Ohio Valley Environmental Coalition et al v. Elk Run Coal Company, Inc. et al

Filing 103

MEMORANDUM OPINION AND ORDER denying Defendants' 59 MOTION for Summary Judgment. Signed by Judge Robert C. Chambers on 1/3/2014. (cc: attys; any unrepresented parties) (mkw)

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

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

CIVIL ACTION NO. 3:12-0785

ELK RUN COAL COMPANY, INC. and
ALEX ENERGY, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
Defendants in this case previously filed a Motion for Summary Judgment, ECF No. 59.
The Court entered a Memorandum Opinion and Order on November 25, 2013, DENYING this
Motion, but it reserved the discussion of the bases for its decision regarding its denial of
Defendants’ asserted Clean Water Act permit shield defense and due process rights for resolution
in a later Memorandum Opinion and Order. ECF No. 84. This Memorandum Opinion and Order
sets forth the bases for the Court’s ruling in regard to these two issues in more detail.
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 Defendants Elk Run Coal Company, Inc.,
(“Elk Run”) and Alex Energy, Inc., (“Alex Energy”) violated these statutes by discharging
excessive amounts of ionic pollution, measured as conductivity and sulfates, into the waters of

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West Virginia in violation of their National Pollutant Discharge Elimination System (“NPDES”)
permits and their West Virginia Surface Mining Permits. Before proceeding to the parties’
arguments, the Court will first discuss the relevant regulatory framework and the factual
background of this case.
A.

Regulatory Framework
The primary goal of the CWA is “to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To further this goal, the Act
prohibits the “discharge of any pollutant by any person” unless a statutory exception applies; the
primary exception is the procurement of an NPDES permit. 33 U.S.C. §§ 1311(a), 1342. Under
the NPDES, the U.S. Environmental Protection Agency (“EPA”) or an authorized state agency
can issue a permit for the discharge of any pollutant, provided that the discharge complies with
the conditions of the CWA. 33 U.S.C. § 1342. A state may receive approval to administer a staterun NPDES program under the authority of 33 U.S.C. § 1342(b). West Virginia received such
approval and its NPDES program is administered through the West Virginia Department of
Environmental Protection (“WVDEP”). 47 Fed. Reg. 22363-01 (May 24, 1982). All West
Virginia NPDES permits incorporate by reference W. Va. Code R. § 47-30-5.1.f, which states
that “discharges covered by a WV/NPDES permit are to be of such quality so as not to cause
violation of applicable water quality standards promulgated by [W. Va. Code R. § 47-2].”
Coal mines are also subject to regulation under the SMCRA, which prohibits any person
from engaging in or carrying out surface coal mining operations without first obtaining a permit
from the Office of Surface Mining Reclamation and Enforcement (“OSMRE”) or an authorized
state agency. 30 U.S.C. §§ 1211, 1256, 1257. A state may receive approval to administer a staterun surface mining permit program under the authority of 30 U.S.C. § 1253. West Virginia

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received conditional approval and its surface mining permit program is administered through the
WVDEP pursuant to the West Virginia Surface Coal Mining and Reclamation Act
(“WVSCMRA”). W. Va. Code §§ 22-3-1 to -33; 46 Fed. Reg. 5915-01 (Jan. 21, 1981).
Regulations passed pursuant to the WVSCMRA require permittees to comply with the terms and
conditions of their permits and all applicable performance standards. W. Va. Code R. § 38-23.33.c. One of these performance standards requires that mining discharges “shall not violate
effluent limitations or cause a violation of applicable water quality standards.” Id. § 38-2-14.5.b.
Another performance standard mandates that “[a]dequate facilities shall be installed, operated
and maintained using the best technology currently available . . . to treat any water discharged
from the permit area so that it complies with the requirements of subdivision 14.5.b of this
subsection.” Id. § 38-2-14.5.c.
West Virginia’s water quality standards—as referenced in relation to both permits—are
violated if wastes discharged from a surface mining operation “cause . . . or materially contribute
to” 1) “[m]aterials in concentrations which are harmful, hazardous or toxic to man, animal or
aquatic life” or 2) a “significant adverse impact to the chemical, physical, hydrologic, or
biological components of aquatic ecosystems.” Id. § 47-2-3.2.e, -3.2.i.
B.

Factual Background
1.

