Ohio Valley Environmental Coalition v. Fola Coal Company, LLC ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1024
OHIO VALLEY ENVIRONMENTAL COALITION; WEST VIRGINIA
HIGHLANDS CONSERVANCY; and SIERRA CLUB,
Plaintiffs - Appellees,
v.
FOLA COAL COMPANY, LLC,
Defendant - Appellant.
------------------------------------
AMERICAN FOREST AND PAPER ASSOCIATION; AMERICAN PETROLEUM
INSTITUTE; NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES;
NATIONAL ASSOCIATION OF HOME BUILDERS; NATIONAL ASSOCIATION
OF MANUFACTURERS; NATIONAL MINING ASSOCIATION; UTILITY WATER
ACT GROUP,
Amici Supporting Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Robert C. Chambers,
Chief District Judge. (2:13-cv-05006)
Argued: October 27, 2016 Decided: January 4, 2017
Before MOTZ and DIAZ, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Diaz and Judge Lee joined.
ARGUED: Michael Shane Harvey, JACKSON KELLY PLLC, Charleston,
West Virginia, for Appellant. Joseph Mark Lovett, APPALACHIAN
MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Appellees.
Thomas M. Johnson, Jr., OFFICE OF THE ATTORNEY GENERAL OF WEST
VIRGINIA, Charleston, West Virginia, for Amici The State of West
Virginia and West Virginia Department of Environmental
Protection. ON BRIEF: Robert G. McLusky, Jennifer L. Hughes,
JACKSON KELLY PLLC, Charleston, West Virginia, for Appellant.
J. Michael Becher, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg,
West Virginia; James M. Hecker, PUBLIC JUSTICE, Washington,
D.C., for Appellees. Karen C. Bennett, Samuel L. Brown, Brian
R. Levey, Kristy Bulleit, HUNTON & WILLIAMS LLP, Washington,
D.C.; Jan A. Poling, AMERICAN FOREST & PAPER ASSOCIATION,
Washington, D.C.; Amanda Waters, Erica Spitzig, NATIONAL
ASSOCIATION OF CLEAN WATER AGENCIES, Washington, D.C.; Linda E.
Kelly, Quentin Riegel, NATIONAL ASSOCIATION OF MANUFACTURERS,
Washington, D.C.; Peter Tolsdorf, AMERICAN PETROLEUM INSTITUTE,
Washington, D.C.; Tom Ward, NATIONAL ASSOCIATION OF HOME
BUILDERS, Washington, D.C., for Amici American Forest & Paper
Association, American Petroleum Institute, National Association
of Clean Water Agencies, National Association of Home Builders,
National Association of Manufacturers, National Mining
Association and Utility Water Act Group. John C. Cruden,
Assistant Attorney General, David S. Gualtieri, Jennifer
Neumann, Environment and Natural Resources Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
United States Environmental Protection Agency. Patrick
Morrisey, Attorney General, Elbert Lin, Solicitor General, Erica
N. Peterson, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF WEST VIRGINIA, Charleston, West Virginia; Kristin
Boggs, General Counsel, Thomas L. Clarke, Senior Policy Advisor
and Counsel, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION, Charleston, West Virginia, for Amici The State of
West Virginia and West Virginia Department of Environmental
Protection.
2
DIANA GRIBBON MOTZ, Circuit Judge:
Several environmental groups brought this action against a
coal company, alleging that the company had violated the Clean
Water Act and seeking appropriate injunctive relief. After a
bench trial, the district court found that the company had
indeed violated the Act and ordered it to take corrective
measures. The company appeals, principally asserting that its
National Pollution Discharge Elimination System (“NPDES”) permit
shields it from liability. Because the company did not comply
with the conditions of its permit, the permit does not shield it
from liability under the Clean Water Act, and the district court
properly ordered appropriate remedial measures. Accordingly, we
affirm the judgment of the district court.
I.
A.
The Clean Water Act forbids all discharges of pollutants
into waters of the United States, unless the discharger holds a
permit. 33 U.S.C. §§ 1311(a), 1342, 1362 (2012). The Act
shields NPDES permit holders from liability if their discharges
comply with their permits. 33 U.S.C. § 1342(k). A typical
NPDES permit lists numerical limitations on specific types of
effluents and includes other conditions required for compliance
with state and federal law. The Act requires that effluent
3
limits reflect applicable water quality standards. See 33
U.S.C. § 1312(a). These water quality standards may be
numerical or narrative, 40 C.F.R. § 131.3(b) (2016), and may,
but need not be, contained in a permit.
Under the Act, if a state receives approval from the
Environmental Protection Agency (“EPA”), it can administer its
own NPDES permitting program. See 33 U.S.C. § 1342(b). EPA
reviews and must approve any substantive changes to a state’s
permit program. See id. In 1981, West Virginia received EPA
approval to administer its own permit program and has done so
ever since.
West Virginia has promulgated a number of regulations
necessary to comply with the national NPDES program. All West
Virginia NPDES permits incorporate (either expressly or by
reference) numerous provisions of the West Virginia Code of
State Rules. These include a series of regulations governing
NPDES permits in general, as well as a separate series of
regulations governing NPDES permits for coal mining. Compare
W. Va. Code R. § 47-10 (2016) (general NPDES regulations), with
W. Va. Code R. § 47-30 (coal mine NPDES regulations).
In 1996, Fola Coal Company, LLC obtained a West Virginia
NPDES coal mine permit to discharge into Stillhouse Branch, a
tributary of Twentymile Creek and a waterway adjacent to Fola’s
surface mining facility in central West Virginia. Fola applied
4
for and received a renewed NPDES permit in 2009. The provisions
of that permit lie at the heart of this case.
