Ohio Valley Environmental Coalition, Inc. v. Marfork Coal Company, Inc.

Filing 98

MEMORANDUM OPINION AND ORDER: Pending are cross-motions for partial summary judgment filed by Plaintiffs 55 and Defendant Marfork Coal Co., Inc. 50 . The Court Grants in Part Marfork's motion as to the lack of standing of three of the plaintiffs, but otherwise Denies the parties' motions. Signed by Judge Robert C. Chambers on 8/22/2013. (cc: attys; any unrepresented party) (cds)

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

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

CIVIL ACTION NO. 5:12-1464

MARFORK COAL COMPANY, INC., and
INDEPENDENCE COAL COMPANY, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending are cross-motions for partial summary judgment filed by Plaintiffs Ohio Valley
Environmental Coalition, Inc., West Virginia Highlands Conservancy, Inc., Coal River Mountain
Watch, and Sierra Club (“Plaintiffs”), ECF No. 55, and Defendant Marfork Coal Co., Inc.
(“Marfork”), ECF No. 50. For the reasons stated below, the Court GRANTS in part Marfork’s
motion as to the lack of standing of three of the plaintiffs, but otherwise DENIES the parties’
motions.
I.

BACKGROUND

Plaintiffs filed this case 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 Marfork violated these statutes by

discharging excessive amounts of selenium into the waters of West Virginia. Before proceeding

to the parties’ arguments, the Court will first discuss the relevant regulatory framework and then
the factual background of this case.
A.

Regulatory Framework
The primary goal of the Clean Water Act 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 a National Pollutant Discharge Elimination System
(“NPDES”) permit. 33 U.S.C. §§ 1311(a), 1342. Under the NPDES, the U.S. Environmental
Protection Agency (“EPA”) or 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 state-run 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”).
Coal mines are also subject to regulation under the Surface Mining Control and
Reclamation Act and the West Virginia Surface Coal Mining and Reclamation Act
(“WVSCMRA”). These statutes prohibit any person from engaging in or carrying out surface
coal mining operations without first obtaining a permit. 30 U.S.C. § 1256. Regulations passed
pursuant to WVSCMRA require permittees to comply with the terms and conditions of a permit
and all applicable performance standards.

W. Va. Code R. § 38-2-3.33c.

One of these

performance standards requires that mining discharges “shall not violate effluent limitations or
cause a violation of applicable water quality standards.” Id. § 38-2-14.5b. These limitations are
guided by the NPDES permit. Water quality standards establish conditions which must be
maintained to preserve designated uses of the state’s waters; such uses include public health and

2

the protection of animal, aquatic, and plant life. 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.
B.

Factual Background
Marfork owns and operates the Brushy Fork Slurry Impoundment and the adjacent Beetree

Surface Mine in Raleigh County, West Virginia. The impoundment is subject to WV/NPDES
Permit Number WV10150441 (“Impoundment Permit”) and to Surface Mining Permit Number
O301095. Marfork obtained a separate WV/NPDES permit, number WV1021788, to operate the
Beetree Surface Mine (“Beetree Permit”). The Impoundment Permit regulates the discharges
from the impoundment, which has only one outlet, Outfall 001. See Permit WV1015044, ECF
No. 55-1. The outfall discharges directly into the stream known as Brushy Fork.2 From the
discharge point, Brushy Fork flows approximately 29 feet before it flows into Little Marsh Fork,
which in turn flows into Marsh Fork. See Williams Aff. ¶ 3, ECF No. 50-1.
Both the Impoundment Permit and the Beetree Permit require Marfork to limit and monitor
the contents and characteristics of its discharges.

The Impoundment Permit sets effluent

discharge limitations for specific pollutants: iron, manganese, and aluminum.

Permit

WV1015044 at 2, ECF No. 55-1. The Impoundment Permit does not identify selenium as one of
the discharge constituents to be specifically limited and monitored. Id. The Beetree Permit,

1

The complaint mistakenly identifies Independence Coal Company as the holder of WV/NPDES
Permit WV1015044 and WVSCMRA Permit O30195. Compl. ¶¶ 42, 43. Marfork
acknowledges that it is the holder of these permits. ECF No. 52 at 4.

2

WVDEP describes the stream and its flow as “Brushy Fork of Little Marsh Fork of Marsh Fork
of the Big Coal River of the Coal River of the Kanawha River.” ECF No. 55-1 at 1.
3

which allows Marfork to discharge treated water and runoff into Brushy Fork and other streams,
does require Marfork to measure and report the concentration of selenium in its discharge. Permit
WV1021788 at 2-17, ECF No. 55-2. While the Beetree Permit lists selenium among the specific
effluents in the permit, it does not set a specific discharge limitation; only monitoring and
reporting is required.
Both permits incorporate the following provision:
The discharge or 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 47CSR2.
W. Va. Code R. § 47-30-5.1.f. West Virginia’s WV/NPDES rules for coal mining facilities
require this provision to be “incorporated into the WV/NPDES permits either expressly or by
reference.”

Id. § 47-30-5.

West Virginia’s water quality standards promulgated for the

protection of aquatic life impose limitations on selenium: an acute limitation of 20 parts per billion
(“ppb”) and a chronic limitation of 5 ppb. Id. § 47-2, App’x E, tbl. 1. The acute limitation is
defined as a “one-hour average concentration not to be exceeded more than once every three years
on the average.” Id. The chronic limitation is a “four-day average concentration not to be
exceeded more than once every three years on the average.” Id. n.2.
Plaintiffs assert three claims against Marfork, all based upon its alleged discharge of
selenium into Brushy Fork. First, Plaintiffs allege that Marfork is in violation of the CWA and
the Impoundment Permit because its discharges from Outfall 001 caused violations of the chronic
and acute water quality standards for selenium in Brushy Fork. Second, Plaintiffs allege that
Marfork is in violation of the SMCRA and its WV/SCMRA permit for the same reason. Third,
Plaintiffs claim that Marfork is in violation of the SMCRA and its WV/SCMRA permit by failing
to install, operate, and maintain adequate treatment facilities as necessary to prevent discharges
that violate state or federal law.
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II.

ANALYSIS

The parties dispute three primary issues, which the Court will address in turn after setting
forth the standard for summary judgment. First, the Court will determine whether Plaintiffs have
constitutional standing to sue.

Second, the Court will discuss the statutory CWA “permit

shields.” Third, the Court will identify the terms and conditions of Marfork’s permit and will
determine whether Plaintiffs have satisfied their burden of proof of CWA and SMCRA violations.
A.

Legal 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). In considering a motion for summary judgment, the Court will not “weigh the
evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). 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, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most favorable
to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence
from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S.
at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on
an essential element 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 or her position. Anderson, 477 U.S. at 252.

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B.

Constitutional Standing
In order to bring any action in federal court, a plaintiff must have standing—that is, a

plaintiff must have a sufficient personal stake in the outcome of the matter being litigated to make
it justiciable under Article III of the Constitution. See Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp. (“Gaston Copper I”), 204 F.3d 149, 153 (4th Cir. 2000) (citation omitted); see
also U.S. Const. art. III (restricting federal courts to adjudicating “cases” and “controversies”). In
order to satisfy the minimum constitutional requirements for standing, a plaintiff must
demonstrate:
(1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable
to the challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
When the plaintiff in question is an organization, it “has standing to sue on behalf of its
members when ‘(a) its members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit.’”
Am. Canoe Ass’n, Inc. v. Murphy Farms, Inc., 326 F.3d 505, 517 (4th Cir. 2003) (quoting Hunt v.
Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). Among the injuries that may be
addressed by a federal court are those to “an individual’s aesthetic or recreational interests.”
Gaston Copper I, 204 F.3d at 154 (citing Laidlaw, 528 U.S. at 184). This is of particular
relevance to environmental cases. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 734-36 (1972).
In environmental cases, the “relevant showing for purposes of Article III standing . . . is not injury
to the environment but injury to the plaintiff.” Laidlaw, 528 U.S. at 181.
6

Plaintiffs seek to establish standing through two individual declarants: Lisa Snodgrass and
Robert Goodwin. Plaintiffs argue that they have standing based on their use of Little Marsh Fork,
downstream from Brushy Fork. To determine whether these declarants have suffered an injury in
fact, the Court must first decide whether Little Marsh Fork is affected by Marfork’s discharge into
Brushy Fork. Second, the Court will analyze the nature of the declarants’ alleged injuries.
Third, the Court will decide whether the organizational Plaintiffs have satisfied the standing
requirements.
1.