Elk Run

Elk Run operates the White Castle No. 1 Surface Mine and the East of Stollings Surface
Mine, both in Boone County, West Virginia. Stip. ¶¶ 1, 12, ECF No. 47. Each mine is regulated
both by WV/NPDES permits and by West Virginia Surface Mining Permits issued by the
WVDEP under the CWA and the SMCRA. Id. ¶¶ 3, 14. The White Castle No. 1 Surface Mine
has seven valley fills that discharge from Outlets 001, 002, 003, 004, and 017 into Laurel Creek,

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a tributary of the Big Coal River. Id. ¶ 2. The East of Stollings Surface Mine also has seven
valley fills that discharge from Outfalls 001 through 007 and 019 into Mudlick Fork and Stolling
Fork, tributaries of Laurel Creek. Id. ¶ 13.
According to the Declaration of Plaintiffs’ expert, Margaret A. Palmer, Director of the
National Socio-Environmental Synthesis Center at the University of Maryland, “a significant
body of scientific research has clearly shown that levels of conductivity about ~ 300 uS/cm and
elevated sulfate levels are common below Appalachian mine sites and lead to extirpation of
invertebrate genera.”1 Palmer Decl. 11, ECF No. 57-3. Pre-permit and pre-mining surveys in the
Laurel Creek watershed showed conductivity in the range of 44.6 to 807 µS/cm, while more
recent data show consistent conductivity levels above the 300 µS/cm level, with the majority of
readings over 1,000 or 2,000 µS/cm. Stip. at 16-26 & ¶¶ 6, 8, 9, 17, 20.
2.

Alex Energy

Alex Energy operates the Robinson North Surface Mine and the Wildcat Surface Mine,
both in Nicholas County, West Virginia. Id. ¶¶ 23, 45. Each mine is regulated both by
WV/NPDES permits and by West Virginia Surface Mining Permits issued by the WVDEP under
the CWA and the SMCRA. Id. ¶¶ 27, 47. The Robinson North Surface Mine has four valley fills
that discharge from Outlets 001, 002, and 003 into Robinson Fork. Id. ¶ 26. The Wildcat Surface
Mine has a large valley fill which discharges from Outlet 004 into an unnamed tributary of
Robinson Fork and from Outlet 007 into Wildcat Hollow, a tributary of Robinson Fork. Id. ¶ 46.
Recent data from surveys in the Robinson Fork watershed show consistent conductivity
levels above the 300 µS/cm level, with the vast majority of readings ranging from 1,000 to 3,000
µS/cm. Id. at 29-32 & ¶¶ 35-38, 50-53. Before extensive mining took place in the Robinson Fork
1

Plaintiffs argue that this information, along with other evidence, shows Defendants have been and are violating
West Virginia’s narrative water quality standards by causing harm to aquatic life or by having a significant adverse
impact on the biological components of aquatic ecosystems.

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watershed, surveys showed sulfates in the range of 22 to 37 mg/l, while more recent data show
consistent sulfate levels above 1,500 mg/l, with the majority of readings over 1,000 mg/l. Id. at
29-32 & ¶ 30.
C.

Defendants’ Arguments
Defendants argue that Plaintiffs’ claims must fail because:
1. Section 402(k) of the CWA shields Defendants from liability because Defendants are
in compliance with their WV/NPDES permits and the discharges were reasonably
contemplated by the permitting authority (Defs.’ Mem. Supp. 2-3, 11-29; Defs.’
Reply 1-19); and
2. Imposition of liability on Defendants for their discharges would violate Defendants’
due process rights by depriving Defendants of property after they reasonably relied
upon the CWA’s permit shield (Defs.’ Reply 19-22).
II.

ANALYSIS

A. Summary Judgment Standard
To obtain summary judgment, the moving party must show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). In considering a motion for summary judgment, the Court will not “weigh the
evidence and determine the truth of the matter.” Id. at 249. Instead, the Court will draw any
permissible inference from the underlying facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[S]ummary judgment will not lie . . . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Summary judgment is
appropriate, however, when the nonmoving party has the burden of proof on an essential element