B.
On March 13, 2013, three environmental groups -- Ohio
Valley Environmental Coalition, West Virginia Highlands
Conservancy, and Sierra Club (collectively “the Coalition”) --
filed this action under the Clean Water Act’s citizen suit
provision, 33 U.S.C. § 1365. The Coalition alleged that Fola
violated 5.1.f, a West Virginia regulation incorporated in
Fola’s permit. At the time Fola’s renewal permit was issued in
2009, 5.1.f provided:
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
adopted by the Department of Environmental Protection,
Title 47, Series 2.
W. Va. Code R. § 47-30-5.1.f (2009). The Coalition alleged that
Fola violated 5.1.f by discharging ions and sulfates in
sufficient quantities to cause increased conductivity in
Stillhouse Branch, which resulted in a violation of water
quality standards. Specifically, the Coalition asserted that
Fola’s discharges violated two narrative water quality standards
contained in Fola’s permit. See id. §§ 47-2-3.2.e, -3.2.i
(2016); see infra n.8.
In response to the Coalition’s allegations, Fola pointed
out that it disclosed the nature of its discharges when it
5
applied for the 2009 renewal permit. At that time, Fola had
stated that its discharges would include ions and therefore be
highly conductive. Despite this disclosure, the West Virginia
Department of Environmental Protection (“WVDEP”) set no specific
limitations on conductivity in Fola’s permit. By declining to
do so, Fola asserted, WVDEP made an affirmative choice not to
impose any limit on conductivity. According to Fola, it
followed that 5.1.f did not obligate Fola to limit the
conductivity of its discharges even if that conductivity
resulted in a violation of water quality standards. Fola
reasoned that, because it complied with the effluent limits
expressly set out in its permit, the permit shielded it from all
liability under the Act.
To gain support for its view that 5.1.f imposed no
obligation on it, in 2013 Fola sought clarification from WVDEP
regarding a new West Virginia law enacted a year earlier,
involving the permit shield. The new law provided that
“Notwithstanding any rule or permit condition to the
contrary, . . . compliance with a permit issued pursuant to this
article shall be deemed compliance for purposes of” the Clean
Water Act’s permit shield. 2012 W. Va. SB 615 (formerly
codified at W. Va. Code § 22-11-6(2) (2013)). WVDEP responded
that, in its view, this legislation did not substantively change
existing law but simply clarified West Virginia’s consistent
6
interpretation of the permit shield. Under this assertedly
consistent view, a permit holder need only disclose its
discharges of effluents to WVDEP and comply with the effluent
limits in the permit. If the permit holder did this, according
to WVDEP, the permit would shield the permit holder from all
liability under the Clean Water Act.
In 2015, WVDEP attempted to remove from 5.1.f the language
at issue in this case, which requires permit holders to comply
with water quality standards. In doing so, WVDEP admitted that
when the agency had issued Fola a renewal permit in 2009, 5.1.f
“require[d] coal NPDES permittees to meet water quality
standards, whether or not such standards are delineated in the
permit or contained in the administrative record of the
permitting process.” WVDEP, Response to Comments, 47 CSR 30,
WV/NPDES Rule for Coal Mining Facilities, at 1 (2014), http://
apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=26342&Format=PDF.
Nonetheless, WVDEP opined that its removal of the relevant
language from 5.1.f “does nothing more than make [state law]
consistent with” the Clean Water Act, which, according to WVDEP,
did not require compliance with water quality standards. Id.
Notwithstanding WVDEP’s views, EPA did not approve WVDEP’s
attempted changes to 5.1.f. Instead, in a series of letters to
WVDEP, EPA explained its concerns that the elimination of the
water quality standards language in 5.1.f could cause state law
7
to conflict with federal law and weaken the state’s NPDES
program. WVDEP’s explanations did not assuage EPA’s concerns,
and EPA did not approve any changes to 5.1.f or to any other
language incorporated in Fola’s permit. In 2015, the West
Virginia Legislature enacted another provision similar to SB 615
that explicitly prohibited enforcing water quality standard
violations against permit holders. But again, EPA did not
approve the removal of the relevant portion of 5.1.f or any
similar changes to the state’s NPDES permit program that might
affect Fola’s permit.
Nevertheless, armed with WVDEP’s interpretation of SB 615
and the legislative actions outlined above, Fola urged the
district court to hold that permit provision 5.1.f did not
prohibit Fola from violating West Virginia water quality
standards. Fola further contended that it could not be held
accountable for increased conductivity and resulting water
quality violations because the effluents it discharged fell
within the numerical levels allowed in its permit or were
disclosed during the permitting process.
C.
After a bench trial, at which the district court considered
mountains of expert testimony, reports, and charts, the court
issued a thorough written opinion. The court found that 5.1.f
constituted an enforceable permit provision that required Fola
8
to refrain from violating West Virginia’s water quality
standards, including the narrative water quality standards
contained in §§ 47-2-3.2.e and -3.2.i.
