee, Rodney Baker, testified in a deposition
that DMLR would have considered the monitoring data submitted by Red River
-8-

when deciding on the effluent limitations and other conditions of the permit.
Baker testified that sedimentation ponds are intended to control runoff during
mining operations and that once reclamation is complete, the ponds are no longer
necessary and are expected to be removed. However, DMLR does not require
removal of the ponds at a particular time or pressure a coal company to remove
them promptly until after approval has been sought and granted. The ponds must
be removed in order for the coal company’s reclamation bond to be released.
According to Baker, under the Permit, Red River is “authorized to discharge
from the facility, but they are required to specify those locations where the
monitoring will be conducted and where the effluent limitations apply.” Id. Ex. 2
at 57, ECF No. 43-2. He went on to clarify that “the permit does apply to the
facility” but “they have to identify each location that has a discharge where
monitoring effluent limitations are applicable and are required.” Id. at 58. Baker
testified that as of the date of his deposition, Red River had complied with the
Permit.
In October 2015, DMLR issued a draft renewal of the Permit that omitted
the underdrains as outfalls. By letters dated November 25, 2015, and January 28,
2016, EPA objected to the draft renewal of the Permit because it considerd the
underdrains to be point sources that were discharging pollutants without permit

-9-

authorization, in violation of the CWA. 3 The EPA wrote that its objection was
“based on the fact that the permit does not contain sufficient conditions to ensure
compliance with water quality standards and does not contain effluent limitations
consistent with the assumptions and requirements of wasteload allocations
established through the South Fork Pound River Total Maximum Daily Load
(TMDL).” SAMS’s Resp. Opp’n Mot. Summ. J. Ex. 10 at 2, ECF No. 49-10.
“[T]here remain discharges from the original outfall locations to the South Fork
Pound River watershed and those discharges continue to contribute TDS to the
watershed.” Id. at 3. The EPA emphasized that post-bond-release discharges were
still subject to regulation under the CWA and must be permitted. 4 The EPA
instructed DMLR that the “ongoing discharge from the original outfall locations
needs a permit, regardless of whether the discharges are deemed to be associated
with active mining activity.” Id. The EPA wrote that “[p]ursuant to Section
3

The EPA’s Office of Surface Mining, Reclamation and Enforcement
(“OSMRE”) has opined, however, that it does not “have the authority to determine
whether an NPDES permit is required for a particular discharge” and that only DMLR
can make that determination, “with oversight from the [EPA].” SAMS’s Resp. Opp’n
Mot. Summ. J. Ex. 1 at 3, ECF No. 49-1.
4

OSMRE, the federal agency that oversees mining in Virginia, appears to agree
with the EPA. It has informed DMLR that “[r]emoval of ponds does not negate the
obligations for compliance with water quality standards.” Id. Ex. 15 at 7, ECF No. 4915. “If water that is not in compliance with permit conditions or the approved program is
leaving the site, the DMLR is obligated to require treatment.” Id. Nevertheless, OSMRE
found that DMLR had not acted arbitrarily with respect to the pond removals and related
actions and that “[t]he best management practices required by the DMLR are an
appropriate mechanism for assuring compliance with TMDLs.” Id. at 9.
- 10 -

402(d) of the CWA and EPAs regulations at 40 CFR §§ 122.4(c) and 123.44, a
final NPDES permit shall not be issued unless and until the EPA’s objections have
been resolved.” Id. at 4.
On March 15, 2016, Red River wrote to DMLR regarding the EPA’s
objections, stating that the objections were meritless. Red River explained its
position as follows:
Where a sediment control pond has been removed, reclaimed and revegetated as part of post-mining reclamation and bond release, the
physical “point source” conveyance is removed and thus drops out of
the NPDES permit program. Any underdrain that was constructed in
connection with a hollow fill and that remains post-reclamation and/or
post-bond-release serves only to convey groundwater flow, which is
regulated — if at all — under the SMCRA program, not the NPDES
permit program.
Id. Ex. 11 at 5, ECF No. 49-11. Red River “agree[d] that a point source discharge
is subject to NPDES permitting regardless of whether mining is in progress or
complete. But the determination of whether a point source discharge exists” is,
according to Red River, a question of fact and law to be decided by DMLR. Id. at
6.
By letter dated April 8, 2016, DMLR responded to EPA’s objection. DMLR
wrote:
No constructed discharges or siltation structures exist at the
original discharge locations but water quality information
representative of those locations is required. In order to help ensure
compliance with Virginia’s narrative water quality standards, routine
benthic macroinvertebrate surveys and testing of thirty-nine water
- 11 -