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of his or her case and does not make, after adequate time for discovery, a showing sufficient to
establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving
party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in
support of his position. Anderson, 477 U.S. at 252. Summary judgment is also appropriate when
the inquiry involves a pure question of law. Taft v. Vines, 70 F.3d 304, 316 (4th Cir. 1995),
vacated on different grounds en banc, 83 F.3d 681 (4th Cir. 1996).
B. Section 402(k) of the CWA Does Not Shield Defendants from Liability
Defendants argue that Section 402(k) of the CWA, known as the “permit shield,” shields
them from liability for violations of West Virginia’s water quality standards if they are not in
violation of any of the specific effluent limits detailed in their permits. Section 402(k) states:
Compliance with a permit issued pursuant to this section shall be deemed
compliance, for purposes of [government enforcement actions] and [citizen suits],
with sections 1311 [effluent limitations], [and] 1312 [water quality related
effluent limitations] . . . of this title . . . .
However, Defendants’ WV/NPDES permits incorporate West Virginia Code of State
Rules § 47-30-5.1.f, which mandates compliance with state water quality standards. Thus, as
explained in detail in Ohio Valley Environmental Coalition, Inc., v. Marfork Coal Company,
Inc., if Defendants are not in compliance with state water quality standards, they are also not in
compliance with their permits. No. 5:12-cv-1464, 2013 WL 4506175, at *7-17 (S.D. W. Va.
Aug. 22, 2013); see also Ohio Valley Envtl. Coal., Inc. v. Fola Coal Co., No. 2:12-3750, at *1920 (S.D. W. Va. Dec. 19, 2013). Therefore, the permit shield would not apply.2 Marfork, 2013
WL 4506175, at *7-17; Fola Coal, No. 2:12-3750, at *19-20.

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In Marfork, the Court also alternatively held that, even if the WV/NPDES permits did not incorporate the state’s
water quality standards through § 47-30-5.1.f, the permit shield would still not apply to the defendant because the
pollutant in that case—selenium—was not within the reasonable contemplation of the permitting authority at the
time the permit was issued. The Court need not make a determination of this issue here.

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In support of their contention that the state’s water quality standards are not incorporated
into their WV/NPDES permits, Defendants argue that 1) the West Virginia Legislature clarified
that Defendants’ interpretation of whether the WV/NPDES permits incorporate § 47-30-5.1.f
was correct by passing Senate Bill 615, 2) the WVDEP implemented this interpretation of S.B.
615 by amending the language of § 47-30-5.1.f, and 3) the WVDEP’s interpretation of S.B. 615
is the same as Defendants’, as shown by the WVDEP’s response to inquiries from the EPA and
the regulated community seeking clarification of the WVDEP’s interpretation of S.B. 615. All
three of these arguments were dealt with and rejected in turn by the Court in Marfork. 2013 WL
4506175, at *8-12; see also Fola Coal, No. 2:12-3750, at *19-20. The Court will not revisit its
decisions regarding those issues.
Defendants also argue that § 47-30-5.1.f was never properly promulgated under state or
federal law and that, therefore, it is not an enforceable permit condition. The Court explored this
argument in depth in its recent decision, Ohio Valley Environmental Coalition, Inc. v. Fola Coal
Co., and ultimately found that § 47-30-5.1.f is an explicit and enforceable condition of
WV/NPDES permits, based upon five conclusions: 1) permit holders may not collaterally attack
their WV/NPDES permits in enforcement actions; alternatively, 2) to the extent that permittees
may attack their permits, they are now time-barred from bringing such actions, despite the
discovery rule; 3) more likely than not, the original water quality standards provision—the
precursor to § 47-30-5.1.f—was properly promulgated, and in any event, the defendant in Fola
Coal—like Defendants here—failed to meet its burden of demonstrating that the rule should now
be overturned as improperly promulgated; 4) the incorporation of the state’s water quality
standards into the WV/NPDES permits through § 47-30-5.1.f is consistent with the CWA; and 5)
even if the promulgation of the original version of § 47-30-5.1.f was improper, any such defect