The court found that mine drainage like that which Fola
discharged into Stillhouse Branch deposited significant amounts
of ions into the receiving water. 1 Ohio Valley Envtl. Coalition,
Inc. v. Fola Coal Co., 82 F. Supp. 3d 673, 686–87 (S.D. W. Va.
2015). These ions are measured by conductivity, id. at 687, and
the conductivity of Stillhouse Branch had markedly increased
since Fola began discharging mine drainage into the water, id.
at 696–98.
As conductivity in Stillhouse Branch increased, the experts
explained and the court found, sensitive insect species, which
could not adapt to the sudden and dramatic change, died. Id. at
687. The decrease in aquatic diversity caused a decrease in the
stream’s score on the West Virginia Stream Condition Index (“the
1
In order to extract coal, Fola blasted rock and dumped it
into Stillhouse Branch. See Gregory J. Pond et al., Downstream
Effects of Mountaintop Coal Mining: Comparing Biological
Conditions Using Family- and Genus-Level Macroinvertebrate
Bioassessment Tools, 27 J. N. Am. Benthological Soc’y 717, 718
(2008) (explaining surface coal mining). The minerals in the
rock reacted with the flowing water to release calcium,
bicarbonate, and sulfate ions. See Emily S. Bernhardt et al.,
How Many Mountains Can We Mine? Assessing the Regional
Degradation of Central Appalachian Rivers by Surface Coal
Mining, 46 Envtl. Sci. & Tech. 8115, 8115 (2012).
9
Index”), 2 which WVDEP and EPA had long used to measure the health
of streams. The court noted that EPA considered Index scores
below 68 to indicate impairment and that, in 2009 when WVDEP
issued Fola’s renewal permit, WVDEP had generally shared that
view. See id. at 677, 679 & n.4. The trial evidence
established that since 2003 Stillhouse Branch had consistently
scored well below 68, ranging from 31.6 to 58.17. Id. at 696.
The district court concluded that “when conductivity
reaches 300 [µS/cm], it is more likely than not that” the Index
score will drop below 68 and “the subject stream will be
biologically impaired.” Id. at 687 (citing EPA, A Field-Based
Aquatic Life Benchmark for Conductivity in Central Appalachian
Streams (Final Report), EPA/600/R-10/023F, at A-36 (2011)).
Samples from Stillhouse Branch reported conductivity that was
ten times higher than this 300 µS/cm threshold. Id. at 696–98.
The court found that Fola’s mining increased conductivity in
Stillhouse Branch and that “high conductivity in downstream
Stillhouse Branch is causing -- or, at the very least materially
contributing to -- a significant adverse impact to the chemical
and biological components of the stream’s aquatic ecosystems” in
2 See A Stream Condition Index for West Virginia Wadeable
Streams 1-2 (2000), http://www.dep.wv.gov/WWE/watershed/bio_fish
/Documents/WVSCI.pdf.
10
violation of the West Virginia narrative water quality standards
incorporated into Fola’s permit. Id. at 698.
With respect to remedy, the district court, at Fola’s
urging, rejected the Coalition’s proposed remedy as too
burdensome. Instead, the court appointed a Special Master of
Engineering to monitor Fola’s implementation of less burdensome
methods Fola proposed. Fola timely noted this appeal.
D.
A court must interpret an NPDES permit as it would a
contract. Piney Run Pres. Ass’n v. Cty. Comm’rs, 268 F.3d 255,
269 (4th Cir. 2001). Thus, to the extent that the judgment of
the district court rests on interpretation of Fola’s NPDES
permit, that interpretation constitutes a legal question, which
we review de novo. Id. But to the extent that judgment rests
on factual findings made after a bench trial, we can reverse
only if those findings are clearly erroneous. Id.
II.
Fola principally contends that the district court
misinterpreted its permit.
In doing so, Fola presents a narrow argument. The company
expressly acknowledges that its permit “incorporates” 5.1.f.
Reply Br. at 3. Fola admits that “permit holders are not
shielded from violations of permit conditions.” Id. at 1. And
11
the company forgoes any claim that 5.1.f does not impose water
quality standards, including those found in 3.2.e and 3.2.i.
Fola’s sole argument is that 5.1.f controls the conduct of
WVDEP, the state regulator, and imposes no requirements on Fola,
the regulated entity.
Fola offers three points assertedly supporting this
argument. First, the company maintains that 5.1.f is ambiguous
but is best interpreted as a regulation of the permitting
authority, not the permit holder. Second, Fola contends that
the district court failed to examine “extrinsic evidence,” which
it argues eliminates any ambiguity and demonstrates that, in the
“contemplation of the parties,” 5.1.f clearly imposed no
obligation on the permit holder. Finally, Fola claims that our
holding and analysis in Piney Run requires a court to conclude
that 5.1.f imposes obligations only on the permitting authority.
We consider each of these arguments in turn.
A.
We initially examine the language of Fola’s permit to
determine if it is indeed ambiguous. As we recognized in Piney
Run, “if ‘the language [of a permit] is plain and capable of
legal construction, the language alone must determine’ the
permit’s meaning.” Piney Run, 268 F.3d at 270 (quoting FDIC v.
