Ohio Valley Environmental Coalition et al v. Fola Coal Company, LLC

Filing 131

MEMORANDUM OPINION AND ORDER denying Defendant's 124 MOTION to Certify Order for Immediate Appeal; and denying the motion for an order staying these proceedings. Signed by Judge Robert C. Chambers on 4/8/2015. (cc: counsel of record; any unrepresented parties) (taq)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

OHIO VALLEY ENVIRONMENTAL
COALITION, INC., WEST VIRGINIA
HIGHLANDS CONSERVANCY, INC.,
and SIERRA CLUB,
Plaintiffs,
v.

CIVIL ACTION NO. 2:13-5006

FOLA COAL COMPANY, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is Defendant’s Motion to Certify Orders for Immediate Appeal, ECF No. 124.
Defendant moves the Court to amend Memorandum Opinions and Orders entered on July 30,
2014, ECF No. 80, September 30, 2014, ECF No. 114, and January 27, 2015, ECF No. 123,
certifying the orders as immediately appealable pursuant to 28 U.S.C. § 1292(b). Defendant
further moves for an order staying these proceedings until interlocutory appeal is granted and
completed or denied. For the reasons explained below, Defendant’s Motion is DENIED.
I.

BACKGROUND
Plaintiffs bring this action pursuant to the citizen suit provisions of the Federal Water

Pollution Control Act (“Clean Water Act” or “CWA”) and the Surface Mining Control and
Reclamation Act (“SMCRA”).

Plaintiffs allege that Defendant Fola Coal Company, LLC

(“Fola”) violated these statutes by discharging excessive amounts of ionic pollution, measured as
conductivity and sulfates, into the waters of West Virginia in violation of their National Pollutant
Discharge Elimination System (“NPDES”) permits and their West Virginia Surface Mining

Permits. Pursuant to this Court’s June 21, 2013 Scheduling Order, ECF No. 16, this case is
proceeding in two phases: Phase I resolved questions of jurisdiction and liability, and Phase II will
resolve issue of appropriate injunctive relief and civil penalties.
Defendants seek amendment and certification for immediate appeal of three memorandum
opinions and orders related to Phase I proceedings.

On July 30, 2014, the Court denied

Defendant’s motion for summary judgment (ECF Nos. 57 and 60), rejecting the argument that the
CWA permit shield defense applied to this action. ECF No. 80. From August 19, 2014 to August
22, 2014, the Court held a four-day trial on Phase I issues of jurisdiction and liability. On August
20, 2014, at the close of Plaintiffs’ evidence, Defendant made an oral motion for judgment on
partial findings. On September 30, 2014, the Court denied Defendant’s motion, finding instead
that Plaintiffs had provided evidence sufficient to support the allegation that Defendant was
responsible for discharges in violation of its permits. ECF No. 114. On January 27, 2014, the
Court issued a Memorandum Opinion and Order finding that Plaintiff’s had established statutory
jurisdiction and that Defendant had committed at least one violation of its permits, thereby
concluding Phase I. ECF No. 123.
Related to these three orders, Defendant seeks interlocutory appeal of the following
questions:
(1) Whether the District Court erred as a matter of law in ruling that West Virginia
coal companies that hold NPDES permits must meet water quality standings for
pollutants when discharges of those pollutants were revealed in the application
and not expressly regulated in those permits;
(2) Whether the District Court erred as a matter of law in adopting a standard for
compliance with West Virginia’s narrative water quality standards that has
never been approved as a water quality standard by the State or USEPA and that
is contrary to State law and policy as expressed in both WVDEP Guidance and
acts of the West Virginia Legislature; and
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(3) Whether the District Court erred as a matter of law in concluding that
conductivity, though not a specific pollutant, is a reasonable and/or allowable
proxy for specific ionic pollutants in a CWA citizen’s suit.
Def. Mem. at 3, ECF No. 124. The first two questions raised by Defendant are ostensibly
identical to questions certified for immediate appeal in OVEC v. Elk Run Coal Co., Civil No.
12-0785, ECF No. 125. Without explanation, the Fourth Circuit denied Defendant’s petition for
appeal on those questions. Elk Run Coal Co. v. OVEC, No. 14-439 (4th Cir. Oct. 24, 2014).
II.

