On November 8, 2010, the U.S. Court of Appeals for the Fourth
Circuit issued its decision in West Virginia Highlands
Conservancy, et al. v. Huffman (Appeal No. 09-1474). It's
an opinion that should be of great interest to government agencies
and others who find themselves in a position of seeking to
remediate water quality problems left by third parties. The appeals
court decision in Huffman affirmed a district court ruling
requiring that the West Virginia Department of Environmental
Protection (WVDEP) issue National Pollutant Discharge Elimination
System (NPDES) permits to itself, to address water
discharges emanating from abandoned coal mining sites.
Though the case dealt with so-called bond forfeiture sites (areas
that were permitted after passage of the federal Surface Mining
Control and Reclamation Act of 1977), the legal principles that lie
behind the decision are equally applicable to work done at mining
sites that were abandoned before 1977 ("abandoned mine
lands" or "AML" sites), for which no site-specific
bond monies are available. In essence, the Fourth Circuit held that
the federal Clean Water Act establishes a structure whereby states
that are delegated NPDES permitting authority are also required, by
virtue of that delegation, to regulate themselves.
The case arose in the context of an effort by the WVDEP to use
monies available in its "Special Reclamation Fund" to
address acid mine drainage problems at various bond forfeiture
sites in northern West Virginia. Under state law, the WVDEP is
required to "take the most effective actions possible to
remediate acid mine drainage" at such sites. In most cases,
this takes the form of in-stream treatment works such as
waterwheels, which mechanically release neutralizing agents,
bringing the stream back to a more healthy condition. Here, the
plaintiff groups took the position that this kind of effort devoted
to actual stream conditions "was not enough." Instead,
plaintiffs pressed the district court to require that the WVDEP
issue NPDES permits to itself for each site, regulating the types
and concentrations of pollutants in discharges from those sites,
requiring monthly reporting (to itself), and exposing the Mining
and Reclamation Division of the WVDEP to potential enforcement
actions brought by the WVDEP for violations of effluent limits and
other NPDES permit conditions.
Though there can be little doubt that imposing these obligations
will increase the costs of such reclamation projects—and
thereby reduce the number of areas that may be
remediated—the Fourth Circuit agreed with the district
court's decision requiring that NPDES permits be
obtained.
In so ruling, the appeals court emphasized several principles that
would apply to any person who seeks to treat water discharging from
property that he or she owns or controls. Of primary importance is
the observation that "there is simply no causation requirement
in the [Clean Water Act]." In other words, that statute
"takes the water's point of view: water is indifferent
about who initially polluted it so long as pollution continues to
occur." Equating the WVDEP to a subsequent
"operator" of a mine, the court held that whenever an
owner abandons a mine, any other person who steps in to address
polluted runoff at that mine site becomes "the party
responsible for obtaining a permit."
The Clean Water Act, the court pointed out, is a "broadly
worded statute." Thus, when that statute prohibits the
discharge of "any pollutant by any person," it means just
that. In the words of the court: " 'Any' is a powerful
statutory term. The Clean Water Act uses it frequently." In
short, the court's opinion is fair warning to anyone who would
try to tiptoe around the implications of these statutory
prohibitions—regardless of how good one's intentions
may be.
Recognizing that the Special Reclamation Fund represents a limited
pool of recourses available to address a large number of bond
forfeiture and AML sites, is easy to foresee that the immediate
result of this decision will be to restrict the number of such
sites that the WVDEP is able to address. This would presumably be
contrary to the goals of the conservancy groups that brought the
lawsuit. However, looking beyond the short-term implications, it is
also reasonable to expect that this decision will lead to a renewed
push for both an increase in the $5,000-per-acre cap on bonds for
coal mine permits and more frequent denials of permit applications
where it can be shown that long-term water treatment may be
required after mining. Under either or both of those scenarios, the
ultimate result will likely be less coal mined in West Virginia,
which would be consistent with the plaintiff groups'
goals.
Though the potentially severe consequences of this decision are
evident based upon existing law and regulations, the federal
Environmental Protection Agency (EPA) recently initiated an effort
in this region that may make the situation even worse.
Specifically, on April 1, 2010, the EPA published
"Guidance" that imposes a pseudo water quality standard
for conductivity—limited in its application to coal
mining sites in the Appalachian states (including West Virginia).
The WVDEP, which has its own narrative water quality policy that is
intended to address the aquatic ecology concerns cited in the
EPA's guidance, has challenged that policy in federal court.
According to the WVDEP's complaint, the EPA is improperly
usurping the role of the state in setting water quality standards
under the Clean Water Act, and the proposed conductivity
"threshold" represents "an overbroad, generic
criterion" that is "unattainable" at many
sites.
The application of the April 1, 2010, EPA guidance will not only
greatly restrict permitting of new coal mines; if applied to bond
forfeiture and AML sites, it will also further reduce the number of
those areas that may be remediated by the WVDEP. Nevertheless, on
November 16, 2010—eight days after the Fourth
Circuit's decision in Huffman—a number of
groups petitioned the court to intervene on behalf of the EPA, to
help it defend its action. Included among that group: the West
Virginia Highlands Conservancy, lead plaintiff in
Huffman.
These legal skirmishes may be all about coal. But other
industries—and those who regulate them—should
keep a close watch on how far mining opponents are allowed to go in
hampering all efforts to maintain an effective permitting
program.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.