quality parameters — including all the metals analyses typically of
mine effluent characterization — are required of Rat Creek and the
South Fork Pound River.
Id. Ex. 12 at 3, ECF No. 49-12. DMLR went on to state:
Because DMLR believes that this permit contains sufficient
conditions to ensure compliance with water quality standards and is
consistent with the assumptions and requirements of waste load
allocations established for the South Fork of the Pound River, we
respectfully request EPA to lift their objections to the renewal of this
permit.
Id. The EPA did not lift or withdraw its objection, but when DMLR did not
receive a response from the EPA for several months, it issued the renewed Permit
on August 5, 2016. The EPA subsequently informed DMLR that it considered the
renewed Permit to be invalid because the EPA’s objection remained in place.
Virginia has both numeric and narrative water quality standards, and the
narrative standards include a biological component that is assessed by, among
other things, monitoring benthic macroinvertebrates. DMLR’s internal guidance
requires the agency to assess compliance with both kinds of standards. The DMLR
inspector who approved removal of the ponds did not complete any written
assessment of the biological monitoring data relevant to the narrative standards.
Rather, he appears to have analyzed only compliance with the numeric water
quality standards. Samples collected by Red River’s contractor as part of aquatic
life benthic monitoring showed that instream conductivity in the South Fork of the

- 12 -

Pound River and Rat Creek increased between the fall of 2015 and the fall of 2016,
after the ponds below the hollow fills were removed.
In November 2017 and May 2018, SAMS representatives conducted
sampling at the points where the hollow fills discharge and at points downstream in
the water bodies that receive discharges from the underdrains. This sampling data
showed that TDS and conductivity levels were significantly higher than the premining levels reported by Red River in its 1991 permit application. Despite these
elevated levels, DMLR and Red River consider reclamation to be complete.
By letter dated September 20, 2016, the EPA informed Red River that it
considered Red River to be violating the CWA by discharging pollutants from
point sources into waters of the United States without permit authorization. The
EPA stated that it had concluded that Red River was not complying with the
Permit and that the Permit was not properly issued. The EPA invited Red River to
negotiate a resolution with the agency before the EPA pursued a judicial or
administrative enforcement action. Red River expressed a willingness to meet
with EPA personnel, but the outcome of any negotiations is not apparent from the
record before me.
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
- 13 -

the movant is entitled to judgment as a matter of law.” To raise a genuine issue of
material fact sufficient to avoid summary judgment, the evidence must be “such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, “the
court is required to view the facts and draw reasonable inferences in a light most
favorable to the nonmoving party.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
1994).
The substantive law applicable to the case determines which facts are
material. Anderson, 477 U.S. at 248. “[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).
A. STANDING.
SAMS has moved for partial summary judgment to establish that it has
standing to assert its claims. 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). SMCRA’s citizen
suit provision similarly allows “any person having an interest which is or may be
adversely affected” to “commence a civil action on his own behalf to compel
- 14 -