Little Marsh Fork is an “affected area”

Marfork argues that Plaintiffs cannot establish an injury in fact because the areas used by
their members are too far removed from the area allegedly contaminated by the discharge from the
impoundment. Outfall 001 of the impoundment discharges directly into Brushy Fork, which
empties into Little Marsh Fork. Marfork argues that the only “affected area” of its discharge is
Brushy Fork—the immediate receiving stream for Outfall 001. Marfork argues that Brushy Fork
is located entirely on private property and because Plaintiffs do not have access to Brushy Fork,
they cannot be injured by the discharge of selenium into it. The Court must therefore determine
whether Little Marsh Fork is within the zone of impact of Defendant’s activities before analyzing
Plaintiffs’ specific claims of standing.
As this Court explained in Ohio Valley Environmental Coalition, Inc. v. Maple Coal
Company, 808 F. Supp. 2d 868 (S.D. W. Va. 2011), standing does not require a court to determine
the merits of the environmental violations alleged. 808 F. Supp. 2d at 882 (citing Laidlaw, 528
U.S. at 181). Rather, standing requires a demonstration that if the allegations of the CWA
violations are true, the impacts of the alleged violations are felt in an area with which the plaintiffs
have “a direct nexus.” Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. (Gaston

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Copper II), 629 F.3d 387, 395 (4th Cir. 2011). Plaintiffs may rely on “circumstantial evidence
such as proximity to polluting sources, predictions of discharge influence, and past pollution to
prove both injury in fact and traceability.” Gaston Copper I, 204 F.3d at 163. To require more
would contravene the otherwise “straightforward Clean Water Act issue of whether [the
defendant] has violated its permit limitations[,]” thereby “throw[ing] federal legislative efforts to
control water pollution into a time warp by judicially reinstating the previous statutory regime in
the form of escalated standing requirements.” Id. at 163-64.
The Court FINDS that the portion of Little Marsh Fork used by Plaintiffs is an area
affected by discharge into Brushy Fork; consequently, Plaintiffs’ use—or abstention from use—of
Little Marsh Fork constitutes an injury in fact fairly traceable to the alleged violations. First, the
proximity of Little Marsh Fork to the point of discharge supports the conclusion that discharge
violations into Brushy Fork affect Little Marsh Fork. By Marfork’s own estimate, Plaintiffs’ use
of Little Marsh Fork and Marsh Fork is at an area approximately 3.72 miles from the end of Brushy
Fork.3 Williams Aff. ¶ 3, ECF No. 50-1. This relatively short distance and the fact that Brushy
Fork runs directly into Little Marsh Fork is circumstantial evidence that supports the conclusion
that Little Marsh Fork is an “affected area.” Cf. Friends of the Earth, Inc. v. Crown Cent.
Petroleum Corp., 95 F.3d 358, 361 (5th Cir. 1996) (finding plaintiffs’ claims too attenuated where
they used a body of water “located three tributaries and 18 miles” downstream from the
defendant’s refinery); see also Friends of the Earth, Inc. v. Chevron Chem. Co., 900 F. Supp. 67,

3

Because Plaintiffs do not challenge Marfork’s estimate, the Court will use that measure. The
Court notes, however, that Defendant’s estimate is the distance between County Route 3 and the
end of Brushy Fork. The declarants each testified to enjoying (or formerly enjoying) other parts
of Little Marsh Fork and Marsh Fork, at points closer to the end of Brushy Fork. Because their
refraining from enjoying the areas they previously enjoyed is a sufficient injury in fact, these areas
are also “affected areas.” For purposes of resolving this standing dispute, however, the Court will
use the parties’ estimate.
8

75 (E.D. Tex. 1995) (concluding that a distance of two to four miles between source of pollution
and waterway used by plaintiffs was not too great to infer causation). Furthermore, Plaintiffs
have produced evidence that selenium pollution is capable of traveling at least that great a
distance. WVDEP, Selenium-Induced Developmental Effects among Fishes in Select W. Va.
Waters 3-4 (Jan. 2010), ECF No. 64-2.
Second, Little Marsh Fork was within the state’s contemplated impact area during
Marfork’s permitting process.

Pursuant to federal regulations, WVDEP performed an

“assessment of the probable cumulative hydrologic impacts (CHIA) of the proposed operation and
all anticipated mining upon surface- and ground-water systems in the cumulative impact area.”
30 C.F.R. § 780.21(g)(1). The CHIA prepared for Marfork’s Brushy Fork Slurry Impoundment
analyzed the Little Marsh Fork watershed, sampling surface water sites in both Little Marsh Fork
and Brushy Fork. CHIA 1-2, ECF No. 62-6. WVDEP’s decision to analyze Little Marsh Fork as
part of Marfork’s permitting process is circumstantial evidence of predictions of discharge
influence, which supports the conclusion that Little Marsh Fork is within the affected area.
Finally, Plaintiffs have produced evidence that selenium has been detected in Little Marsh
Fork and Marsh Fork, downstream of Brushy Fork.

Analyses of water samples taken on

consecutive days in October and December 2012 from Little Marsh Fork indicated the presence of
selenium. Betcher Decl. ¶ 25, App’x F & G, ECF No. 55-9. This evidence provides additional
support for the conclusion that Little Marsh Fork is within the affected area of Marfork’s alleged
violations. See Crown Cent. Petroleum Corp., 95 F.3d at 362 (stating that plaintiffs may satisfy
the “fairly traceable” element of standing in part by producing “water samples showing the
presence of a pollutant of the type discharged by the defendant upstream”).

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2.

Declarants’ use of the affected area

Having concluded that Little Marsh Fork is an affected area, the Court will now determine
whether a “direct nexus exist[s] between the plaintiffs and the area of environmental impairment.”
Gaston Copper II, 629 F.3d at 395. Specifically, the Court must evaluate whether the individual
declarants have demonstrated an actual injury. Ms. Snodgrass has a lifelong connection to the
affected area, because she grew up along Little Marsh Fork. Snodgrass Decl. ¶ 4, ECF No. 55-10.
When she was young, she enjoyed playing, fishing, and searching for mudpuppies4 and crawdads
along Little Marsh Fork. Id. She and her family moved away from the area because “the dust
and the noise [from mining activities] got so bad we were concerned about our well water.”
Snodgrass Dep. 9, ECF No. 55-12. She and her family do not currently use the fork because of
her concern about pollution. Id. 13. She regrets that due to pollution, she cannot take her
granddaughter to the area to enjoy those same activities she enjoyed as a child. Id. Ms.
Snodgrass has observed physical deformities in the stream’s fish, and has seen many dead fish.
Unlike when she was a girl, mudpuppies are now difficult to find. If the stream were free of
pollution, she would go into the stream again. Snodgrass Decl. ¶ 6, ECF No. 55-10. Ms.
Snodgrass often drives along Marsh Fork; she used to enjoy seeing the river but now its current
polluted condition “breaks [her] heart.” Id. Ms. Snodgrass also has a family cemetery in the
area. Snodgrass Dep. 13-15, ECF No. 55-12. Based on Ms. Snodgrass’s testimony, the Court
has no doubt that her aesthetic and recreational uses of the area have been harmed such that
Marfork’s alleged violations create an imminent and actual injury to Ms. Snodgrass.
Plaintiffs’ second declarant, Robert Goodwin, is a resident of Kanawha County. Goodwin
Decl. ¶ 2, ECF No. 55-11. He is an avid canoer and hiker. He enjoys wading in streams and

