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

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

September 24, 2019


          Peter M. Morgan, Denver, Colorado, Evan D. Johns, Appalachian Mountain Advocates, Charlottesville, Virginia, and J. Michael Becher, Appalachian Mountain Advocates, Lewisburg, West Virginia, for Southern Appalachian Mountain Stewards, Appalachian Voices, and Sierra Club.

          Brooks M. Smith and Dabney J. Carr, IV, Troutman Sanders LLP, Richmond, Virginia, for Red River Coal Company, Inc.



         In this environmental case, Southern Appalachian Mountain Stewards, Appalachian Voices, and The Sierra Club (collectively, “SAMS”) have sued Red River Coal Company, Inc. (“Red River”) for allegedly violating the Clean Water Act (“CWA”), the Surface Mining Control and Reclamation Act (“SMCRA”), and, in the alternative, the Resource Conservation and Recovery Act (“RCRA”), by discharging pollutants without permit authority. Red River has filed a related declaratory judgment action, No. 2:17CV00021, seeking a declaration that it is not violating the CWA and SMCRA, but the motions at bar have been filed solely in this case.

         After conducting discovery, Red River has moved for summary judgment on SAMS’s claims for relief. SAMS has moved for partial summary judgment on the issue of its standing. The motions have been fully briefed and orally argued and are ripe for decision. For the reasons that follow, I will grant SAMS’s Motion for Partial Summary Judgment and will grant Red River’s Motion for Summary Judgment.


         The relevant facts are largely uncontested. The following facts taken from the summary judgment record are either undisputed or, where disputed, are presented in the light most favorable to the nonmoving party.

         Red River operates a surface coal mine in this judicial district called the North Fox Gap Surface Mine (“Mine”). The Mine discharges pollutants into the South Fork Pound River, Rat Creek, Stillhouse Branch, and other unnamed tributaries. Some of the discharges are governed by effluent limits in the Mine’s combined SMCRA and National Pollution Discharge Elimination System (“NPDES”) permit. The discharges include substances that contribute to total dissolved solids (“TDS”) and conductivity. Virginia has classified the South Fork of the Pound River as biologically impaired due to its high level of TDS.

         The area in which the Mine is located was mined extensively before SMCRA was enacted. That historic surface mining polluted the South Fork Pound River watershed by exposing toxic overburden material, which weathered and leached, causing acidic surface runoff and seepage. Discharges from pre-SMCRA underground mining have also polluted the watershed.

         The federal Environmental Protection Agency (“EPA”) delegated to Virginia’s Department of Mines, Minerals, and Energy’s Division of Mined Land Reclamation (“DMLR”) the authority to issue NPDES permits under the CWA. DMLR also has the authority to issue SMCRA permits. In 1992, DMLR issued combined CWA and SMCRA permit numbered 1101401/0081401 (“Permit”) for the Mine to conduct coal surface mining operations and to discharge pollutants under the CWA. The coal mining operation included remining of previously mined areas. The Permit requires Red River to reclaim the mining area according to current standards. DMLR encourages remining because it is a way to reclaim land that was mined before SMCRA’s enactment that would not otherwise be reclaimed, aiding restoration of water quality.

         A hollow or valley fill is made up of excess spoil or overburden material removed during mining. The fill is simply a place to put the excess material. Generally, channels are created to route water around the fill. Any water that gets into the fill drains into an underdrain at the bottom of the fill, which is designed to convey water (both percolating groundwater and water running through the fill). Discharges from nearby underground mines, also known as deep mines, may also flow into an underdrain. If there is a sedimentation pond in place, the water from the channels around the fill and the water collected in the underdrain are both conveyed into the sedimentation pond before being discharged into a water body. If there is no sedimentation pond, the water from the channels and the water from the underdrain may discharge directly into a body of water such as a creek or stream.