DISCUSSION
In general, appellate review is reserved for final judgments. 28 U.S.C. § 1291; see United

States v. Nixon, 418 U.S. 683, 690 (1974) (“The finality requirement of 28 U.S.C. § 1291
embodies a strong congressional policy against piecemeal reviews, and against obstructing or
impeding an ongoing judicial proceeding by interlocutory appeals.”); Evergreen Int’l (USA) Corp.
v. Standard Warehouse, 33 F.3d 420, 423 (4th Cir. 1994) (“[Finality] is an important component of
the judicial structure, for, as a general matter, it prevents the entanglement of the district and
appellate courts in each other’s adjudications in an unruly and ultimately inefficient way.”).
Notwithstanding this general rule, 28 U.S.C. § 1292(b) does allow for interlocutory appeals in
limited circumstances. However, given that federal law strongly favors finality in the district
court before an appeal is pursued, § 1292(b) “‘should be used sparingly and . . . its requirements
must be strictly construed.’” Woodcock v. Mylan, Inc., No. 2:09:00507, 2009 WL 4730820
(S.D.W.Va. Dec. 4, 2009) (quoting Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989).
In order to satisfy the statutory requirements for discretionary appeal under § 1292(b), a district
judge must certify (1) that the order involves a controlling question of law (2) as to which there is

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substantial ground for difference of opinion and (3) that an immediate appeal from the order may
materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b).

As noted above, Defendant seeks immediate appellate review of two questions of law that
are ostensibly identical to questions that the Fourth Circuit has previously refused to take up on
interlocutory appeal. See Elk Run Coal Co. v. OVEC, No. 14-439 (4th Cir. Oct. 24, 2014).
Considering that these issues have been previously certified to the Fourth Circuit in materially
similar circumstances and the Fourth Circuit declined the petition for appeal, this Court has no
reason to suspect a different outcome here. Accordingly, the Court declines to repeat certification
of Defendant’s first two questions.
With respect to Defendant’s final question, Plaintiffs argue, and the Court agrees, that the
issue involves mixed questions of law and fact, thereby rendering it inappropriate for interlocutory
appeal. Interlocutory appeal is not appropriate where an issue of law is “heavily freighted with
the necessity for factual assessment.” Fannin v. CSX Transp., Inc., 1989 WL 42583, at *5 (4th
Cir. April 26, 1989) (per curiam). Furthermore, certification is inappropriate where a question of
law is “grounded in the specific facts of the case, and cannot be divorced from the facts in such a way
that it is a ‘controlling issue of law.’” Brooks v. Farm Fresh, Inc., 759 F.Supp. 1185, 1198 (E.D.Va.
1991), vacated on other grounds by Shaffer v. Farm Fresh, Inc. 966 F.2d 142 (4th Cir. 1992).

Here, the conclusion that conductivity measurements can be a reasonable and allowable
proxy for particular ionic pollutants is inextricably connected to the factual record. ECF No. 114 at
21 (concluding that “in this unique and well-studied region, [conductivity] is a reasonable proxy
for specific ionic pollutants known to cause violations of West Virginia’s narrative water quality
standards.”). This Court specifically did not find that conductivity is always an appropriate proxy
for ionic pollutants as a matter of law. Id. Accordingly, review of Defendant’s third question
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cannot be accomplished without review of the entire evidentiary record, rendering the question
inappropriate for certification.
III.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Certify Order for Immediate Appeal,

ECF No. 124, in DENIED. The Court DIRECTS the Clerk to send a copy of this written
Opinion and Order to counsel of record and any unrepresented parties.

ENTER:

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April 8, 2015