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has been cured by subsequent repromulgation. No. 2:12-3750, at *21-39. Therefore, if
Defendants violate the WV/NPDES permit condition incorporating § 47-30-5.1.f, they remain
unprotected by CWA’s permit shield. Id. at *20, 39. The Court will briefly discuss the support
for each of these conclusions in turn.
1. Defendants may not collaterally attack their WV/NPDES permits in an
enforcement action
If a permit-holder wishes to attack the terms of an NPDES permit issued by a state
permitting authority, it must bring an action challenging the terms of the permit under state
procedures;3 thus, such a permit holder may not seek collateral review of the permit in federal
court. Id. at *22. Defendants appear not to have sought such review here. Regardless, a collateral
attack of NPDES permits in a federal enforcement action such as this would remain
inappropriate because federal law provides no mechanism for Defendants to challenge their
permits in this proceeding. Id. at *23 n.6.
Any challenge to § 47-30-5.1.f directly—as opposed to a challenge to the permit
condition incorporating § 47-30-5.1.f—also cannot be brought in an enforcement proceeding
such as this. West Virginia’s State Administrative Procedures Act (“APA”) provides for
declaratory judgments concerning the validity of a state rule. W. Va. Code § 29A-4-2(a); Fola
Coal, No. 2:12-3750, at *23. Such a case must be brought within one year of the promulgation of
the challenged rule in the Circuit Court of Kanawha County, West Virginia, and the applicable
agency must be made a party to the proceeding. W. Va. Code §§ 29A-4-2(a), 55-2-12(c); Fola
Coal, No. 2:12-3750, at *23-24. As in Fola Coal, Defendants here are not bringing a declaratory
3

Even if Defendants’ challenge to their permits was otherwise proper—which it is not—, such a challenge would
remain problematic due to its late timing: “West Virginia law provides that a permit-holder may file an
administrative appeal of his or her permit, but the permit-holder must file a notice of such appeal within 30 days of
issuance of the permit.” Fola Coal, No. 2:12-3750, at *22-23 (emphasis added). The WV/NPDES permits in this
case were issued in 2007, 2008, and 2010. Stip. ¶¶ 4, 15, 28, 48. Thus, the statute of limitations for such an appeal
has already run.

8

judgment suit against the WVDEP that the water quality standards provision cannot be included
in its permits or enforced according to its literal terms, and this Court is not the Circuit Court of
Kanawha County, West Virginia.4 Fola Coal, No. 2:12-3750, at *24. Thus, Defendants’
attempted collateral attack of their permits in this federal enforcement action—by arguing that §
47-30-5.1.f is unenforceable—is improper.
Although the WVDEP could modify a WV/NPDES permit—and though there is no time
limit for a permit-holder to seek such modification—, the proper route through which to seek this
modification is to lodge a request with the WVDEP, not to challenge a permit during an
enforcement action in federal court. Id. at *27. Further, there is no indication that the EPA or the
WVDEP is engaging in any sort of formal review of § 47-30-5.1.f, the rule which is herein
contested. Id.
Defendants’ argument regarding the alleged improper promulgation of § 47-30-5.1.f is
thus barred under Fola Coal as an improper collateral attack by Defendants on their WV/NPDES
permits.
2. To the extent that Defendants may attack their permits, they are now timebarred from bringing such actions, despite any applicability of the discovery rule
Alternatively, to the extent that Defendants are permitted to attack the promulgation of §
47-30-5.1.f in connection with their WV/NPDES permits, such an attack is time-barred. The
statute of limitations for a facial challenge to a rule—including procedural challenges, such as
Defendants’ argument that § 47-30-5.1.f was improperly promulgated—begins to run when the
rule is promulgated. Id. at *24-25. Here, the water quality standards provision of § 47-30-5.1.f

4

Even if Defendants’ challenge to § 47-30-5.1.f was otherwise proper—which it is not—, such a challenge is again
untimely, given that the statute of limitations for such an action is one year and § 47-30-5.1.f was promulgated
nearly thirty years ago. Fola Coal, No. 2:12-3750, at *25.

9

became effective in 1985, nearly thirty years ago. Id. at *25. This action is, thus, well outside the
applicable one-year statute of limitations under West Virginia law. Id.
Even if Defendants were otherwise properly bringing an action against the EPA, arguing
that its approval of the provision was procedurally invalid, Defendants had only six years after
federal approval of the state program to do so.5 Id. Such approval occurred in 1985, so
Defendants’ instant challenge would still be occurring well outside of the applicable six-year
period. Id. Thus, Defendants are time-barred from attacking the promulgation of § 47-30-5.1.f in
connection with their WV/NPDES permits.
Defendants nevertheless argue that the discovery rule should lead to the conclusion that
the statute of limitations has not run since it only began to run upon the discovery by Defendants
of Plaintiffs’ “novel” interpretation of the incorporation of § 47-30-5.1.f into the WV/NPDES
permits. Under the discovery rule, “the statute of limitations does not begin to run until plaintiffs
discover, or reasonably should have discovered, all the elements of their claim.” Natural Res.
Def. Council v. EPA, 806 F. Supp. 1263, 1277 n.14 (E.D. Va. 1992) (emphasis added). By the
explicit incorporation of § 47-30-5.1.f into all WV/NPDES permits, compliance with water
quality standards became a clear condition of Defendants’ permits. See also Fola Coal, No. 2:123750, at *26. This unambiguous language, together with the rule requiring inclusion of the water
quality provision of § 47-30-5.1.f in WV/NPDES permits, precludes Defendants’ reliance on the
discovery rule. See also id. As this Court stated in Fola Coal, “The effect of § 47-30-5.1.f has
been apparent from the issuance of the permits, even if no suit was brought until recent years to
enforce that provision.” Id. The WV/NPDES permits in this case were issued in 2007, 2008, and
2010. Stip. ¶¶ 4, 15, 28, 48. Thus, the discovery rule does not change the fact that the statute of