4

“Mudpuppies” are large aquatic salamanders.
10

looking for aquatic life. Id. ¶ 5. He testified that on several occasions, he has sat beneath a
bridge near the confluence of the Little Marsh Fork and Marsh Fork, id. ¶ 10, and intends to do so
in the future, id. ¶ 14. He also canoes on Marsh Fork and intends to do so again. Mr. Goodwin
testified that his enjoyment of Little Marsh Fork is diminished when he thinks about the presence
of selenium and its potential effect on fish. Id. ¶ 13. Mr. Goodwin has demonstrated a
connection to the affected area. As the Court concluded with regard to Ms. Snodgrass’s activities,
the Court finds that Mr. Goodwin’s aesthetic and recreational uses have been harmed, such that he
has established an imminent and actual injury.
The Court rejects Marfork’s argument that Plaintiffs must show a violation of water quality
standards to demonstrate an injury in fact sufficient to confer standing. This argument is as
unavailing now as it was when raised by defendants in other cases, including Maple Coal. As the
Fourth Circuit explained in Gaston Copper I and reiterated in Gaston Copper II, plaintiffs need not
“demonstrate that the chemical content of the waterway was affected by the facility, or that there
was other negative change in the ecosystem of the water.” Gaston Copper II, 629 F.3d at 395
(citation omitted). Consequently, Plaintiffs’ alleged harms to their recreational and aesthetic
interests are sufficient to confer constitutional standing.
3.

Plaintiff Coal River Mountain Watch has satisfied the standing requirements

The Court concludes that the declarants, Ms. Snodgrass and Mr. Goodwin, have
demonstrated a concrete and particularized injury in fact that is fairly traceable to Marfork’s
activities and is likely to be redressed by a favorable decision in this case. Therefore, these
declarants’ injuries also confer standing on those organizations of which they are members. See
Am. Canoe Ass’n, Inc., 326 F.3d at 517. Here, Plaintiffs have submitted evidence that Ms.
Snodgrass and Mr. Goodwin are members of Coal River Mountain Watch (“CRMW”).

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Snodgrass Decl. ¶¶ 2-3; Goodwin Decl. ¶¶ 2-3. The interests CRMW seeks to protect in this
lawsuit are certainly germane to one of its purposes: to improve the environment and quality of life
in the southern coalfields of West Virginia. Finally, neither the claim asserted nor the relief
requested requires the participation of CRMW’s individual members. The Court FINDS that
CRMW has constitutional standing to assert its claims against Marfork.
There is no evidence, however, that either Ms. Snodgrass or Mr. Goodwin is a member of
any of the three remaining plaintiff organizations. See Goodwin Dep. 29, ECF No. 55-13 (“I
think [CRMW], I believe, is the only [environmental organization] that I would consider myself an
official member of.”). Plaintiffs have produced no other declarants to support standing against
Marfork. Accordingly, the Court FINDS that Plaintiffs Ohio Valley Environmental Coalition,
Inc. (“OVEC”), West Virginia Highlands Conservancy, Inc. (“WVHC”), and Sierra Club, have
failed to demonstrate standing against Marfork. The Court GRANTS IN PART Marfork’s
motion for partial summary judgment and enters judgment in favor of Marfork as to the claims of
OVEC, WVHC, and Sierra Club, for lack of jurisdiction. With respect to the claims of CRMW,
Marfork’s motion is DENIED.5
C.

Permit Shield Defense
Marfork argues that the “permit shield” provisions of the CWA, and, more recently, West

Virginia’s Water Pollution Control Act, protect it from liability. In this Part, the Court will
discuss the terms and scope of the federal and state permit shields.
1.

Federal CWA permit shield

Section 402(k) of the CWA, known as the “permit shield,” states:
5

The organizational plaintiffs OVEC, WVHC, and Sierra Club may proceed with their claims
against the co-defendant in this case, Independence Coal Company. For the reasons stated in a
separate memorandum opinion and order, Plaintiffs satisfied the standing requirements to assert
their claims against Independence.
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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 . . . .
33 U.S.C. § 1342(k).
In E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977), the Supreme Court
explained that the purpose of this section is “to insulate permit holders from changes in various
regulations during the period of a permit and to relieve them of having to litigate in an enforcement
action the question whether their permits are sufficiently strict.” 430 U.S. at 138 n.28. The
Fourth Circuit has described how this language operates: “if a permit holder discharges pollutants
precisely in accordance with the terms of its permit, the permit will ‘shield’ its holder from CWA
liability.” Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md., 268 F.3d 255, 266 (4th
Cir. 2001). Piney Run was a CWA citizen suit alleging that a county’s sewage treatment plant
was in violation of its NPDES permit, which was issued under Maryland’s approved program. At
the time, Maryland had promulgated water quality standards for the waters within its borders, as
the CWA required. A Maryland state regulation provided that “[i]n order to grant a permit or a
permit modification, the [Maryland Department of the Environment] must determine that the
discharger will not violate these water quality standards.” See id. at 260. Maryland’s water
quality standards included temperature standards. Id. The plant’s NPDES permit contained
express limitations on the amount of certain pollutants that may be discharged. Heat was not
listed among those limitations, nor did any other condition of the permit limit heat discharge.
Plaintiff argued that the plant was liable under the CWA for discharging a pollutant—heat—that
was not allowed by its permit. The plant claimed that the CWA’s permit shield protected it from
liability, because it was in compliance with the specific effluent limitations listed in its permit.

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To determine the scope of the permit shield’s protection, the court applied the familiar
Chevron analysis. Id. at 266-67. After finding the statutory language ambiguous as to the scope
of the permit protection, the Fourth Circuit deferred to the reasonable interpretation of the
Environmental Protection Agency. In evaluating the reasonableness of the interpretation, the
Court looked to the structure and purpose of the CWA. It observed that the CWA was a
fundamental change in the regulation of water pollution in that it “shifted the focus away from
water quality standards to direct limitations on the discharge of pollutants.” Id. at 265 (quoting
Gaston Copper I, 204 F.3d at 151). The court explained that the CWA establishes a default
regime of strict liability. An entity discharging a pollutant violates the CWA unless the discharge
fits within a limited exception, the primary exception being the NPDES permitting system. Id.
After a permit applicant fully discloses the nature of its effluent discharges to the permitting
authority, the authority analyzes the potential environmental risk and “places limits on those
pollutants that . . . it ‘reasonably anticipates’ could damage the environmental integrity of the
affected waterway.” Id. at 268. Therefore, the court reasoned, certain discharges are implicitly
authorized if they were disclosed and within the reasonable contemplation of the permitting
authority, because otherwise a permittee would violate the terms of its NPDES permit if it
discharged “an unlisted pollutant even at an infinitesimal amount.” Id. at 271.
The court concluded that CWA’s permit shield protects a permit holder that: (1) complies
with all conditions of its permit; (2) complies with the express discharge restrictions set forth on
the face of the permit; and (3) discharges pollutants that, although not specified in its permit, were
disclosed to the permitting authority and within its reasonable contemplation. Id. at 269.

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2.