compliance with” SMCRA. 30 U.S.C. § 1270(a). Likewise, RCRA provides that
any person can file suit “against any person . . . who is alleged to be in violation of
any permit, standard, regulation, condition, requirement, prohibition, or order
which has become effective pursuant to” RCRA or “against any person . . .
including any past or present generator, past or present transporter, or past or
present owner or operator of a treatment, storage, or disposal facility, who has
contributed or who is contributing to the past or present handling, storage,
treatment, transportation, or disposal of any solid or hazardous waste which may
present an imminent and substantial endangerment to health or the environment.”
42 U.S.C. § 6972(a)(1). In order to bring a citizen suit, a plaintiff must first
comply with the notice requirements set forth in the CWA, SMCRA, and RCRA.
See 33 U.S.C. § 1365(b) (requiring notice to be given at least 60 days before filing
suit); 30 U.S.C.A. § 1270(b) (same); 42 U.S.C. § 6972(b)(2) (requiring notice to be
given at least 90 days before filing suit).
“To establish Article III standing, [plaintiffs] must allege that (1) they
suffered an actual or threatened injury that is concrete, particularized, and not
conjectural; (2) the injury is fairly traceable to the challenged conduct; and (3) the
injury is likely to be redressed by a favorable court decision.” Sierra Club v. State
Water Control Bd., 898 F.3d 383, 400 (4th Cir. 2018).
Where, as here, the plaintiff is an organization bringing suit on
behalf of its members, it must satisfy three requirements to secure
- 15 -

organizational standing: (1) that its members would have standing to
sue as individuals; (2) that the interests it seeks to protect are germane
to the organization’s purpose; and (3) that the suit does not require the
participation of individual members.
Equity in Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91, 99 (4th Cir. 2011). “At
least one plaintiff must demonstrate standing for each claim and form of requested
relief.” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018).
In support of its motion, SAMS has filed declarations of organizational
members Jessica Bier and Matthew Hepler. Bier lives on property that is adjacent
to the Mine, and one of the Mine’s hollow fills is located on her property. In her
declaration, she explains in detail the ways in which she believes Red River’s
actions have interfered with her use and enjoyment of the streams on her property
and have diminished the value of her property.

She also states that she has

incurred additional expenses in her business because the stream next to her home is
polluted.

Hepler works for one of the plaintiff organizations and previously

worked for another of the plaintiff organizations. As part of his work, he collects
water samples from streams in the area of the Mine. He asserts that Red River’s
actions have harmed and continue to harm the aquatic life in the streams,
preventing him from enjoying the aquatic life when he visits the bodies of water.
SAMS also submitted a declaration of J. Michael Becher, an attorney representing
the plaintiffs in this action, asserting that he provided the required notice under the
relevant federal statutes.
- 16 -

Red River does not contest that the plaintiffs have standing, either
constitutional or statutory. Based on the averments in the declarations of Bier and
Hepler, I find that the plaintiffs have satisfied the requirements of Article III
standing as to each claim and form of relief sought, and they have asserted
justiciable claims over which this court has jurisdiction. I further find that they
have complied with all applicable statutory notice requirements. I will therefore
grant SAMS’s Motion for Partial Summary Judgment on Jurisdictional Issues.
B. CLEAN WATER ACT.
The NPDES permit 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
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
- 17 -

that act.”). Thus, a person or entity can lawfully discharge a pollutant from a point
source into the waters of the United States if it has a permit authorizing it to do so.
See Sierra Club v. Va. Elec. & Power Co., 903 F.3d 403, 407–08 (4th Cir. 2018).
“To establish a CWA violation, the plaintiffs must prove that (1) there has
been a discharge; (2) of a pollutant; (3) into waters of the United States; (4) from a
point source; (5) without a NPDES permit.” Parker v. Scrap Metal Processors,
Inc., 386 F.3d 993, 1008 (11th Cir. 2004). The statute contains no causation
requirement and “takes the water’s point of view: water is indifferent about who
initially polluted it so long as pollution continues to occur.” W. Va. Highlands
Conservancy, Inc. v. Huffman, 625 F.3d 159, 167 (4th Cir. 2010). The CWA’s
definition of “point source” is “any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding operation, or vessel or
other floating craft, from which pollutants are or may be discharged.” 33 U.S.C.
§ 1362(14). A regulation promulgated under the CWA defines “discharge of a
pollutant” as “[a]ny addition of any ‘pollutant’ or combination of pollutants to
‘waters of the United States’ from any ‘point source.’” 40 C.F.R. § 122.2. “This
definition includes additions of pollutants into waters of the United States from:
surface runoff which is collected or channelled by man . . . .” Id. With respect to
Red River’s Motion for Summary Judgment, the elements of the CWA claim at
- 18 -