5

A six-year statute of limitations applies to any suit against the federal government. 28 U.S.C. § 2401(a).

10

limitations already ran on any state action attacking the condition which incorporates § 47-305.1.f into these WV/NPDES permits.
3. It is more likely than not that the original precursor to § 47-30-5.1.f was
properly promulgated; additionally, Defendants fail to meet their burden of
demonstrating that the rule should now be overturned as improperly
promulgated
In Fola Coal, this Court found that it is more likely than not that the original water
quality standards provision—the precursor to § 47-30-5.1.f—was properly promulgated.
Under West Virginia’s version of the APA, a rule is only effective if it is properly
promulgated. W. Va. Code § 29A-3-1; Fola Coal, No. 2:12-3750, at *27. Two provisions of
West Virginia’s State APA are key to Defendants’ argument that the precursor to § 47-30-5.1.f
was never duly promulgated: West Virginia Code § 29A-3-6 and § 29A-3-8. Section 29A-3-6
states, “If the agency amends the proposed rule as a result of the evidence or comment presented
pursuant to section five, such amendment shall be filed with a description of any changes and a
statement listing the reasons for the amendment.” W. Va. Code § 29A-3-6(a) (emphasis added).
Section 29A-3-8 states, “A procedural or interpretive rule may be amended by the agency prior
to final adoption without further hearing or public comment. No such amendment may change
the main purpose of the rule.” W. Va. Code § 29A-3-8 (emphasis added).
First, Defendant fails to provide any evidence that the addition of the water quality
standards provision to the precursor to § 47-30-5.1.f was “a result of the evidence or comment
presented” pursuant to the West Virginia APA’s notice and comment period. The procedural
requirement of filing an amended rule together with a description of any changes and a list of
reasons for the amendment is only triggered when the amendment is the result of evidence or
comment presented during the notice and comment period. Defendants have failed to provide
any evidence that the amendment is the result of such evidence or comment. Thus, they fail to

11

show that this procedural requirement attached to the addition of the water quality standards
provision during the promulgation of the precursor to § 47-30-5.1.f. Therefore, Defendants have
failed to show that the precursor to § 47-30-5.1.f was improperly promulgated under § 29A-3-6.
Second, assuming, without deciding, that the precursor to § 47-30-5.1.f was a procedural
or interpretive rule, § 29A-3-8 would only have required further hearing or public comment after
an amendment had been made to the precursor of § 47-30-5.1.f by the agency if the amendment
changed the main purpose of the rule. As explained below, the addition of the water quality
standards provision to the precursor of § 47-30-5.1.f did not change the main purpose of the rule.
Prior to 1984, the West Virginia Surface Coal Mining and Reclamation Act
(“WVSCMRA”) and the West Virginia Water Pollution Control Act were administered by
separate entities. Fola Coal, No. 2:12-3750, at *29. Originally, the NPDES permitting rules in
West Virginia did not include language requiring a permit holder to comply with water quality
standards. See W. Va. Code R. 20-5A, Series II (1981).6 In 1984, West Virginia’s surface mining
rules (under Article 6) and the state’s water pollution control rules related to coal facilities (under
Article 5A) were consolidated, and coal facilities were made subject to their own separate
administrative permitting process, administered by the West Virginia Department of Natural
Resources—the precursor to the WVDEP. Fola Coal, No. 2:12-3750, at *29. The revised version
of the WV/NPDES rules for coal facilities proposed in October 1984 included—apparently for
the first time—the requirement that discharges meet water quality standards:
The effluent or effluents covered by this permit are to be of such quality so as not
to cause violation of applicable water quality standards adopted by the State
Water Resources Board. Further, any activities covered under this permit shall not
lead to pollution of the groundwater of the state as a result of the disposal or
discharge of such wastes covered herein.