State Senate Bill 615

In March 2012, the West Virginia Legislature enacted Senate Bill 615 to create a permit
shield of its own. The preamble of S.B. 615 declares:
AN ACT to amend and reenact §22-11-6 of the Code of West Virginia, 1931, as
amended, relating to making West Virginia’s Water Pollution Control Act
consistent with the federal Water Pollution Control Act, also known as the Clean
Water Act, by clarifying that compliance with the effluent limits contained in a
National Pollution Discharge Elimination System permit is deemed compliant with
West Virginia’s Water Pollution Control Act.
Senate Bill No. 615, Ex. 10, ECF No. 51-3 (emphasis added). The statute provides in relevant
part:
Notwithstanding any rule or permit condition to the contrary, and except for any
standard imposed under section 307 of the federal Water Pollution Control Act for
a toxic pollutant injurious to human health, compliance with a permit issued
pursuant to this article shall be deemed compliance for purposes of both this article
and sections 301, 302, 306, 307 and 403 of the federal Water Pollution Control Act.
. . . The provisions of this section addressing compliance with a permit are intended
to apply to all existing and future discharges and permits without the need for
permit modifications. However, should any such modification be necessary under
the terms of this article, then the secretary shall immediately commence the process
to effect such modifications.
W. Va. Code § 22-11-6(2). The operative language here—“compliance with a permit . . . shall be
deemed compliance for purposes of [the state law and the CWA]”—essentially tracks the language
of the federal permit shield. Compare W. Va. Code § 22-11-6(2), with 33 U.S.C. § 1342(k).
It appears that no state court has had an opportunity to address this new provision, which
became effective March 10, 2012. When required to determine the meaning of a state statute in
the absence of a state judicial opinion, federal courts must determine how the state’s highest court

15

would rule. 6 If the state’s highest court “has spoken neither directly nor indirectly on the
particular issue before [the federal court, then the federal court is] called upon to predict how that
court would rule if presented with the issue.” Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt
Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005) (citation omitted).
The Supreme Court of Appeals of West Virginia has adopted the two-part test set forth by
the United States Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Sniffin v. Cline, 456 S.E.2d 451, 455 (W. Va. 1995). That standard
requires the Court to first ask “whether the Legislature has ‘directly spoken to the precise [legal]
question at issue.’” Id. (quoting Chevron, 467 U.S. at 842). If the Legislature’s intent is clear,
“that is the end of the matter,” id. (quoting Chevron, 467 U.S. at 842), and the Court must give
effect to the expressed intent of the Legislature. If the statute is ambiguous, the second step of
Chevron requires the Court to “defer to the agency’s interpretation of its governing statute and
regulations, as long as (1) the agency has promulgated that interpretation pursuant to a
notice-and-comment rulemaking or a formal adjudication, and (2) the agency’s interpretation is
reasonable.” Piney Run, 268 F.3d at 267 (citing Christensen v. Harris County, 529 U.S. 576, 587
(2000) & Chevron, 467 U.S. at 843). The Court will therefore follow the approach used by the
Fourth Circuit in Piney Run and apply these standards to determine the scope of the state permit
shield.
The language of W. Va. Code § 22-11-6(2) is nearly identical to the language of the federal
statute, which the Fourth Circuit found ambiguous in Piney Run. Like the federal permit shield,
6

Although this case is before the Court based on federal question jurisdiction, state law
nonetheless applies to this particular issue and the Court must determine what the state law is. See
19 Arthur R. Miller, Fed. Prac. & Proc. § 4520 (2d ed.) (“It frequently is said that the doctrine of
Erie Railroad Company v. Tompkins applies only in diversity of citizenship cases; this statement
simply is wrong. The Erie case and the Supreme Court decisions following it apply in federal
question cases as well.”).
16

the state statute specifies that “compliance with a permit issued pursuant to this article shall be
deemed compliance for purposes of both this article and sections 301, 302, 306, 307 and 403 of the
[CWA].” W. Va. Code § 21-11-6(2). Indeed, the state statute includes additional language that
adds to the ambiguity.

Section 21-11-6(2) prefaces the operative language as follows:

“Notwithstanding any rule or permit condition to the contrary . . . .” Marfork argues that there is
no ambiguity here; the Legislature’s intent is clearly stated in the bill’s preamble, which declares:
AN ACT to amend and reenact §22-11-6 of the Code of West Virginia, 1931, as
amended, relating to making West Virginia’s Water Pollution Control Act
consistent with the federal Water Pollution Control Act, also known as the Clean
Water Act, by clarifying that compliance with the effluent limits contained in a
National Pollution Discharge Elimination System permit is deemed compliant with
West Virginia’s Water Pollution Control Act.
W. Va. Code § 22-11-6 (emphasis added). While a bill’s preamble may provide some insight into
the intention of the Legislature, see Syl. Pt. 7, Slack v. Jacob, 8 W. Va. 612, 613 (1875) (“The
preamble may be consulted in some cases to ascertain the intentions of the Legislature.”), the
preamble of S.B. 615 does nothing to clarify the inconsistency within the text of the statute itself.
First, the text of the statute does not read “compliance with effluent limits;” rather, it says
“compliance with a permit.” Second, the text of the statute’s internal inconsistency remains: in
order to receive the permit shield’s protection, a permittee must comply with a permit,
“notwithstanding any . . . permit condition to the contrary.” The Court concludes that the permit
shield language here is ambiguous as to the scope of the shield’s protection: must a permittee
comply with all the permit conditions or not?
The Court must then apply Chevron’s second step. WVDEP has promulgated, pursuant to
a formal notice-and-comment rulemaking, an interpretive rule regarding the state permit shield.
That rule was adopted by the agency and approved by the Legislature, and became effective July 1,
2013.

XXX W. Va. Reg. 774 (May 10, 2013).
17

This rule contains an amendment to §

47-30-5.1.f. The rule retains the operative language requiring compliance with water quality
standards, but now includes the following:
However, as provided by subdivision 3.4.a. of this rule, except for any toxic
effluent standards and prohibitions imposed under CWA Section 307 for toxic
pollutants injurious to human health, compliance with a permit during its term
constitutes compliance for purposes of enforcement with CWA Sections 301, 302,
306, 307, 318, 403, and 405 and Article 11.
Id. This rule only adds ambiguity and by its terms, has no new effect. It is merely a reference to
a pre-existing rule, § 47-30-3.4.a, which already provided a permit shield protection identical to
the federal shield. The amended rule does not address whether WVDEP interprets the statute as
requiring compliance with effluent limits only, or whether a permit holder is expected to comply
with the rule and permit condition concerning water quality standards, even for pollutants that are
not embodied in a specific effluent limitation. Thus, unlike the EPA adjudication cited in Piney
Run, this agency interpretation provides the Court no guidance as to the proper construction of
S.B. 615, because the interpretation itself is ambiguous.
Although not entitled to Chevron deference, WVDEP has issued statements in official
correspondence that further explain the agency’s views regarding the state permit shield. In these
statements, however, the agency has asserted two contradictory positions regarding the scope of
the permit shield. In response to an EPA inquiry about the effect of S.B. 615, WVDEP informed
EPA that “West Virginia does not consider this ‘new’ law a change to West Virginia’s [NPDES]
program.” Letter from Kristin A. Boggs, Gen. Counsel, WVDEP, to Jon M. Capacasa, Director,
Water Prot. Div., U.S. Envtl. Prot. Agency Region III (Aug. 9, 2012), ECF No. 69-1. The agency
continued that the bill “is meant to clarify that West Virginia NPDES permits are intended to
shield regulated entities from citizen suits to the same extent as NPDES permits issued by EPA.”
Id. That is, the state permit shield is “intended to be co-extensive” with the federal shield. Id.