Prince George Corp., 58 F.3d 1041, 1046 (4th Cir. 1995)).
12
Contrary to Fola’s assertions, the text of 5.1.f of the
permit seems straightforward and unambiguous. The provision
prohibits “discharges covered by” the permit from violating
water quality standards. Of course, it is the permit holder
that generates “discharges covered by” the permit. Thus, the
provision controls the activities of the permit holder -- here
Fola. The state agency simply drafts the permit. That agency,
WVDEP, has no control over the permit holder’s discharges.
Further, there is no mention in 5.1.f of “regulating,”
“drafting a permit,” or “determining effluent limits,” all core
activities of the state regulator. Rather, the language of
5.1.f focuses on the discharges themselves. One would have to
rewrite 5.1.f substantially to read it as imposing obligations
on WVDEP. 3 As written, the plain language of 5.1.f indicates it
applies to Fola, the permit holder, not WVDEP, the agency
granting the permit.
Review of the provisions surrounding 5.1.f further supports
this conclusion. 5.1.f is contained in a section of the permit
3 For example, if 5.1.f imposed requirements on the state
regulator rather than the permit holder, it would more naturally
read: “The discharge or discharges covered by a WV/NPDES permit
are to be of such quality regulated by the Department of
Environmental Protection so as not to cause violation of
applicable water quality standards adopted by the Department of
Environmental Protection that agency, Title 47, Series 2.”
Notably, these changes would require both insertions and
deletions.
13
entitled “Conditions Applicable to All Permits,” and in a
subsection entitled “Duty to Comply; Penalties.” The first
mandate of the subsection states, “The permittee must comply
with all conditions of a WV/NPDES permit.” See W. Va. Code R.
§ 47-30-5.1.a (2009) (emphasis added).
This subsection then lists several ways a permit holder can
violate the permit separate and apart from violations of the
permit’s effluent limits. For example, under this subsection, a
permit holder violates the permit when it “falsifies, tampers
with, or knowingly renders inaccurate any monitoring device or
method required to be maintained under a WV/NPDES permit.” Id.
§ 47-30-5.1.d. And a permit holder violates a permit when it
“knowingly makes any false statement, representation, or
certification in any record or other document submitted or
required to be maintained under this permit.” Id. § 47-30-
5.1.e.
It seems unlikely that immediately following these clear
restrictions on permit holders, in a subsection specifically
addressed to permit holders, the drafters inserted in 5.1.f a
directive not to permit holders, but only to the regulating
agency. Indeed, it makes little sense for 5.1.f to be
incorporated into all coal mining permits, see id. § 47-30-5, if
5.1.f does not obligate the permit holder in any way.
14
Accordingly, the district court’s conclusion that 5.1.f
unambiguously regulates permit holders seems entirely warranted. 4
B.
Furthermore, rather than supporting Fola’s interpretation,
all relevant extrinsic evidence points to the conclusion that
5.1.f imposes obligations on the permit holder, not the state
permitting agency.
Fola’s argument to the contrary relies almost entirely on
statements from WVDEP and the West Virginia Legislature. Fola
contends that these statements prove that neither body intended
5.1.f to create an obligation on permit holders to meet water
quality standards beyond the numerical effluent limits in the
permit. The Legislature’s 2013 and 2015 amendments and WVDEP’s
statements certainly evince West Virginia’s present desire to
cease enforcement of water quality standards against permit
holders. But neither WVDEP’s current interpretation nor the
Legislature’s actions in amending state law in 2013 and 2015
constitute extrinsic evidence supporting Fola’s interpretation
of its 2009 permit.
4 Fola contends that the district court’s holding renders
the effluent limits in the permit superfluous. But by Fola’s
own admission, the effluent limits do not delineate all the
discharges disclosed to the regulating agency. 5.1.f captures
those discharges, not explicitly regulated by effluent limits,
which nonetheless decrease water quality and harm the aquatic
ecosystem.
15
And Fola is simply wrong in contending that “[t]here is no
evidence that West Virginia ever intended” to hold permit
holders liable for violations of water quality standards. Br.
of Appellant at 34 (emphasis added). In fact, Fola has provided
no evidence that the Legislature or WVDEP lacked this intent
when Fola’s renewal permit was issued in 2009. Rather, the
record evidence indicates this was precisely what was intended.
In 2011, two years after the issuance of Fola’s current
permit, WVDEP pursued an enforcement action against Fola’s
parent company based on violations of the exact water quality
standards at issue here as incorporated into the NPDES permit
through 5.1.f. See Complaint in Intervention at 12, United
States v. Consol Energy, Inc., No. 1:11-cv-0028 (N.D. W. Va.
Mar. 14, 2011), ECF No. 6-1. And Fola’s parent company agreed
to injunctive relief to remedy these violations. Consent
Decree, Consol Energy, No. 1:11-cv-0028 (N.D. W. Va. Jun. 15,
2011), ECF No. 3-1. Moreover, as late as 2015, WVDEP
interpreted 5.1.f to require coal companies holding NPDES
permits to meet water quality standards. See WVDEP, Response to
Comments, at 1. This was the very reason why WVDEP attempted to
amend 5.1.f. See id.