6

Available at http://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=22240&Format=PDF. These original rules
applied to all WV/NPDES permits issued for any and all industries or activities.

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W. Va. Code R. Art. 5A/NPDES Regulations, § 10E.01(f) (1984).7
Surface mining regulations effective in August 1984—prior to the October 1984 version
of the consolidated WV/NPDES rules—stated that “[d]ischarge from the permit area shall not
violate effluent limitations or cause a violation of water quality standards.” Water Quality, §
6B.04(b).8 The preamble to the later proposed consolidated regulations explained the purposes of
consolidation, which included “provid[ing] one-stop shopping for permits required under both
the Water Pollution Control [Act] and the [WVSCMRA].” Preamble to Proposed Regulations
Consolidating the Article 5A and Article 6 Program, at 2.9 In Fola Coal, this Court thus
concluded that the water quality standards language was likely inserted into the consolidated
WV/NPDES rules to make them consistent with the state’s already existent surface mining
regulations—in essence, to create the one-stop shopping that was the goal of the consolidated
rules in the first place. No. 2:12-3750, at *30. This Court also found that the addition of the water
quality provision did not change the main purpose of the consolidated regulations—that purpose
being the consolidation, itself. See id. at *32. Thus, Defendants have not shown that the
precursor to § 47-30-5.1.f was improperly promulgated under § 29A-3-8.
Though legislative history on the promulgation of the precursor to § 47-30-5.1.f is
patchy, the clearly stated goal of consolidating the permitting process under both laws and the
fact that numerous changes were made to the proposed rules as they moved through the
rulemaking process also add to the Court’s conclusion that it is more likely than not that the

7

“Approved”
Proposed
Regulations,
Oct.
18,
http://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=15239& Format=PDF.

1984,

available

8

at

Available at http://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=6984&Format=PDF, at 69. Proper citation is
impossible because the title of the rule is omitted from the PDF—which is missing pages 1 through 4.
9

Available at http://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=15239&Format=PDF, at 2-10.

13

original water quality standards provision—the precursor to § 47-30-5.1.f—was properly
promulgated.10 Id. at *31-32.
Defendants argue further that the EPA never properly approved of § 47-30-5.1.f.
Regarding EPA approval of revisions to a state’s existing NPDES program, the Code of Federal
Regulations states:
Whenever EPA determines that the proposed program revision is substantial, EPA
shall issue public notice and provide an opportunity to comment for a period of at
least 30 days. The public notice shall be mailed to interested persons and shall be
published in the Federal Register and in enough of the largest newspapers in the
State to provide Statewide coverage. The public notice shall summarize the
proposed revisions and provide for the opportunity to request a public hearing.
Such a hearing will be held if there is significant public interest based on requests
received.
40 C.F.R. § 123.62(b)(2). The EPA’s public notice regarding consolidation of surface mining
and water pollution control regulations for coal facilities in West Virginia appeared at 50 Fed.
Reg. 2996-02 (Jan. 23, 1985). In Fola Coal, this Court concluded that the public was properly on
notice that the drafted version of the consolidated rules included the water quality standards
provision because of the stated purpose of the consolidation to provide one-stop shopping for
permits required under both the Water Pollution Control Act and the WVSCMRA and because
West Virginia’s existing surface mining regulations already contained such a requirement. No.
2:12-3750, at *33.
In any event, Defendants here—like the defendant in Fola Coal—failed to meet their
burden of demonstrating that the rule should now be overturned as improperly promulgated.11 Id.

10

Furthermore, this Court in Fola Coal found that the addition of the water quality standards language was a
“logical outgrowth” of the earlier draft(s) of the consolidated rules. Id. at *32 n.19.
11

If Defendants brought a direct challenge to state agency rule promulgation, they would have to show that “the rule
violates constitutional provisions or exceeds the statutory authority or jurisdiction of the agency or was adopted
without compliance with statutory rule-making procedures or is arbitrary or capricious . . . .” W. Va. Code § 29A-42(b); see also 5 U.S.C. § 706(2)(D) (a court can “hold unlawful and set aside agency action, findings, and
conclusions found to be . . . without observance of procedure required by law”).