issue are whether the discharges are from point sources and whether they are
without permit authorization.
1. Point Sources.
It is clear from the record that both DMLR and Red River believe that the
underdrains that remain following sedimentation pond removal are not point
sources and are not subject to regulation under the CWA. Red River has averred in
the companion case pending in this court that “the alleged sources of pollution,
underdrains and associated hollow fills, are not ‘point sources’ and thus not subject
to regulation under the CWA.” Compl. ¶ 3, Red River Coal Co. v. Sierra Club,
No. 2:17CV00021(W.D. Va. June 30, 2017), ECF No. 1; see also id. ¶ 28. Indeed,
Red River has pleaded in this very case that “Plaintiffs’ claims are barred, in whole
or in part, because they relate to discharges from non-point sources.” Answer to
Am. Compl. 2, ECF No. 35. In denying Red River’s Motion to Dismiss on the
issue of whether SAMS had adequately pleaded that the discharges in question
were from point sources, I held that “the record currently before me does not
contain sufficient facts for me to rule as a matter of law that the underdrains in
question are not point sources.” Op. & Order 25, ECF No. 31.
Red River now purports to “concede[], for purposes of this motion only, that
the discharges from the underdrains at the North Fox Gap Mine come from point
sources as defined by the CWA.” Mem. Supp. Mot. Summ. J. 22, ECF No. 43.
- 19 -

Red River essentially asks me to assume without deciding that the underdrains are
point sources, but to find as a matter of law that discharges from the underdrains
are allowed under the Permit.

SAMS is justifiably concerned about this

conditional concession because it expects that upon conclusion of this litigation,
Red River will again proceed according to its understanding that the underdrains
are not point sources and do not require NPDES permit authorization. Red River’s
conditional concession also creates a significant problem with respect to SAMS’s
RCRA claim, which SAMS pleaded in the alternative to address these discharges if
the court were to conclude that the underdrains are not point sources subject to
CWA regulation. By “conceding” a fact that has the potential to subject it to
liability under the CWA, Red River simultaneously attempts to avoid liability
under RCRA without ever obtaining any judicial resolution of the point source
issue.
Red River cannot manipulate the litigation in this way. Either there is a
factual dispute as to whether the underdrains are point sources, which the
factfinder must resolve, or the undisputed facts reveal that the underdrains are or
are not point sources under the CWA’s definition. “[T]here cannot be a tentative
or conditional admission on motion for summary judgment, which by definition
posits that there are not in truth any unresolved issues of material fact which must
be tried if the wheel turns wrong.” Lloyd v. Franklin Life Ins. Co., 245 F.2d 896,
- 20 -

897 (9th Cir. 1957). “A concession of fact on motion for summary judgment
establishes the fact for all time between the parties. The party cannot gamble on
such a conditional admission and take advantage thereof when judgment has gone
against him.” Id.; see also Help at Home, Inc. v. Med. Capital, L.L.C., 260 F.3d
748, 753-54 (7th Cir. 2001).
It is undisputed that the underdrains were designed to collect and convey
water, and that they do in fact discharge water into tributaries and streams. They
clearly meet the CWA’s definition of point source. See 33 U.S.C. § 1362(14).
This conclusion is further supported by the expert report of John Tyner, Ph.D., who
has opined that each valley fill and its associated underdrain is a point source.
Reply Mem. Ex. 15 at 7, ECF No. 52-2. I therefore find that the undisputed facts
warrant the conclusion that the underdrains at issue in this case are point sources.
Because the underdrains are point sources, in order to be compliant with the
CWA, discharges of pollutants from the underdrains must either be expressly
authorized by a permit or allowed based on the so-called permit shield defense.
See Sierra Club v. Shell Oil Co., 817 F.2d 1169, 1173 (5th Cir. 1987) (explaining
that effluent limitations, set forth in a permit, “are to be applied to all point sources
of discharge at a facility”). Red River argues that discharges of TDS from the
underdrains are allowed here on either ground; SAMS disagrees as to both
grounds.
- 21 -