Fola nonetheless insists that 5.1.f cannot subject it to
any substantive obligations because, during the formal
rulemaking in which 5.1.f was added to West Virginia’s NPDES
16
program, EPA stated that the new rules would not alter any
“substantive rights or obligations.” Revision of West
Virginia’s NPDES Program Transferring Authority over Coal Mines
and Coal Preparation Plants from the West Virginia Department of
Natural Resources; Division of Water Resources to Its Division
of Reclamation, 50 Fed. Reg. 2996, 2997 (Jan. 23, 1985). That
argument both misreads the history of 5.1.f and ignores
important record evidence.
5.1.f’s prohibition against violating water quality
standards originated in pre-1984 West Virginia surface coal
mining regulations. See West Virginia Surface Mining
Reclamation Regulations, ch. 20-6, ser. VII, § 6B.04 (1983)
(“Effluent Limitations - Discharge from the permit area shall
not violate effluent limitations or cause a violation of water
quality standards.”). At that time, the surface coal mining
regulations clearly recognized that permit holders were subject
to enforcement actions for violating both effluent limitations
and water quality standards. Id. In 1984, West Virginia
consolidated its surface coal mining regulations with its water
pollution regulations. See Preamble to Proposed Regulations
Consolidating the Article 5A and Article 6 Program (filed Nov.
9, 1984). As a result of this consolidation, the regulations
governing NPDES permits for coal mines thereafter included
17
provisions like 5.1.f that were previously found in the surface
mining regulations. See WVDEP, Response to Comments, at 1.
The origin of 5.1.f renders untenable Fola’s reliance on
EPA’s determination that the consolidated new regulations did
not alter “substantive rights or obligations.” EPA was correct.
The new regulations did not alter any obligations under a
permit; they simply brought existing obligations on surface coal
mines into a single regulatory scheme. Surface coal mining
facilities were already subject to substantively identical
obligations prior to the consolidation of the regulations.
Thus, EPA had no reason to conclude that the consolidated
regulations altered any “substantive rights or obligations.”
Moreover, although ignored by Fola, EPA’s view as to the
reach of 5.1.f has been consistent, as has the acceptance by
courts of EPA’s view when interpreting similar water quality
provisions. In contrast to WVDEP’s recent change of heart, EPA
has remained clear through the years that 5.1.f imposes
obligations on permit holders. Before us, EPA has filed an
authoritative amicus brief pointing this out and reiterating its
position. As EPA notes in its brief, some of the NPDES permits
that EPA itself has issued impose narrative water quality
18
standards like those in Fola’s permit. 5 That water quality
standards have been enforced against NPDES permit holders
demonstrates the error in Fola’s contention that 5.1.f cannot
reasonably be interpreted to impose obligations on permit
holders like Fola.
In sum, both the plain language of the provision and the
extraneous evidence support the district court’s holding that
5.1.f constitutes, as it has for decades, a regulation
enforceable against NPDES permit holders, not the state
permitting agency.
C.
Finally, Fola argues that our holding in Piney Run somehow
prohibits this conclusion. According to Fola, Piney Run held
that permit holders “who disclose their pollutants to the
permitting agency and thereafter comply with the effluent limits
5
See, e.g., EPA NPDES Permit No. NH0100099 for the Town of
Hanover, New Hampshire, pt. I.A.2, .3 and .6, https://www3.epa
.gov/region1/npdes/permits/2015/finalnh0100099permit.pdf; EPA
2015 Multi-Sector General Permit for Stormwater Discharges
Associated with Industrial Activity, pt. 2.2.1, https://
www.epa.gov/sites/production/files/2015-10/documents/msgp2015
_finalpermit.pdf. Moreover, courts have enforced water quality
standards provisions when, as here, the NPDES permit
incorporates these standards. See, e.g., Nat. Res. Def.
Council, Inc. v. Cty. of Los Angeles, 725 F.3d 1194, 1199, 1205
(9th Cir. 2013); Nw. Envtl. Advocates v. City of Portland, 56
F.3d 979, 985–90 (9th Cir. 1995); Nat. Res. Def. Council v.
Metro. Water Reclamation Dist. of Greater Chicago, 175 F. Supp.
3d 1041, 1049–54 (N.D. Ill. 2016). In support of its contrary
view, Fola relies on inapposite, unpublished, and overruled
cases.
19
in their NPDES permits are shielded from liability” under the
Clean Water Act. Br. of Appellant at 43. Therefore, Fola
contends, since it “disclosed the presence of conductivity in
its discharges and has complied with the effluent limits
established by . . . WVDEP,” it too is shielded from liability
under the Act, even if it violated provision 5.1.f of its
permit. Id. There are multiple problems with this contention.
First, and most fundamentally, Fola misstates our holding
in Piney Run. We expressly held that a permit shields “its
holder from liability . . . as long as . . . the permit holder
complies with the express terms of the permit and with the Clean
Water Act’s disclosure requirements.” Piney Run, 268 F.3d at
259 (emphasis added). 6 Fola ignores the emphasized language and
wishes away its violation of one of “express terms of the
permit” -- provision 5.1.f. Piney Run offers no support for
this approach.
Fola attempts to bolster its misunderstanding of Piney Run
by misinterpreting the careful examination of the history of the
Clean Water Act we set forth in that case. See id. at 264-66.