14

at *34. Thus, Defendants’ argument that § 47-30-5.1.f was improperly promulgated—and that it
is therefore unenforceable as a WV/NPDES permit condition—fails on its merits.
4. The incorporation of the state’s water quality standards into the WV/NPDES
permits through § 47-30-5.1.f is consistent with the CWA
Defendants also argue that the incorporation of the state’s water quality standards into
WV/NPDES permits through § 47-30-5.1.f is inconsistent with the CWA because it is more
stringent than the requirements of the CWA. However, as this Court stated in Fola Coal, “[t]he
enforceability of the water quality standards provision is not a modification of the CWA—rather,
it is consistent with the CWA.” Id. State law standards are incorporated into the CWA—even if
they are more stringent than federal standards under the CWA—and are thus enforceable through
citizen suits under 33 U.S.C. § 1365.12 Id.; Parker v. Scrap Metal Processors, Inc., 386 F.3d 993,
1006-08 & n.15 (11th Cir. 2004). Under the CWA, entities must follow “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). Also, all NPDES permits must comply
“with the applicable water quality requirements of all affected States.” 40 C.F.R. § 122.4(d). This
regulation effectively incorporates state-law standards into federal law. See Arkansas v.
Oklahoma, 503 U.S. 91, 110 (1992). Since the CWA allows for enforcement of a state’s permit
water quality provisions, even when—as here—the state standards may be stricter than federal
standards, the incorporation of West Virginia’s water quality standards into WV/NPDES permits
through § 47-30-5.1.f is consistent with the CWA.

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Plaintiffs’ citizen suit clearly falls within the ambit of 33 U.S.C. § 1365(a)(1), which states,
[A]ny citizen may commence a civil action . . . against any person who is alleged to be in violation
of . . . an effluent standard or limitation under this chapter or . . . an order issued by the
Administrator or a State with respect to such a standard or limitation . . . .
Per Marfork, the WV/NPDES permit condition incorporating § 47-30-5.1.f is enforceable as an “effluent standard or
limitation” under § 1365(a).

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5. Even if the promulgation of the original version of § 47-30-5.1.f was improper,
any such defect has been cured by subsequent repromulgation
Finally, this Court in Fola Coal also rejected the defendant’s argument that the
promulgation of § 47-30-5.1.f was improper—and that thus the permit condition incorporating §
47-30-5.1.f was unenforceable—by noting that any defect in the promulgation of § 47-30-5.1.f
has been cured by subsequent repromulgation. No. 2:12-3750, at *37-39.
At least two of the revisions to the predecessor of § 47-30-5.1.f over the nearly thirty
years since the rule’s initial promulgation involved direct changes to the water quality standards
provision here at issue. Id. at *37-38. Proposed amendments in 1987/1988 made it clear that the
West Virginia Department of Natural Resources planned to change the very sentence that
prohibited violation of water quality standards. Id. The same is true for an amendment in
1996/1997. Id. Thus, even if the earlier notice-and-comment rulemaking was defective, any such
defect was cured by subsequent repromulgations because such repromulgations provided a
meaningful opportunity for interested parties to comment on the water quality standards portion
of the predecessor to § 47-30-5.1.f. Id. at *39.
6. Defendants’ additional argument that the promulgation of § 47-30-5.1.f was
improper because WVDEP’s predecessor improperly failed to submit an
updated fiscal note to the Legislative Rulemaking Committee fails for the same
reasons as Defendants’ other arguments that § 47-30-5.1.f was improperly
promulgated
In their Reply, Defendants additionally argue—for the first time—that the WVDEP’s
predecessor, after adding the water quality standards provision to the predecessor to § 47-305.1.f, failed to submit an updated fiscal note to the Legislative Rulemaking Committee
highlighting § 47-30-5.1.f’s expansion of regulatory and administrative burdens on the coal
industry and the State—despite the fact that West Virginia’s version of the APA requires that
“[i]f the fiscal implications have changed since the rule was proposed, a new fiscal note shall be