2. The Permit.
NPDES permits are interpreted applying principles of contract interpretation.
Piney Run Pres. Ass’n v. Cty. Comm’rs of Carroll Cty., 268 F.3d 255, 269 (4th Cir.
2001). Where the permit’s language is unambiguous, the language itself will
determine the permit’s meaning. If the language is ambiguous, however, the court
may consider extrinsic evidence in interpreting the permit. Id. at 269-70. As the
Supreme Court of Virginia has held:
The court must give effect to all of the language of a contract if
its parts can be read together without conflict. Where possible,
meaning must be given to every clause. The contract must be read as a
single document. Its meaning is to be gathered from all its associated
parts assembled as the unitary expression of the agreement of the
parties.
Berry v. Klinger, 300 S.E.2d 792, 796 (Va. 1983).
Red River characterizes the Permit as a facility-wide general permit that
allows it to discharge pollutants from anywhere on the Mine site rather than from
specified point sources.5

Red River insists that the Permit unambiguously

authorizes it “to discharge from a facility into receiving waters,” rather than
limiting discharges to specific outfalls. Mem. Supp. Mot. Summ. J. Ex. 3 at 2,
ECF No. 43-3. Of course, the quoted language is followed by the words “in
5

Red River also argues that the entire facility is one point source, but that
argument makes little sense when one considers the statutory definition of point source,
and it runs afoul of the Fourth Circuit’s recent analysis in Sierra Club v. Va. Elec. &
Power Co., 903 F.3d 403 (4th 2018). There, the court explained that a point source must
make a discrete conveyance. Id. at 410–11. The entire Mine site cannot be said to
function as a discrete conveyance of pollutants.
- 22 -

accordance with the requirements, conditions and limitations set forth in this
permit, and all plans approved for this permit.” Id. Red River contends that the
Monitoring Point Detail Supplement issued after pond removal only changed the
locations for monitoring and did not in any way limit Red River’s permission to
discharge pollutants from the underdrains. Red River construes the Permit as one
single permit that makes no distinction between the CWA and SMCRA
requirements, and it notes that it continues to monitor discharges from the
underdrains and to provide that data to DMLR following pond removal as it did
prior to pond removal. Red River characterizes the Permit as allowing discharges
from anywhere on the Mine site and “simply impos[ing] effluent limitations and/or
monitoring requirements at specific location, including at each of the underdrains.”
Mem. Supp. Mot. Summ. J. 17, ECF No. 43.
SAMS argues that the “from a facility” phrase is merely prefatory language
and that the Permit goes on to specify outfalls and effluent limitations, which
SAMS interprets as the exclusive list of point sources from which discharges are
permitted under the Permit. SAMS asserts that the Permit either clearly does not
allow discharges from other unnamed point sources or is ambiguous, thus allowing
the court to consider extrinsic evidence of the parties’ intent. SAMS construes the
Permit’s requirements as separated by statute. According to SAMS, the effluent
limitations and listed outfalls address the CWA requirements, while the monitoring
- 23 -

required at the underdrains addresses groundwater regulation under SMCRA.
Thus, in SAMS’s view, the Permit’s requirement of monitoring at the underdrains
does not give Red River authorization to discharge pollutants from the underdrains
under the CWA, as neither DMLR nor Red River consider the underdrains to be
point sources.
A careful review of the 1992 permit and its subsequent revisions is
necessary in order to develop a construction of the Permit as a whole. The Permit
is called a “Combined Permit to Conduct Coal Surface Mining Operations
(CSMO) and to Discharge Under the National Pollutant Discharge Elimination
System (NPDES).” Id. Ex. 3 at 2, ECF No. 43-3. It lists two separate permit
numbers, a CSMO permit number and a NPDES permit number. It allows Red
River “to discharge from [the Mine] into [Rat Creek and South Fork Pound River]
. . . in accordance with the requirements, conditions, and limitations set forth in this
permit, and all plans approved for this permit.” Id. Those specific requirements,
conditions, limitations, and plans are many. A later revision of the Permit contains
a similar but lengthier recitation, stating that Red River
is authorized to discharge from the [Mine] in compliance with the
provisions of the Clean Water Act as amended and pursuant to the
State Water Control Law and regulations adopted pursuant thereto and
in accordance with the effluent limitations, monitoring requirements,
and other conditions set forth in Sections A, B, C, and D of this permit
and the plans and requirements found in joint CSMO/NPDES permit
number 1101401/008401 and any and all subsequent approved
permitting actions.
- 24 -