18

WVDEP reiterated this interpretation in correspondence to Marfork’s counsel: “Senate Bill 615
was simply intended to clarify and confirm DEP’s long-standing understanding, i.e., that West
Virginia’s permit shield is entirely co-extensive with federal law.” Letter from Boggs to M.
Shane Harvey, Esq. (June 14, 2013), ECF No. 89-4. This position ignores the fundamental
question: does § 47-30-5.1.f, as a permit condition, require permit holders not to cause a violation
of water quality standards, even for pollutants that are not embodied in specific effluent
limitations?
The federal permit shield, as explained by the Fourth Circuit in Piney Run, requires
compliance with all conditions of a permit. West Virginia has chosen to include as a condition of
all WV/NPDES permits for mining operations the requirement that they must not cause a violation
of water quality standards. If S.B. 615 is truly co-extensive with the federal permit shield, then
permit holders are not protected from suit if they are violating this condition. In Piney Run, by
contrast, Maryland did not have a rule similar to West Virginia’s here. The permit at issue in that
case did not have a separate condition requiring a permit holder not to cause a violation of water
quality standards for temperature. Therefore, the defendant was not in violation of its permit
where it discharged heat that actually did cause violation of those water quality standards, because
that pollutant was disclosed to the permitting authority and within its reasonable contemplation.
According to WVDEP’s first interpretation, therefore, the state permit shield is entirely
co-extensive with the federal shield, in which case Marfork would not be shielded from violating
its permit by causing a violation of water quality standards.
WVDEP has also stated a contrary interpretation. In March 2012, Plaintiffs’ counsel here
filed a complaint with WVDEP against another coal company on the same grounds as the suit
against Marfork: counsel alleged that the company, Fola Coal Company (“Fola”), had violated its

19

permit by causing a violation of the water quality standard for selenium, and asked that WVDEP
take enforcement action. In response, WVDEP wrote that the state permit shield “has the effect
of preventing the State from taking enforcement action against a permit holder for violation of
water quality standards that are not embodied in effluent limitations that are expressed in a NPDES
permit.” Letter from Thomas L. Clarke, WVDEP, to Derek O. Teaney, Esq. (June 5, 2012), ECF
No. 69-5. However, even though WVDEP disclaimed authority to take enforcement action, it did
assure counsel that “the State will be taking administrative action pursuant to the [West Virginia
CWA] to compel Fola to address selenium at the locations in question.” Id. In its “Order for
Compliance,” WVDEP informed Fola that laboratory samples indicated a violation of the water
quality standard for selenium in Fola’s discharge streams. Id. This action demonstrates that
WVDEP believed it lacked the authority to pursue enforcement action for past violations, but still
viewed Fola’s discharge as wrongful and as a problem needing to be addressed.7 Under this
interpretation, S.B. 615 effectively repeals § 47-30-5.1.f, eliminating the requirement that coal
operations not cause violation of water quality standards for pollutants not listed in the table of
specific effluent limitations.

7

WVDEP, however, has not been entirely consistent in its enforcement actions. In December
2012, six months after the agency claimed it lacked the authority to enforce Fola’s alleged
violations, it entered into a consent decree with another coal mining operation to settle nearly
identical allegations. In that case, WVDEP filed a complaint against Consol of Kentucky in the
Circuit Court of Mingo County, alleging violations of a number of WV/NPDES and WV/SCMRA
permits. In the consent decree, the parties acknowledged that WVDEP could amend its complaint
to include alleged violations of another WV/NPDES permit, based on violations of the water
quality standard for selenium. This WV/NPDES permit, like Marfork’s here, lacked a specific
effluent limitation for selenium but included the water quality standard provision. Therefore, the
agency’s professed ability to pursue enforcement in Consol’s case was apparently based on
violation of the condition prohibiting a permittee from causing violation of water quality
standards. See Consent Decree, Mandirola v. Consol of Kentucky, Inc., No. 11-C-492 (Cir. Ct. of
Mingo Cnty., Dec. 27, 2012), at ¶¶ 3, 12, & Ex. A, ECF No. 90-2.
20

In summary, WVDEP advances two conflicting interpretations of the state permit shield.
Under the first, it is entirely co-extensive with the federal permit shield, affording protection to
permit holders that comply with all the permit conditions. Under the second, the permit shield is
read as eliminating a specific condition of all WV/NPDES permits for coal operations. The Court
does not find this second interpretation reasonable.8 This interpretation would require the Court
to accept the proposition that the West Virginia Legislature intended to repeal § 47-30-5.1.f by
statute, even though the text of the statute makes no reference to that rule or its requirements, and
the rule revisions do not delete or alter the water quality standard rule or permit condition. This
interpretation would eliminate an important condition that is included—by a rule promulgated by a
state agency and approved by the Legislature—to ensure a minimum level of compliance with
water quality standards.
The Court believes that the intent of the Legislature was, as it declared, to clarify that a
permit holder is protected from enforcement action if it complies with the effluent limits of its
permit. “Effluent limits” need not refer only to the table of specific limitations in Section A.2 of
the permit; an “effluent limit” is any restriction placed on a permit holder’s discharge. See 33
U.S.C. § 1365(f)(6) (“‘[E]ffluent standard or limitation . . .’ means a permit or condition thereof . .
. .”). Thus, the state permit shield protects permittees from enforcement to the same extent as the
protections offered by the federal permit shield. Because the scope of the shield is co-extensive,
permittees must comply with all conditions of a permit, including explicit and implicit discharge

8

Plaintiffs argue alternatively that the permit shield would not protect Marfork in this case
because it would constitute a revision to West Virginia’s NPDES program. The Court
additionally observes that had the West Virginia Legislature eliminated the rule requiring
compliance with water quality standards, which would also constitute a revision to West
Virginia’s approved NPDES program. Such revisions generally are not effective unless and until
approved by EPA. 40 C.F.R. § 123.62(b)(4). Based on the Court’s ruling, however, it is
unnecessary to decide this question.
21

authorizations, and all reporting and monitoring requirements.

The Court must therefore

determine whether Marfork is in compliance with the discharge authorizations of its permit. To
accomplish this, the Court must identify the conditions and requirements of the permit.
D.

Terms and Conditions of Permit WV1015044
To determine whether Marfork is in compliance, the Court must analyze the scope of its

WV/NPDES permit. That is, does Marfork’s permit allow the discharge of selenium, either
explicitly, or implicitly9?
1.

The permit is not ambiguous

The starting point, of course, is the text of the permit itself. Section A of Permit
WV1015044 expressly limits the discharge of certain pollutants, like iron, manganese, and
aluminum. ECF No. 55-1. It does not expressly limit selenium. Assuming selenium was
adequately disclosed as a discharge and within the reasonable contemplation of WVDEP, Marfork
would not be in violation of the CWA, if this were the only relevant section of the permit. Section
C of the permit, however, incorporates by reference W. Va. Code R. § 47-30-5.1. That rule
provides, “[t]he discharge or 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 47 C.S.R. 2.”
The Court interprets the terms of an NPDES permit using the principles of contract
interpretation. Piney Run, 268 F.3d at 269 (citing Nw. Envtl. Advocates v. Portland, 56 F.3d 979,
982 (9th Cir. 1995)). Accordingly, the Court must first determine whether the language is
ambiguous. Id. at 269-70. “If the language is plain and capable of legal construction, the
language alone must determine the permit’s meaning.” Id. at 270 (quoting FDIC v. Prince
9

“Explicit” authorization is granted by the precise effluent limitations identified in the permit.
“Implicit” authorization refers to those other discharges that come within the protection of the
permit shield—those that were: (1) adequately disclosed to the permitting authority; and (2) within
the reasonable contemplation of the permitting authority. Piney Run, 268 F.3d at 271.
22