         Red River deposited mine spoil into eight hollow fills, each of which has an underdrain. Until June 2014, Fill 1 and Underdrain 1 discharged into Pond 1 and through Outfall 001 into a tributary of the South Fork Pound River. Fill 2 and Underdrain 2, as well as Fill 3 and Underdrain 3, discharged into Pond 2 and through Outfall 002 into a different tributary of the South Fork Pound River. Fill 4 and Underdrain 4, as well as Fill 5 and Underdrain 5, discharged into Pond 5 and through Outfall 003 into another tributary of the South Fork Pound River. Fill 6 and Underdrain 6 discharged into Pond 9 and through Outfall 006 into a tributary of Rat Creek, which flows into the South Fork Pound River downstream from the other discharges.

         On April 29, 2014, DMLR authorized Red River to remove Ponds 3 and 4. On June 11, 2014, DMLR authorized Red River to remove Ponds 1, 2, 5, 6, and 9. Underdrains 1, 2, 3, 4, 5, and 6 now all discharge directly into tributaries or streams without passing through any sedimentation pond or other treatment system.

         On February 26, 2015, in a document titled Monitoring Point Detail Supplement, DMLR authorized the deletion of Outfall 003 from Red River’s NPDES permit. In the same document, DMLR authorized the relocation of NPDES monitoring locations for Outfalls 001, 002, and 006. The monitoring points were previously below the fills but were moved to new locations up slope of the fills at mine bench Ponds 1B, 3B, and 7B. Red River has not reported any discharges from these mine bench ponds.

         Underdrains 1, 2, 3, 4, 5, and 6 continue to produce discharges high in TDS and with high conductivity, contributing to elevated levels in the streams into which the underdrains discharge. These elevated levels have harmed aquatic life in the streams, which the Virginia Department of Environmental Quality has designated as impaired based on macroinvertebrate bioassessments.

         For purposes of its motion, Red River concedes that the underdrains are point sources under the CWA.[1] At this time, the underdrains are not listed as outfalls or point sources in the Permit. The Permit continues to require underdrain monitoring. The underdrains are discharging calcium, magnesium, sulfate, and bicarbonate.

         The Permit states that Red River “is hereby authorized to conduct coal surface mining and reclamation operations in Virginia and to discharge from a facility into receiving waters, aforementioned, in accordance with the requirements, conditions and limitations set forth in this permit, and all plans approved for this permit.” Mem. Supp. Mot. Summ. J. Ex. 3 at 2, ECF No. 43-3. The Permit then goes on to list specific monitoring points and effluent limitations, along with requirements for sampling. The Permit does not expressly incorporate Virginia water quality standards or include a condition requiring compliance with state regulations.

         Over the years following issuance of the permit, Red River submitted several applications for renewal of the Permit. As part of its renewal applications, Red River submitted monitoring data from the underdrains. The 2016 renewal of the Permit, which is currently in effect, states that Red River

is authorized to discharge from the facility listed below in compliance with the provisions of the Clean Water Act as amended and pursuant to the State Water Control Law and regulations adopted pursuant thereto and in accordance with the effluent limitations, monitoring requirements, and other conditions set forth in Sections A, B, C, and D of this permit and the plans and requirements found in joint CSMO/NPDES permit number 1101401/0081401 and any and all subsequent approved permitting actions.

Id. Ex. 7 at 2, ECF No. 43-7. The “facility listed below” is “North Fox Gap Surface Mine.” Id. The “receiving waters” listed are “Rat Creek and South Fork Pound River.” Id. Ex. 3 at 2, ECF No. 43-3.[2]

         The Permit requires Red River to monitor suspended solids, iron, manganese, TDS, conductivity, and acidity, among other things, at specified sites. The 2016 renewal of the Permit states, NPDES Outfall Description:

NPDES outfalls associated with this permit result from the control of surface water runoff resulting from precipitation and/or groundwater discharges from coal mining activities associated with mining. Treatment facilities may include sedimentation structures, chemical treatment such as the addition of neutralizing agents or flocculants, or no treatment (in the case of direct discharge of underground mine drainage when treatment is not required to meet applicable effluent limitations). The following details describe the treatment facility or source associated with each approved outfall. Specific information regarding each outfall and facility is found in Section V and Section XII of the CSMO/NPDES permit.