Id. Ex. 7 at 2, ECF No. 43-7. That renewal contains a section captioned “NPDES
Permit Definitions” which includes the following definitions:
(N) “Discharge (of a pollutant)” means any addition of any
pollutant or combination of pollutants to waters of the United States
from any point source; or any addition of any pollutant or
combination of pollutants to the waters of the contiguous zone or
ocean from any point source other than a vessel or other floating craft
which is being used as a means of transportation.
....
(P) “Effluent limitation” means any restriction imposed by the
Director on quantities, discharge rates, and concentrations of
pollutants that are discharged from point sources into waters of the
Untied States, the waters of the contiguous zone, or the ocean.
....
(CC) “Outfall” means a point source.
Id. at 24-25.

This 2016 renewal also includes separate general and special

conditions for the NPDES permit and the CSMO permit, suggesting that while this
is a combined Permit, its portions dealing with the CWA and SMCRA are
separable.
Prior to removal of the sedimentation ponds, the Permit listed specific
effluent limits at seven specific numbered outfalls, 001 through 007. For some
listed NPDES outfalls, effluent limits are listed as “NL,” which “indicates
monitoring is required with no limitations.” Id. at 4. The inclusion of such
effluent limits suggests that discharges of pollutants from other point sources on

- 25 -

the Mine site into the listed bodies of water are not permitted. This is consistent
with the Permit’s definitions of discharge and effluent limitation.
Revisions to the Permit refer to underdrains as sites for groundwater
monitoring, which suggests, consistent with other record evidence and with Red
River’s prior arguments in this case, that DMLR and Red River do not consider the
underdrains to be subject to CWA regulation because they view them as
discharging into groundwater rather than surface water.

The Permit packets

include separate NPDES Effluent Limitations Tables and Ground Water
Monitoring Report Forms. See, e.g., Id. Ex. 5 at 3, ECF No. 43-5. The DMLR
Fact Sheet separately lists “NPDES DISCHARGE SITES,” which include the
numbered outfalls, and “GROUNDWATER MONITORING SITES,” which
include the underdrains. See, e.g., id. at 6. It is reasonable, then, to interpret the
Permit as essentially two separate permits in one, covering CWA/NPDES and
SMCRA. It is clear that DMLR and Red River consider the underdrains not to be
covered by the NPDES portion of the permit. While this is obviously based on the
language of the various Permit documents alone, it is also supported by extensive
extrinsic evidence in the record. However, I do not need to consider that extrinsic
evidence in reaching this conclusion.
While Red River’s suggestion that the Permit allows discharges on a facilitywide basis at first seems to be a straightforward interpretation of the Permit’s
- 26 -

language, that interpretation would render the Permit’s NPDES effluent limits
superfluous. Reading the Permit as a whole, I find it unambiguous that the general
authorization to discharge pollutants from the Mine into receiving waters is limited
to the specific listed point sources and their effluent limits. Otherwise, there would
have been no reason for DMLR to have included the specified outfalls and effluent
limits. The only logical interpretation of the Permit is that discharges from point
sources not listed are not expressly allowed.
The Monitoring Point Detail Supplement dated February 26, 2015, noted
deletion of the sedimentation ponds, deletion of certain outfalls, and relocation of
other outfalls. The parties agree that the Permit does not list outfalls or effluent
limits for the underdrains. Based on my interpretation of the unambiguous Permit,
the NPDES portion of the Permit in its current state thus does not authorize
discharges of pollutants from the underdrains.
3. Permit Shield.
Even where a permit does not expressly authorize certain discharges,
however, they may be allowed under the permit shield provision of the CWA. See
33 U.S.C. § 1342(k). Red River contends that the CWA’s permit shield defense
protects it from liability for discharges from the underdrains because DMLR was
aware of those discharges but chose not to list them in the Permit.
The permit shield applies when:
- 27 -

(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 v. A & G Coal Corp., 758 F.3d 560, 565 (4th
Cir. 2014) (quoting Piney Run, 268 F.3d at 259).
There is no question that Red River has disclosed discharges from the
underdrains to DMLR on an ongoing basis for many years. DMLR was well aware
of the underdrains and the monitoring data when it issued the various Permit
renewals.
underdrains.