George Corp., 58 F.3d 1041, 1046 (4th Cir. 1995) (quotation marks omitted)). If the language is
ambiguous, however, then the Court must “look to extrinsic evidence to determine the correct
understanding of the permit.” Id. (citing Nw. Envtl. Advocates, 56 F.3d at 983-84). The Court
concludes that the operative language here—“[t]he discharge or 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 47CSR2”— is not ambiguous.
Marfork urges the Court to find ambiguity in the phrase “applicable water quality
standards,” arguing that this language refers to only those discharges WVDEP deems applicable to
a permit holder as evidenced by the specified effluent limitations. The Court disagrees. The
phrase “applicable water standards” in Section 47-30-5.1.f refers to the standards applicable to a
particular water body and its designated use. West Virginia has designated certain uses for the
waters in the state and promulgated standards specific to each designated use. W. Va. Code §
47-2.a App’x E tbl. 1. Water quality standards are thus applicable to a particular use, not to a
particular discharger. See Monongahela Power Co. v. Chief, Office of Water Res., Div. of Envtl.
Prot., 567 S.E.2d 629, 633 (W. Va. 2002) (“A water segment found not to be within its applicable
water quality standard for its designated use is considered to be threatened or impaired.”)
(emphasis added); see also PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700,
715 (1994) (interpreting 33 U.S.C. § 1313(c)(2)(A) to plainly state that water quality standards
contain two components: designated use of water and water quality criteria based upon such use;
“a project that does not comply with a designated use of the water does not comply with the
applicable water quality standards”); Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency,
16 F.3d 1395, 1405 (4th Cir. 1993) (“Thus, where multiple uses are designated for a body of water,

23

there may be multiple criteria applicable to it.”).

Therefore, Defendant’s argument is

unpersuasive.
Because the provision at issue is not ambiguous, it must be given its plain meaning. The
plain language of the provision is clear: “[t]he discharge or 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 47CSR2.” Thus, if a permit holder does cause a violation of the water quality
standards applicable to the body of water into which it discharges pollutants, then the permit
holder has violated the terms of its permit. The permit shield would not protect such a permittee
from liability, because the shield only applies to a permit holder who complies with all the
conditions of its permit.
2.

The permit requires compliance with water quality standards

Even if this provision were ambiguous, the Court disagrees with the interpretation
advanced by Marfork. Examining the extrinsic evidence of this provision’s meaning, in light of
the requirements and purpose of the CWA, persuades the Court that the water quality provision
was intended to require permit holders to not cause a violation of water quality standards—a
requirement that is separate and distinct from specific effluent limitations set forth in the schedule
in Section A.2 of the permit.

The CWA requires that “every permit contain (1) effluent

limitations that reflect the pollution reduction achievable by using technologically practicable
controls and (2) any more stringent pollutant release limitations necessary for the waterway
receiving the pollutant to meet ‘water quality standards.’” Piney Run, 268 F.3d at 265 (quoting
Am. Paper Inst. v. U.S. Envtl. Prot. Agency, 996 F.2d 346, 349 (D.C. Cir. 1993) (citing 33 U.S.C. §
1311(b)(1)(C))). Importantly, the CWA requires authorities to include “any more stringent
limitation, including those necessary to meet water quality standards . . . established pursuant to

24

any State law or regulations.” 33 U.S.C. § 1311(b)(1)(C); see also 33. U.S.C. § 1313(e)(3)(A).
To be approved to operate its own NPDES program, a state program must include the authority to
issue permits which “apply, and insure compliance with, any applicable requirements of sections
1311 [effluent limitations], 1312 [water quality related effluent limitations], 1316 [national
standards of performance], and 1343 [ocean discharge criteria].” 33 U.S.C. § 1342(b)(1)(A).
West Virginia’s Water Pollution Control Act is codified at W. Va. Code § 22-11-1 et seq.
This Act created the regulatory framework through which the State administers its approved
NPDES program. In 1984, West Virginia consolidated the State’s surface mining program and
water pollution control program for coal mines and related entities; that is, it combined the State’s
NPDES and SMCRA programs. Letter from Willis Hartig, Jr., Dir., Dep’t of Natural Res., to A.
James Manchin, Sec. of State (Oct. 18, 1984), ECF No. 93-4. As part of this restructuring, the
NPDES rules were reorganized into separate series for coal and non-coal facilities. The rules
applicable to coal operations include several conditions that the rules for non-coal operations do
not, including the condition that discharges shall not cause violation of water quality standards.
W. Va. Code R. § 47-30-5.1.f. Cf. W. Va. Code R. § 47-10-5 (series applicable to all other
NPDES permits lacks this condition regarding water quality standards).
Marfork argues that this discrepancy is an unintentional oversight and that the Legislature
and WVDEP (and its predecessor agencies) never intended to treat the coal industry any
differently from other industries. The Court reviewed the available legislative history of these
NPDES rules. While the Court could not identify the exact origin of the rules applicable to coal

25

facilities,10 which contain the water quality provision at issue here, there is an explanation for the
discrepancy in the West Virginia Surface Mining Reclamation Rule. That rule includes a
performance standard requiring that mining discharges “shall not violate effluent limitations or
cause a violation of applicable water quality standards.” W. Va. Code R. § 38-2-14.5b. This
performance standard explains why the water quality standard provision is specifically included in
NPDES permits for coal facilities and not those for other industries.
WVDEP and/or its predecessor agency, the Department of Energy, promulgated rule §
47-30-5.1.f requiring compliance with water quality standards for coal mining operations. The
state agency took the affirmative action to promulgate this rule, and the West Virginia Legislature
also acted affirmatively to adopt it. WVDEP has also complied with the rule’s directive that it be
made a permit condition. This rule cannot now be interpreted such that it has no meaning.
Marfork essentially argues that the specific effluent limitations trump the incorporated water
quality standard provision. According to Marfork, if WVDEP reviewed an application which
truthfully disclosed the presence of selenium in its discharge and chose not to establish specific
limitations for selenium, then the permit holder is protected by the permit shield. The problem
with this interpretation is that it effectively nullifies the water quality standard provision.
Instead, the Court believes that this provision is intended as a backstop—a minimum level
of compliance required of permit holders. This reading relies on its unambiguous text and places
the provision in harmony with the CWA. As discussed supra, the CWA requires state programs
to include such limitations as necessary to comply with the state’s water quality standards. Rule §
10

A handwritten editor’s note states that this series, W. Va. Code R. § 47-30, “was previously
Section 10 of [the Department of Natural Resources’] Surface Mine Reclamation Regulations
which were transfered [sic] to the [Department] of Energy as DOE Series 2. This NPDES section
remained with DNR. This is why the section numbers are 10.” W. Va. Code R. § 47-30 (1986).
The Court could not locate this reference, and is therefore unable to determine whether the water
quality standards provision existed prior to the consolidation.
26

47-30-5.1.f is precisely that: a permit limitation to ensure that a permit holder does not cause a
violation of water quality standards.

