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Southern Appalachian Mountain Stewards v. Zinke

United States District Court, W.D. Virginia, Big Stone Gap Division

September 20, 2017

SOUTHERN APPALACHIAN MOUNTAIN STEWARDS, ET AL., Plaintiffs,
v.
RYAN ZINKE, SECRETARY OF THE INTERIOR, Defendant.

          Walton D. Morris, Jr., Morris Law Office, P.C., Charlottesville, Virginia, and Isak Howell, Isak Howell Law Office, Roanoke, Virginia, for Plaintiffs

          John Austin, Field Solicitor, Department of the Interior, Knoxville, Tennessee, and Sarah Bugbee Winn, Assistant United States Attorney, Roanoke, Virginia, for Defendant.

          OPINION AND ORDER

          James P. Jones United States District Judge

         In this case, I must decide whether a decision by the Secretary of the Interior denying a federal inspection of selenium levels at a surface coal mine's outfall was arbitrary and capricious. With cross motions for summary judgment before me, I find that it was, and therefore rule in the plaintiffs' favor.

         I.

         The plaintiffs, two environmental organizations, filed this action pursuant to the judicial review provision of the Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. § 1276(a)(2), alleging that they were aggrieved by an administrative decision of the Secretary of the Interior (“Secretary”). The defendant answered and filed the administrative appeal record.[1] Cross motions for summary judgment based on that record have been filed and the parties have briefed and orally argued the issues. The case is thus ripe for decision.

         A.

         The Secretary, through the Office of Surface Mining Reclamation and Enforcement (“OSMRE”), administers SMCRA. See 30 U.S.C. 1211. Virginia is a primacy state, meaning it has its own state-run, federally approved program for surface mining reclamation operations, but OSMRE retains some enforcement powers. See 30 U.S.C. § 1271. Federally approved state programs must “incorporate sanctions no less stringent than” those set forth in SMCRA and “shall contain the same or similar procedural requirements relating thereto.” 30 U.S.C. § 1271(d).

         When the Secretary has reason to believe someone is violating a SMCRA requirement or permit condition, the Secretary must notify the state regulatory agency by issuing what is known as a ten-day notice. 30 U.S.C. § 1271(a)(1). If the state agency does not, within ten days, “take appropriate action to cause said violation to be corrected or to show good cause for such failure and transmit notification of its action to the Secretary, the Secretary shall immediately order Federal inspection of the surface coal mining operation at which the alleged violation is occurring.” Id. If a state fails to enforce its federally approved program, the Secretary may provide for federal enforcement. 30 U.S.C. § 1254(b).

         A Virginia regulation promulgated under SMCRA's authority generally requires that “[d]ischarges of water from areas disturbed by surface mining activities shall be made in compliance with all applicable State and Federal water quality laws, standards and regulations and with the effluent limitations for coal mining promulgated by the U.S. Environmental Protection Agency set forth in 40 CFR 434.” 4 V.A.C. 25-130-816.42. The Federal Water Pollution Control Act, better known as the Clean Water Act (“CWA”), prohibits the discharge of pollutants without a permit. 33 U.S.C. § 1311(a). Thus, every Virginia surface mining permit incorporates the requirement that any discharges must comply with both state standards and the CWA.

         The regulation establishing Virginia's surface water standards states that “[i]nstream water quality conditions shall not be acutely or chronically toxic.” 9 V.A.C. 25-260-140. The regulation defines “acute toxicity” as “an adverse effect that usually occurs shortly after exposure to a pollutant.” Id. Death or immobilization of an organism “is the usual measure of acute toxicity.” Id. “Chronic toxicity” is defined as “an adverse effect that is irreversible or progressive or occurs because the rate of injury is greater than the rate of repair during prolonged exposure to a pollutant.” Id. For selenium, [2] Virginia has set a freshwater aquatic life chronic toxicity standard of 5 μg/l (micrograms per liter, that is, 5 millionths of a gram per liter). Id. Chronic toxicity is measured by a “[f]our-day average concentration, ” which is “not to be exceeded more than once every 3 years on the average.” Id. at n.2.

         A federal regulation requires a representative of the Secretary to “immediately conduct a Federal inspection” whenever he or she

has reason to believe on the basis of information available to him or her . . . that there exists a violation of [SMCRA], this chapter, the applicable program, or any condition of a permit or an exploration approval, or that there exists any condition, practice, or violation which creates an imminent danger to the health or safety of the public or is causing or could reasonably be expected to cause a significant, imminent environmental harm to land, air or water resources and -
The authorized representative has notified the state regulatory authority of the possible violation and more than ten days have passed since notification and the State regulatory authority has failed to take appropriate action to cause the violation to be corrected or to show good cause for such failure and to inform the authorized representative of its response.

30 C.F.R. § 842.11(b)(1). “Appropriate action includes enforcement or other action authorized under the State program to cause the violation to be corrected.” Id. Good cause can be established where “[u]nder the State program, the possible violation does not exist.” Id. “An authorized representative shall have reason to believe that a violation, condition or practice exists if the facts alleged by the informant would, if true, constitute a condition, practice or violation . . . .” 30 C.F.R. § 842.11(b)(2); see also 4 V.A.C. 25-130-842.11. “When the Federal inspection results from information provided to the Secretary by any person, the Secretary shall notify such person when the Federal inspection is proposed to be carried out and such person shall be allowed to accompany the inspector during the inspection[.]” 30 U.S.C. § 1252(e)(2). The approved Virginia program includes enforcement mechanisms essentially parallel to the federal enforcement mechanisms. See Va. Code Ann. §§ 45.1-245, 45.1-246.1. Like the federal statute, a Virginia statute states, “Whenever ...


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