It reasonably anticipated TDS and conductivity levels from the
The Permit specifically mentions the underdrains, although it

classifies them as sites for groundwater monitoring rather than as NPDES outfalls.
DMLR chose to regulate the underdrains under the SMCRA portion of the Permit
rather than under the NPDES portion, but it clearly knew that there would be
discharges of TDS or conductivity from the underdrains and chose not to place
specific limits on those discharges.
SAMS argues that Red River cannot avail itself of the permit shield because
the permit shield only protects discharges of unlisted pollutants from listed point
sources. According to SAMS, the permit shield cannot apply where a permit fails
to cover a point source at all. In making this argument, it relies on a 1995 EPA
guidance document. Red River notes that in addition to being dated, the 1995 EPA
- 28 -

document was merely a policy statement and not the product of a formal
rulemaking process, and it is therefore not entitled to any deference. SAMS also
points to National Wildlife Federation v. Consumers Power Co., 657 F. Supp. 989,
1009 (W.D. Mich. 1987), rev’d on other grounds, 862 F.2d 580 (6th Cir. 1988),
wherein the district court stated, “That defendant has secured a permit for certain
point source discharges at the facility thus does not preclude plaintiff form arguing
that there are other point source discharges at the facility for which the Court
should also require defendant to secure permits.”

SAMS also cites Legal

Environmental Assistance Foundation, Inc. v. Hodel, 586 F. Supp. 1163, 1168–69
(E.D. Tenn. 1984), for the proposition that a permit allowing discharges from one
point source does not allow discharges from other point sources. In response, Red
River cites the more recent decision in Tennessee Clean Water Network v. TVA,
206 F. Supp. 3d 1280, 1300 (M.D. Tenn. 2016), rev’d on other grounds, 905 F.3d
436 (6th Cir. 2018), in which the court wrote that “[n]othing in the text of the
permit shield provision, however, suggests that it should apply differently to
violations based on the location of the discharge than it does to violations based on
which pollutants are involved.”
SAMS’s argument elevates form over substance and would undermine the
purpose of the permit shield. Neither the Fourth Circuit nor any other court of

- 29 -

appeals has made the distinction that SAMS attempts to draw. In Piney Run, the
Fourth Circuit plainly held,
We therefore view the NPDES permit as shielding its holder from
liability under the Clean Water Act as long as (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
granted.
268 F.3d at 259. Both requirements are satisfied here.
The undisputed evidence demonstrates that Red River has done what DMLR
has told it to do. Red River should be able to rely upon the clear directives of its
regulators without being subjected to liability. The EPA disagrees with what
DMLR has required, but it would be unfair to place Red River in the middle of a
battle between federal and state regulators. The EPA or SAMS are free to take
legal action against DMLR, but DMLR is not a party to this litigation. By being
completely forthcoming with DMLR and complying with the express terms of its
Permit, Red River has met its obligations under the CWA and is entitled to rely on
the permit shield.

I will therefore grant Red River’s Motion for Summary

Judgment as to the CWA claim.
C. SMCRA.
The theory of SAMS’s SMCRA claim is that Red River’s SMCRA permit
requires it to comply with Virginia’s SMCRA performance standards, which in
- 30 -