Under West Virginia’s approved NPDES program,

therefore, WVDEP evaluates a permit application and imposes specific effluent limitations for
those pollutants that it estimates threaten water quality standards. In no event, however, may a
permit holder discharge pollutants that cause a violation of water quality standards. This has the
effect of protecting water quality standards even regarding pollutants for which WVDEP did not
establish specific permit effluent limitations. As a backstop, this provision protects water quality
standards that WVDEP did not anticipate would be threatened based on the discharge levels
reported in a permit application. Accordingly, the Court FINDS that the water quality standard is
an enforceable condition of Marfork’s permit. A violation of this condition would cause Marfork
to fall outside the permit shield’s protection.
The Court’s conclusion is in accord with “the statutory language, legislative history, and
case law” explained by the Ninth Circuit in Northwest Environmental Advocates v. City of
Portland, 56 F.3d 979 (9th Cir. 1995). Northwest Environmental Advocates was a citizen suit
alleging violations of a condition of an Oregon NPDES permit, which provided that “no wastes
shall be discharged and no activities shall be conducted which will violate Water Quality
Standards.” 56 F.3d at 985. The Ninth Circuit rejected the defendant’s argument that Congress
intended to foreclose citizen suit enforcement of water quality standards that were not translated
into specific effluent limitations. Id. at 986. The court concluded that the legislative history
reflects “Congress’[s] intention to grant broad authority for citizen enforcement,” id. at 987, and
“[t]he fact that Congress created a new, simpler enforcement method based on effluent limitations
does not mean that Congress intended to foreclose citizen suit enforcement of water quality
standards,” id. at 986. This Court agrees and finds that like Oregon, West Virginia intended to

27

require permittees not to cause violation of water quality standards, and furthermore, citizen suits
may be used to enforce this condition.
3.

The permit shield defense is unavailable to Marfork

With the requirements of Marfork’s permit established, the Court concludes that the permit
shield defense is not available to Marfork. As discussed supra, the permit shield protects those
who comply with all conditions of a permit. Marfork’s permit includes the condition that its
discharges not cause a violation of the water quality standard for selenium. The permit shield
therefore explicitly authorizes the discharge of selenium only to the extent that it does not cause a
violation of water quality standards.
The Court rejects Marfork’s arguments that its discharges are protected by the permit
shield. Marfork relies on the results reached in Piney Run and Atlantic States Legal Foundation v.
Eastman Kodak Co., 12 F.3d 353 (2d Cir. 1993), where circuit courts found that discharges were
protected by the federal permit shield. In each of those citizen suits, the plaintiffs claimed
violations of statutory and regulatory provisions purporting to make illegal the discharge of any
pollutant not expressly allowed under the permit. Piney Run, 268 F.3d at 264 (“The [district]
court . . . concluded that the [defendant] was liable under the CWA because the discharge of heat
was not expressly allowed by the permit.”); Atlantic States, 12 F.3d at 357 (“[Plaintiff] argues first
that the plain language of Section 301 of the CWA . . . prohibits the discharge of any pollutants not
expressly permitted.”). Both courts concluded that the pollutants at issue, though not limited by
any permit condition, were disclosed and contemplated within the permitting process, thus
implicitly within the permit. Here, there is a regulation and a permit condition which expressly
limit the amount of pollutants within the discharge.

28

Piney Run and Atlantic States both rest on a simple construction of the CWA’s NPDES
permitting process—that every discharge will likely include many pollutants, but only those which
jeopardize water quality standards must be specifically regulated by the permit. See Piney Run,
268 F.3d at 265-66 (“Before issuing a permit the permitting authority must . . . incorporate
discharge limitations necessary to satisfy the state water quality standard.”) (citations and
quotations omitted); Atlantic States, 12 F.3d at 358 (describing the “step-by-step process” of
developing water quality-based limitations, explaining that such limits “are established where the
permitting authority reasonably anticipates the discharge of pollutants by the permittee at levels
that have the reasonable potential to cause or contribute to an excursion above any state water
quality criterion”). Each court refused to read the NPDES statutory and regulatory provisions as
literally requiring every pollutant in any amount within a discharge to be specifically approved,
which would be contrary to the intended scope of a permit. Neither case, however, involved a
permit condition and regulation expressly imposing limits on pollutants which cause violations of
water quality standards, a policy consistent with the NPDES scheme.
Moreover, the Court would reach the same conclusion even if Marfork’s permit did not
include a condition imposing water quality standard limitations. Marfork would have the Court
apply the final step in the Piney Run analysis to the pollutant at issue here, but appears to contend
that mere disclosure of the pollutant during the application process is enough to earn implicit
discharge authorization. It is not; the Fourth Circuit set forth two requirements: (1) was selenium
adequately disclosed to the agency during the permitting process; and (2) were the discharges of
excessive selenium within the reasonable contemplation of the approved permit? See Piney Run,
268 F.3d at 271. Under WVDEP’s 2007 Selenium Implementation Guidance, SMCRA and
NPDES permits for activities determined “to have the potential to cause or contribute to selenium

29

violations” must provide additional information to the agency, and, if “determined to have
reasonable potential to violate selenium [water quality conditions],” the applicant’s permit should
contain operating requirements for the control of selenium with monitoring and selenium effluent
limitations. Selenium Implementation Guidance, WVDEP Permit Handbook Section 32 (Nov.
13, 2007), ECF No. 51-2. Marfork’s permit application indicated a water sample from Outfall
001 with a low amount of selenium. Application for WV/NPDES Permit, Mod 2 at 9 tbl. 2-IV-C,
ECF No. 51-1 (indicating a maximum daily concentration of selenium of 2.09µg/L). This amount
was apparently insufficient to indicate a potential to cause or contribute to a selenium water quality
condition violation, leading to the permit here with no monitoring or effluent limit for selenium.
Now that sampling has revealed persistently high levels of selenium above the water
quality standard during the life of this permit, the Court finds that the amount of selenium actually
discharged at Outfall 001 was not within the reasonable contemplation of the agency at the time of
the permit, and consequently not within the permit shield. See Piney Run, 268 F.3d at 268.
E.

Requirements for a Citizen Suit under the CWA and the SMCRA
Having determined the scope of the permit shields and the requirements of Marfork’s

permit, the Court now turns to the final issue: whether Plaintiffs have demonstrated that they are
entitled to relief.
1.

Plaintiffs provided sixty days’ notice

Under the CWA and the SMCRA, no citizen suit may be commenced prior to the provision
of sixty days’ notice to the alleged violator, the Administrator of the EPA or Secretary of the
Department of Interior, and the state in which the alleged violation occurred. 33 U.S.C. §
1365(b)(1)(A); 30 U.S.C. § 1270(b)(1)(A); see also Gaston Copper II, 629 F.3d at 391. The
notice

30

shall include sufficient information to permit the recipient to identify the specific
standard, limitation, or order alleged to have been violated, the activity alleged to
constitute a violation, the person or persons responsible for the alleged violation,
the location of the alleged violation, the date or dates of such violation, and the full
name, address, and telephone number of the person giving notice.
40 C.F.R. § 135.3(a); see also 30 C.F.R. § 700.13(e). Providing such notice “is a mandatory
condition precedent to filing suit under [the CWA].” Gaston Copper II, 629 F.3d at 399 (citing
Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31 (1989)). “Without adequate notice, the Court does
not have subject matter jurisdiction to hear the case.” Assateague Coastkeeper v. Alan & Kristin
Hudson Farm, 727 F. Supp. 2d 433, 437 (D. Md. 2010) (citation omitted). The purpose of the
notice is to “allow a potential defendant to identify its own violations and bring itself into
compliance voluntarily,” Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York,
273 F.3d 481, 488 (2d Cir. 2001) (citations omitted), and to “allow[ ] Government agencies the
opportunity to take responsibility to enforce the environmental regulations,” Assateague
Coastkeeper, 727 F. Supp. 2d at 437 (citing Hallstrom, 493 U.S. at 29). Accordingly,
as long as a notice letter is reasonably specific as to the nature and time of the
alleged violations, the plaintiff has fulfilled the notice requirement. The letter
does not need to describe every detail of every violation; it need only provide
enough information that the defendant can identify and correct the problem.
San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1155 (9th Cir. 2002). “The
sufficiency of the plaintiffs’ notice letter must be assessed based on the facts that existed” at the
time notice was provided. Gaston Copper II, 629 F.3d at 401.
Plaintiffs have plainly satisfied their statutory obligation to provide sixty days’ notice.
Plaintiffs sent notice to the required parties on March 9, 2012. Ex. 10, ECF No. 53-10. Marfork
admits that the notice requirements of the CWA and the SMCRA are satisfied by the March 9,
2012 letter. Def.’s Resp. to Pls.’ Request for Admissions ¶ 1, ECF No. 55-14.