We recognized that requirements that permit holders meet water
6Of course, to obtain the benefits of the permit shield a
permit holder must also not discharge a pollutant in excess of
the effluent limitations for that pollutant as listed in the
permit. Piney Run, 268 F.3d at 259. That requirement is not at
issue here.
20
quality standards had been the “primary means of federal
regulation” prior to the 1972 enactment of the Clean Water Act.
Id. at 264. The Act provided regulators with another tool --
“direct limitations on the discharge of pollutants” in the form
of numerical caps on those discharges -- and a means to regulate
-- NPDES permits. Id. at 265 (quoting Friends of the Earth,
Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 151 (4th
Cir. 2000)(en banc)).
In Piney Run, we explained that adherence to its permit
shielded a permit holder from liability under the Act. Id. But
contrary to Fola’s apparent belief, we did not hold that
numerical limitations on specific pollutant discharges
constituted the only proper subject of regulation under the
Clean Water Act. Rather, we noted that, despite the Clean Water
Act’s “shift in focus of environmental regulation towards the
discharge of pollutants, water quality standards still have an
important role in the [Clean Water Act’s] regulatory scheme.”
Id. (emphasis added).
Compounding its error, Fola refuses to recognize that Piney
Run involved very different issues than those presented here.
In Piney Run, we did not consider the enforceability of a
permit’s requirement that the permit holder adhere to water
quality standards, let alone the enforceability of the specific
narrative water quality standards required by West Virginia’s
21
NPDES permit. Piney Run involved the enforcement of numerical
limitations on the discharge of pollutants under a very
different Maryland NPDES permit. 7 In that context, we concluded
that the holder of a Maryland NPDES permit who “discharges
pollutants that are not listed in its permit” was nonetheless
shielded from liability under the Clean Water Act if it
“adequately disclosed” those discharges “to the permitting
authority.” Id. at 268.
But this conclusion in Piney Run does not allow an NPDES
permit holder in West Virginia to ignore 5.1.f’s requirement
“not to cause violation of applicable water quality standards.”
Indeed, although Piney Run involved a permit that regulated only
numerical effluent limitations, rather than also directing
adherence to water quality standards like the permit at issue
here, we iterated and reiterated that only “follow[ing] the
terms of their NPDES permits” allows permit holders to avoid
liability. Id. at 265; see also id. at 259 (explaining that to
be shielded from liability under the Clean Water Act, a permit
holder must comply “with the express terms of [its] permit”).
Piney Run provides Fola no way to avoid liability if Fola has
7Maryland’s NPDES permits do not contain a provision
similar to 5.1.f. Rather, unlike in West Virginia, the Maryland
permitting agency simply will not issue a permit unless it
“finds that the discharge meets . . . applicable State and
federal water quality standards.” Md. Code Ann., Envir. § 9-
324(a)(1) (West 2016).
22
not complied “with the express terms of its permit,” including
provision 5.1.f.
Nothing in Piney Run forbids a state from incorporating
water quality standards into the terms of its NPDES permits.
Rather, Piney Run held, as we do today, that a permit holder
must comply with all the terms of its permit to be shielded from
liability. The terms of Fola’s permit required it to comply
with water quality standards. If Fola did not do so, it may not
invoke the permit shield.
III.
Having rejected Fola’s principal contention that 5.1.f
imposes no obligations on it, we turn to Fola’s remaining
argument -- that the district court erred in finding that Fola
violated 5.1.f.
A.
Through 5.1.f., Fola’s permit incorporates narrative water
quality standards prohibiting discharges into Stillhouse Branch
that are “harmful” or have a “significant adverse impact” on
aquatic ecosystems. 8 In a long, remarkably thorough opinion, the
8 These standards provide in relevant part:
3.2 No sewage, industrial wastes or other wastes
present in any of the waters of the state shall cause
therein or materially contribute to any of the
following conditions . . .
(Continued)
23
district court explained its reasons for concluding that Fola’s
discharges into Stillhouse Branch violated these narrative water
quality standards in Fola’s permit. The court relied on the
testimony, reports, charts, studies, and exhibits from
experienced scientists who had published extensively in peer-
reviewed journals. All of the experts supported the Coalition’s
contention that Fola violated the permit’s narrative water
quality standards. 9
In doing so, the experts used the West Virginia Stream
Condition Index to determine whether Fola’s discharges
biologically compromised Stillhouse Branch. Both EPA and WVDEP
have long used the Index to measure water quality. When a
. . .
3.2.e. Materials in concentrations which are
harmful, hazardous or toxic to man, animal or
aquatic life;
. . .
3.2.i. Any other condition, including
radiological exposure, which adversely alters the
integrity of the waters of the State including
wetlands; no significant adverse impact to the
chemical, physical, hydrologic, or biological
components of aquatic ecosystems shall be
allowed.
W. Va. Code R. § 47-2-3 (2016).
9 Fola offered a witness whom the district court found
“h[eld] no training in the study of ecology” and, prior to being
retained by Fola as an expert in this litigation, “had never
analyzed the type of ecological data” at issue here. Fola, 82
F. Supp. 3d at 681. On appeal, Fola does not suggest that the
district court should have credited this witness’s testimony.
24
stream’s Index score falls below 68, EPA considers the stream
impaired under 33 U.S.C. § 1313(d). See infra n.11. The
experts explained that the release of ions from Fola’s
discharges caused the conductivity in Stillhouse Branch to
increase and sensitive insect species to die, thereby causing
the stream’s Index score to fall well below 68. Fola, 82 F.