turn require compliance with all applicable state and federal water quality laws,
standards, and regulations. A state regulation provides that Virginia waters must
be free from substances or waste that “are inimical or harmful to human, animal,
plant, or aquatic life.” 9 Va. Admin. Code § 25-260-20(A). Another regulation
states that surface mining and reclamation activities must be conducted in a way
that will “prevent material damage to the hydrologic balance outside the permit
area.” 4 Va. Admin. Code § 25-130-816.41(a). SAMS alleges that by causing
violations of these standards, Red River is violating its SMCRA permit. The
regulation also requires that if typical reclamation and remedial practices are
inadequate to meet water quality standards, “the permittee shall use and maintain
the necessary water treatment facilities or water quality controls.” Id. at (d)(1).
SAMS contends that because the reclamation methods employed are inadequate to
ensure compliance with the applicable standards, Red River is violating its
SMCRA permit by failing to construct an appropriate treatment system.
Red River argues that SAMS’s SMCRA claim is barred by SMCRA’s
savings clause. That clause states, “Nothing in this chapter shall be construed as
superseding, amending, modifying, or repealing” various laws, including the
CWA. 30 U.S.C. § 1292. Red River asks this court to adopt the reasoning of the
Sixth Circuit in Sierra Club v. ICG Hazard, LLC, 781 F.3d 281 (6th Cir. 2015),
which appears to be the only case directly addressing the issue presented here. In
- 31 -

ICG Hazard, the court held that where a discharger complies with the CWA based
on application of the permit shield, SMCRA’s savings clause prohibits a finding of
liability under SMCRA for the same discharges. Id. at 291. The court reasoned,
The permit shield is not an absence of regulation but a substantive
element of regulation under the CWA that affords consistent treatment
to NPDES permit holders nationwide. To hold, in connection with the
very same selenium discharges, that ICG is in compliance with
Kentucky water quality-based effluent limitations for purposes of the
CWA but in violation of those same water quality standards under
[SMCRA] would create an inconsistency or conflict in regulatory
practice, in direct contravention of § 702(a)(3).
Id.
SAMS disagrees with the Sixth Circuit’s conclusion in ICG Hazard. It
notes that the CWA expressly requires discharges to comply with “any more
stringent limitation, including those necessary to meet water quality standards . . .
established pursuant to any State law or regulations.” 33 U.S.C. § 1311(b)(1)(C).
As noted above, a regulation promulgated under SMCRA 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 and
regulations.” 30 C.F.R. § 816.42. According to SAMS, adopting Red River’s
broad savings clause argument would negate the SMCRA provision that expressly
allows for more stringent state regulations of surface coal mining and reclamation
operations. See 30 U.S.C. § 1255(b). SAMS notes that OSMRE has taken the
position that water quality standards are enforceable for discharges from the
- 32 -

underdrains. SAMS argues that application of SMCRA’s savings clause as Red
River suggests “would not ‘save’ the CWA or SMCRA, but instead would destroy
them.” SAMS Resp. Opp’n Mot. Summ. J. 31, ECF No. 49.
Although the ICG Hazard decision is not binding on this court, I will adopt
its reasoning and hold that SAMS’s SMCRA claim is barred by the savings clause
in § 702. It is true that the CWA and SMCRA impose separate obligations that can
be independently enforced. See Sierra Club v. Powellton Coal Co., 662 F. Supp.
2d 514, 534 (S.D.W. Va. 2009).

But while the state narrative water quality

standards are not themselves inconsistent with the CWA, applying them here as
SAMS seeks to do would impermissibly circumvent the CWA. The SMCRA
claim asserted by SAMS is based on the very same discharges that are protected by
the CWA’s permit shield. A finding that Red River has complied with the CWA
but has violated SMCRA based on the same discharges would allow SMCRA to
override the CWA’s permit shield and would thus violate SMCRA’s savings
clause. I will therefore grant Red River’s Motion for Summary Judgment as to the
SMCRA claim.
D. RCRA.
SAMS has indicated that it will pursue its RCRA claim only if the court
finds that the underdrains are not point sources subject to regulation under the

- 33 -

CWA. Because I have found that the underdrains are point sources, I will grant
Red River’s Motion for Summary Judgment as to the RCRA claim.
III.
For the foregoing reasons, it is ORDERED that the Motion for Partial
Summary Judgment, ECF No. 54, is GRANTED, and the Motion for Summary
Judgment, ECF No. 42, is GRANTED. A separate final judgment will enter
herewith.
ENTER: September 24, 2019
/s/ James P. Jones
United States District Judge

- 34 -