31

2.

Plaintiffs have sufficiently alleged an ongoing violation

A citizen suit under the CWA may be commenced “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.”

33 U.S.C. §

1365(a)(1). Likewise, under the SMCRA, a person may commence a citizen suit “against any
other person who is alleged to be in violation of any rule, regulation, order or permit issued
pursuant to [the SMCRA].” 30 U.S.C. § 1270(a)(1). This is a jurisdictional requirement. The
United States Supreme Court expounded on the “alleged to be in violation” requirement, finding
that this requirement is satisfied and a federal district court has jurisdiction “when the
citizen-plaintiffs make a good-faith allegation of continuous or intermittent violation.” Gwaltney
of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64 (1987).11 The Supreme Court
specifically rejected the proposition that “citizen-plaintiffs must prove their allegations of ongoing
noncompliance before jurisdiction attaches under § 505.” Id. at 64. Good-faith allegations, not
definitive proof, suffice for jurisdictional purposes.12

Id. at 65.

Plaintiffs claim that three sets of data satisfy this requirement: (1) pre-complaint discharge
monitoring reports (“DMRs”); (2) October 2012 measurements taken during the course of
discovery; and (3) December 2012 measurements taken during discovery. First, Plaintiffs claim
11

The standard for demonstrating proof of a violation is a higher burden than the standard
required to demonstrate citizen suit standing under the CWA. To ultimately succeed in a citizen
suit, the citizen plaintiff must prove an ongoing violation, which may be accomplished “either: (1)
by proving violations that continue on or after the date the complaint is filed, or (2) by adducing
evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in
intermittent or sporadic violations.” Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield,
Ltd., 844 F.2d 170, 171–72 (4th Cir.1988) (“Gwaltney II ”).
12

The Supreme Court espoused the view that “Congress’s use of the phrase ‘alleged to be in
violation’ [in section 505] reflects a conscious sensitivity to the practical difficulties of detecting
and proving chronic episodic violations of environmental standards.” Gwaltney, 484 U.S. at 65.
32

that Marfork’s DMRs, submitted in compliance with the Beetree Permit, prove pre-complaint
violations. The samples for this data came from a monitoring point in Brushy Fork. According
to Plaintiffs, these DMRs show that the waters of Brushy Fork exceeded the water quality
standards for selenium at least 30 times between December 2008 and May 2012.13 ECF No. 55-4.
Plaintiffs state that Marfork’s impoundment caused these violations because there is no other
source of selenium discharging into Brushy Fork.
Second, Plaintiffs tested samples over four consecutive days in October 2012, during a
Rule 34 inspection.14 Plaintiffs took four samples (one on each consecutive day) directly from the
spillway of Outfall 001, and four samples from Little Marsh Fork. Due to confusion and
misinformation about the location of the streams, no samples were taken from Brushy Fork. The
samples taken directly from the Outfall 001 discharge have a four-day average that exceeds the
chronic selenium standard. The average of the samples from Little Marsh Fork, however, does
not violate the standard.
Finally, both Plaintiffs and Defendant took samples on six consecutive days in December
2012. The samples were taken from three locations: at the Outfall 001 spillway, Brushy Fork, and
Little Marsh Fork. Plaintiffs’ data indicate a four-day average that violates the selenium water
quality standard both at Outfall 001 and Brushy Fork. Little Marsh Fork did not exceed the water
quality standard. Marfork’s data also demonstrates a violation of the selenium standard from the
Outfall 001 spillway. Its data for Brushy Fork, however, is in disagreement with Plaintiffs’ data

13

According to Plaintiffs, there were 29 instances of violations of the chronic selenium standard
and a single violation of the acute selenium standard.

14

Federal Rule of Civil Procedure 34 permits a party to request entry onto “designated land or
other property possessed or controlled by the responding party, so that the requesting party may
inspect, measure, . . . test, or sample the property or any designated object or operation on it.”
Fed. R. Civ. P. 34(a)(2).
33

and indicates no violation. According to Plaintiffs, this result is best explained by a sampling
error. Plaintiffs claim that Marfork’s contractor erroneously switched two of the samples from
the December 12, 2012 sampling event, recording the Little Marsh Fork result as the Brushy Fork
result, and vice versa. If this error were corrected, Marfork’s data would also show a violation of
the selenium standard in Brushy Fork.
The Court is satisfied that Plaintiffs have made good-faith allegations of continuous or
intermittent violations sufficient to confer jurisdiction in this case. For the reasons discussed
supra, the permit shield defense is unavailable to Marfork, based on Plaintiffs’ allegations that it
has violated a condition of its permit. In support of their motion for summary judgment, Plaintiffs
have cited both pre- and post-complaint measurements that provide a basis for the allegation that
Marfork is causing a violation of the selenium water quality standard. The Court therefore finds
that Plaintiffs have satisfied CWA’s jurisdictional requirement.
3.

Plaintiffs have not yet proven a CWA violation

While Plaintiffs’ evidence is sufficient to satisfy the jurisdictional requirement, it is not
sufficient proof of a continuing violation to prevail on summary judgment. A number of material
factual issues remain in dispute. First, the parties disagree as to whether the DMR data is
sufficient to prove a pre-complaint violation of the selenium water quality standard. Defendant
argues that the data is insufficient because the standard is defined as a “four-day average
concentration,” and Plaintiffs lack pre-complaint data from four consecutive days. Plaintiffs
claim that measurements from four consecutive days are not required and that a violation can be

34

proven using other calculations. 15 In the absence of additional evidence, from an expert or
otherwise, Plaintiffs have not conclusively demonstrated that the available data proves a
pre-complaint violation of the selenium water quality standard. Second, the parties dispute
whether the October 2012 and December 2012 datasets prove a post-complaint violation.
Marfork’s data from December 2012 disagrees with Plaintiffs’ data. Additionally, Marfork
argues that Plaintiffs’ reliance on the measurements of the spillway discharge of Outfall 001 is
invalid because it is not an accurate measure of the selenium content in the stream itself.
Because of these disputes of material fact, the Court DENIES both parties’ motions for
summary judgment. The Court will issue a separate order regarding further proceedings in this
case.
III.

CONCLUSION

For the reasons discussed above, the Court FINDS that the Court has jurisdiction over this
case. Plaintiff Coal River Mountain Watch has sufficiently demonstrated that it has standing and
has made good-faith allegations of continuing violations of the Clean Water Act. Furthermore,
the Court FINDS that Marfork’s WV/NPDES permit includes the condition that it not cause a
violation of water quality standards. The permit shields provided by federal and state law do not
provide Marfork protection from enforcement action if this permit condition is violated.
The Court GRANTS in part Marfork’s motion against OVEC, WVHC, and Sierra Club
due to those organizations’ lack of standing. Because the Court concludes that there remains a
genuine dispute of material fact as to whether Marfork violated its permit condition, the Court

15

Plaintiffs alternatively argue that even if measurements from four consecutive days were
required, it could satisfy that by an October 2010 maximum measured selenium concentration of
75.52 µg/L in Brushy Fork. See ECF No. 55-3 at 3. The Court rejects this argument and agrees
with Marfork that this value is plainly due to a recording error. See Cook Aff., ECF No. 69-6.
This value, therefore, is not credible evidence.
35

otherwise DENIES the parties’ motions.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel
of record and any unrepresented parties.

ENTER:

36

August 22, 2013