Supp. 3d at 696. On the basis of the expert evidence, the
district court found that Fola’s discharges caused or materially
contributed to the impairment of Stillhouse Branch by increasing
the conductivity of the stream.
On appeal, Fola makes no contention that the district court
erred in finding that Fola’s discharges in fact caused or
materially contributed to the biological impairment in
Stillhouse Branch. And Fola does not argue that narrative water
quality standards cannot be enforced; it could not do so given
that the Supreme Court has held to the contrary. See PUD No. 1
of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 716
(1994) (explaining that the Clean Water Act “permits enforcement
of broad, narrative criteria” and “only one class of criteria,
those governing ‘toxic pollutants listed pursuant to section
1317(a)(1),’ need be rendered in numerical form”).
Instead, Fola offers brief and largely derivative “process”
arguments. A substantial portion of those arguments involve
Fola’s mischaracterization of the district court’s careful and
25
detailed fact-finding. Fola attempts to treat that fact-
finding, which of course can only be reversed if clearly
erroneous, as “rulemaking” subject to de novo review.
B.
First, Fola maintains that it was deprived of “fair notice”
that water quality standards were enforceable provisions of its
permit. This assertion rests on Fola’s own misinterpretation of
the language in its 2009 permit and a studied refusal to
acknowledge that language’s history, all of which we detail
above. Suffice it to say again that, when the Coalition filed
this lawsuit in March 2013, Fola had been bound by the 2009
permit at issue here for four years. Moreover, in 2011, two
years prior to the commencement of this action, WVDEP brought
suit to enforce the water quality standards at issue here
against Fola’s parent company. And, prior to initiation of this
case, Fola’s parent company had in fact agreed to take measures
to remedy its violations of those water quality standards. Fola
thus had ample, personalized notice that the water quality
standards in a West Virginia NPDES permit were enforceable, and
would be enforced, against a permit holder.
Fola next contends that it relied on guidance from WVDEP
that the State would not pursue any enforcement action based on
conductivity or water quality standards. But again as explained
above, Fola offers no evidence that WVDEP made any such
26
assurance in 2009 when WVDEP last renewed Fola’s permit.
Moreover, such contemporaneous assurances seem unlikely given
WVDEP’s decision in 2011 to bring an enforcement action based on
these very water quality standards. Further, even if Fola had
offered evidence that WVDEP made such assurances when it issued
Fola’s renewal permit in 2009, that would not foreclose the
Coalition from bringing this lawsuit. For Congress enacted the
citizen suit provision of the Clean Water Act to address
situations, like the one at hand, in which the traditional
enforcement agency declines to act. See Gwaltney of Smithfield,
Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 53, 60 (1987).
An agency’s informal assurance that it will not pursue
enforcement cannot preclude a citizen’s suit to do so. See 33
U.S.C. § 1365(b)(1)(B).
Finally, Fola argues that the district court engaged in
unlawful rulemaking. That argument is similarly unsound.
Hornbook law defines “a rule” as “a generally applicable
principle or standard developed by some authority including
administrative authorities.” 1 Admin. L. & Prac. § 1:20 (3d ed.
2016). The district court did not create any “generally
applicable principle or standard.” The court made factual
findings based on the evidence presented in this particular
case. The only rules for which the court found Fola liable are
contained in its permit, specifically §§ 47-30.5.1.f and 47-2-
27
3.2.e and -3.2.i. These rules have long been incorporated into
Fola’s permit, and EPA has never approved their removal. They
remain unchanged and controlling.
We must reject Fola’s attempts to transform the district
court’s detailed fact-finding into rulemaking. After carefully
assessing the record before it, the district court found as a
fact that that a failing Index score indicated an impaired
stream and that Fola’s mining caused the increased conductivity
that resulted in that impairment. These findings are well
supported by the record evidence. None are clearly erroneous.
Some even rest on undisputed facts. For example, EPA has
identified, and Fola does not dispute, “mining” as the source of
the impairment of Stillhouse Branch. See WVDEP, 2012 Final West
Virginia Integrated Water Quality Monitoring and Assessment
Report List Page 14 (reviewing the 2012 Clean Water Act Section
303(d) Impaired Waters List). Moreover, Fola stipulated that
its mine is the only mine that discharges into Stillhouse
Branch. And WVDEP itself has explained, and Fola does not
disagree, that the Index “was specifically designed for
assessment of the biological component of the 47 C.S.R. 2
§ 3.2.i narrative criteria” as applicable to waters such as
Stillhouse Branch. WVDEP, Justification and Background for
Permitting Guidance for Surface Coal Mining Operations to
Protect West Virginia’s Narrative Water Quality Standards, 47
28
C.S.R. 2 §§ 3.2.e and 3.2.i, at 4 (2010),
http://www.dep.wv.gov/pio/Documents/Narrative/Narrative Standard
s Guidance Justification.pdf.
Despite this historic consensus, Fola argues that WVDEP has
recently rejected the Index as a sole determinant of water
quality, and that the court has therefore “usurped” the agency’s
role in its use of the Index. This argument rests on a
mischaracterization of the district court’s use of the Index.