Id. Ex. 7 at 3, ECF No. 43-7. The Permit then goes on to list specific effluent limitations at delineated outfalls. The Permit requires monitoring of TDS, but sets no numeric TDS limit, and Virginia has not adopted a numeric water quality standard for TDS.

         In its initial permit application for the Mine, submitted in 1991, Red River provided sampling data from 1988 through 1991, which included testing for TDS and conductivity. Red River disclosed that “[a]s areas are disturbed during mining, suspended solids concentrations in runoff will increase.” Id. Ex. 9 at 40, ECF No.43-9. Red River stated,

[s]ediment control structures will remain in place until the disturbed area controlled has been stabilized. After vegetation is well established and ponds have been removed, suspended solids concentrations will be approximately the same as prior to mining in non-remining areas. Suspended solids reaching receiving streams should be reduced during and after mining in the remine area.

Id. Red River represented that it would construct hollow fills and monitor discharges at the underdrains of the hollow fills, and the Permit required monitoring for TDS at the underdrains. Red River indicated in its permit application that preexisting discharges from the hollow fills and underdrains were of poor quality. However, it predicted that there would be a significant improvement in water quality once remining and reclamation had been completed.

         A DMLR procedure document details the process for removal of sedimentation ponds following reclamation. According to the procedure, pond removal cannot begin until data shows there have been no problematic discharges or effluent limit exceedances for at least the past six months. The removal of the pond triggers a plan modification and eliminates the NPDES monitoring point from the Permit.

         DMLR’s organizational designee, Rodney Baker, testified in a deposition that DMLR would have considered the monitoring data submitted by Red River when deciding on the effluent limitations and other conditions of the permit. Baker testified that sedimentation ponds are intended to control runoff during mining operations and that once reclamation is complete, the ponds are no longer necessary and are expected to be removed. However, DMLR does not require removal of the ponds at a particular time or pressure a coal company to remove them promptly until after approval has been sought and granted. The ponds must be removed in order for the coal company’s reclamation bond to be released.

         According to Baker, under the Permit, Red River is “authorized to discharge from the facility, but they are required to specify those locations where the monitoring will be conducted and where the effluent limitations apply.” Id. Ex. 2 at 57, ECF No. 43-2. He went on to clarify that “the permit does apply to the facility” but “they have to identify each location that has a discharge where monitoring effluent limitations are applicable and are required.” Id. at 58. Baker testified that as of the date of his deposition, Red River had complied with the Permit.

         In October 2015, DMLR issued a draft renewal of the Permit that omitted the underdrains as outfalls. By letters dated November 25, 2015, and January 28, 2016, EPA objected to the draft renewal of the Permit because it considerd the underdrains to be point sources that were discharging pollutants without permit authorization, in violation of the CWA.[3] The EPA wrote that its objection was “based on the fact that the permit does not contain sufficient conditions to ensure compliance with water quality standards and does not contain effluent limitations consistent with the assumptions and requirements of wasteload allocations established through the South Fork Pound River Total Maximum Daily Load (TMDL).” SAMS’s Resp. Opp’n Mot. Summ. J. Ex. 10 at 2, ECF No. 49-10. “[T]here remain discharges from the original outfall locations to the South Fork Pound River watershed and those discharges continue to contribute TDS to the watershed.” Id. at 3. The EPA emphasized that post-bond-release discharges were still subject to regulation under the CWA and must be permitted.[4] The EPA instructed DMLR that the “ongoing discharge from the original outfall locations needs a permit, regardless of whether the discharges are deemed to be associated with active mining activity.” Id. The EPA wrote that “[p]ursuant to Section 402(d) of the CWA and EPAs regulations at 40 CFR §§ 122.4(c) and 123.44, a final NPDES permit shall not be issued unless and until the EPA’s objections have been resolved.” Id. at 4.

         On March 15, 2016, Red River wrote to DMLR regarding the EPA’s objections, stating that the objections were ...

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