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attached to the notice of filing.” W. Va. Code § 29A-3-8. Defendants argue that the incorporation
of § 47-30-5.1.f into the WV/NPDES permits would “radically expand the scope of the proposed
rules” and “increase the financial burdens to both individual permittees and the State.” Defs.’
Reply 7.13 As discussed earlier, Defendants may not collaterally attack the validity of their
permits or the promulgation of § 47-30-5.1.f in this forum. Additionally, they are time-barred
from doing so. Finally, the Court disagrees with Defendants’ assessment of the net cost of § 4730-5.1.f—for which Defendants offer no supporting documentation. As discussed earlier, the
water quality standards requirement of § 47-30-5.1.f was likely merely the result of the larger
purpose of consolidating two programs, under one of which—the surface mining regulations—
Defendants would have already been required to meet state water quality standards. Thus, the
cost to individual permittees would have remained the same, and the cost to the State would have
stayed the same or been reduced, given that, after the promulgation of the new rules, the State
needed only to administer one program, instead of two.
Thus, Defendants’ argument that § 47-30-5.1.f was never properly promulgated under
state or federal law and that, therefore, it is not an enforceable permit condition fails. As a result,
Defendants are not protected by the permit shield if they violate state water quality standards
because their WV/NPDES permits explicitly incorporate § 47-30-5.1.f, which is an enforceable
rule that requires compliance with state water quality standards.
C. Defendants’ Due Process Rights Have Not Been Violated
In their Reply, Defendants argue briefly—and for the first time—that, if § 47-30-5.1.f
requires Defendants to comply with water quality standards “despite compliance with their
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Defendants also cite to ECF No. 59-19 at 1 for a statement by the West Virginia Department of Natural Resources
in its initial Statement of Economic Impact of Proposed Rules or Regulations that the rules package would have no
impact on the regulated community and would, in fact, “reduce costs due to [sic] one-stop permitting process.”
Defs.’ Reply 7. However, ECF No. 59-19 is actually the Preamble to Approved Regulation Consolidating the Article
5A and Article 6 Program—not a Statement of Economic Impact of Proposed Rules or Regulations. Page one of the
exhibit does not contain this quote.

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WV/NPDES permits’ effluent limitations,” the imposition of liability for noncompliance would
violate their due process rights. Defs.’ Reply 19. However, as explained above, if Defendants are
in violation of water quality standards, they are not in compliance with their WV/NPDES
permits because the permits incorporate § 47-30-5.1.f, which clearly states that discharges under
the permits must be in compliance with water quality standards.
Defendants argue that they reasonably relied upon the permit shield to protect them from
suits based upon violations of water quality standards when specific effluent limitations in the
permit have not been violated and that Plaintiffs’ interpretation of the permit condition
incorporating § 47-30-5.1.f deprives them of notice in violation of their due process rights.
Defendants then re-argue that 1) the West Virginia Legislature clarified that Defendants’
interpretation of whether the WV/NPDES permits incorporate § 47-30-5.1.f was correct by
passing S.B. 615, 2) the WVDEP implemented this interpretation of S.B. 615 by amending the
language of § 47-30-5.1.f, and 3) the WVDEP’s interpretation of S.B. 615 is the same as
Defendants’, as shown by the WVDEP’s response to inquiries from the EPA and the regulated
community seeking clarification of the WVDEP’s interpretation of S.B. 615.
As discussed earlier, this Court already decided these issues in Marfork. 2013 WL
4506175, at *10-12. There, this Court ruled that S.B. 615 is ambiguous on this issue, that the
WVDEP’s amendment to § 47-30-5.1.f is ambiguous and has no new effect, and that the
WVDEP’s interpretation of S.B. 615 has been contradictory. Id. Thus, Defendants’ reliance on
these sources for its interpretation of the permit condition incorporating § 47-30-5.1.f was not
reasonable. Further, as stated above, the permit condition and § 47-30-5.1.f, itself, are both
unambiguous in imposing liability upon Defendants in the event that they violate water quality
standards through discharges under their permits. Defendants have had notice of the possibility

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of civil liability since the predecessor to § 47-30-5.1.f first became effective in 1985 or, in any
event, no later than the date on which the permits, inclusive of this clear permit condition, were
issued. Thus, Defendants’ argument that their due process rights are violated by the imposition of
liability for violations of the WV/NPDES permit condition incorporating § 47-30-5.1.f is without
merit.
III.

CONCLUSION

For the reasons stated above and for the reasons outlined in the Court’s November 25,
2013, Memorandum Opinion and Order, ECF No. 84, the Court DENIES Defendants’ Motion
for Summary Judgment, ECF No. 59.
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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January 3, 2014