The court did not enshrine the Index as the sole acceptable
method of establishing violations of water quality standards.
Rather, the court explained that it only relied on the Index
“[i]n the absence of [WVDEP] advancing a meaningful
methodological alternative.” Fola, 82 F. Supp. 3d at 679. On
appeal, neither Fola nor WVDEP points to any “methodological
alternative” to the Index. In the absence of any alternative,
the district court simply applied the methodology both WVDEP and
EPA have applied for years.
The district court found that, until 2012, EPA and WVDEP
had generally agreed to use an Index score of 68 to determine
whether water quality standards were being met. If a stream
scored below 68, the stream was to be listed as impaired. Id.
29
at 677. 10 The record offers abundant support for this finding.
See, e.g., Letter from Shawn M. Garvin, EPA Regional
Administrator, to Randy C. Huffman, Secretary, WVDEP
[hereinafter Garvin Letter], Enclosure 1, at 16 (Mar. 25, 2013)
(“When determining whether to add waters to West Virginia’s
Section 303(d) list, EPA used West Virginia’s narrative water
quality criteria (W. Va. CSR §§ 47-2-3.2(e) & (i)) as applied to
the aquatic life uses, and WVDEP’s bioassessment listing
methodology for its 2010 Section 303(d) list (i.e., [the Index])
. . . .”); see also WVDEP, 2010 West Virginia Integrated Water
Quality Monitoring and Assessment Report 14 (2010) (explaining
the direct relationship between § 47-2-3.2.i, Index scores, and
impaired water listing).
Indeed, Fola concedes that EPA and WVDEP have long used the
Index. Neither agency -- nor anyone else before this case --
suggested that this use required promulgation of a formal rule.
Rather, the Index has been used, as the district court used it,
as a method for assessing compliance with narrative water
10
Prior to 2012 when it ceased using the Index to determine
impairment, WVDEP had attempted to include a “gray-zone” listing
between 60.6 and 68.0. EPA rejected this approach as
“unsupportable,” and continues to use 68 as the threshold. See
Garvin Letter, Enclosure 1, at 12 n.3. For our purposes, this
dispute is immaterial because the district court found that
Stillhouse Branch had an Index score ranging from 31.60 to
58.17. Fola, 82 F. Supp. 3d at 696. Fola does not challenge
these findings.
30
quality standards. Far from creating a rule for determining
violations of water quality standards, the court simply made a
factual determination using the Index as a well-established
methodology. Employing this methodology, the district court
came to the same conclusion as EPA had -- Stillhouse Branch was
impaired. 11
Similarly, contrary to Fola’s assertions, the district
court’s determinations as to conductivity also constituted
findings of fact, not rulemaking. The court heard extensive
expert testimony on the causal relationship between increased
conductivity in Appalachian streams and impairment as evidenced
by declining Index scores. Fola, 82 F. Supp. 3d at 679-86. The
court credited the testimony of accepted experts and an
authoritative EPA publication. All concluded that mining
activities cause increases in conductivity, which in turn cause
impairment. Id. at 686–96.
The court noted that peer-reviewed scientific articles
first recognized the relationship of mining, conductivity, and
11While Fola focuses on notice as it relates to procedure,
it is worth mention that Fola also had notice of the court’s
factual determination that Stillhouse Branch was impaired.
WVDEP (with EPA approval) has listed Stillhouse Branch on its
impaired waters list based on biological impairment since 2006.
See WVDEP, 2006 Integrated Water Quality Monitoring and
Assessment Report List Page 15 (2006); id. at 20 (explaining
that WVDEP assessed biological impairment using the Index).
31
decreased Index scores in 2008, a year before issuance of Fola’s
renewal permit. See id. at 690 (citing Pond et al., supra n.1).
Other articles strengthened these findings. Id. (citing, among
others, M.A. Palmer et al., Mountaintop Mining Consequences, 327
Sci. 148 (2010) (finding that as conductivity increased, Index
scores decreased)). In rebuttal, Fola offered an expert whom
the district court found unqualified -- an assessment Fola does
not challenge on appeal.
Finally, the relief the district court ordered belies any
suggestion that it engaged in rulemaking. The court had the
“discretion to determine” appropriate relief. See Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 192 (2000). In exercising that discretion, the district
court refused to order Fola to implement the solution the
Coalition proposed, a reverse osmosis system. The court deemed
this solution “too expensive and too uncertain.” Order
Specifying Relief at 5, Fola, No. 2:13-cv-5006 (S.D. W. Va. Dec.
8, 2015), ECF No. 183. Instead, the court appointed a special
master to oversee implementation of Fola’s proposed solution,
which focused on water management practices that respond to the
unique characteristics of Stillhouse Branch. Id. at 6–7. The
court did not require Fola to achieve any particular Index score
or conductivity level, but simply ordered Fola to take
appropriate measures either to reduce the conductivity in its
32
discharges or to increase the Index score of Stillhouse Branch.
Id. at 1. The relief ordered by the district court reflects its
careful fact-based findings, not unprincipled rulemaking.
In sum, Fola’s arguments as to why the district court erred
in finding that Fola violated its permit, like Fola’s arguments
as to the permit’s reach, uniformly fail.
IV.
Accordingly, for the reasons set forth above, the judgment
of the district court is
AFFIRMED.
33