Documentos de Académico
Documentos de Profesional
Documentos de Cultura
No. 09-1474
COUNSEL
ARGUED: Benjamin L. Bailey, BAILEY & GLASSER,
LLP, Charleston, West Virginia, for Appellant. James M.
Hecker, PUBLIC JUSTICE, Washington, D.C., for Appellees.
ON BRIEF: Raymond S. Franks, WEST VIRGINIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Charleston, West Virginia, for Appellant. Joseph M. Lovett,
Derek Teaney, APPALACHIAN CENTER FOR THE
ECONOMY AND THE ENVIRONMENT, Lewisburg, West
Virginia, for Appellees. Gregory E. Conrad, Executive Director, INTERSTATE MINING COMPACT COMMISSION,
Herndon, Virginia; Richard S. Morrison, Assistant Counsel,
COMMONWEALTH OF PENNSYLVANIA, Department of
Environmental Protection, Harrisburg, Pennsylvania, for
Amicus Supporting Appellant.
OPINION
WILKINSON, Circuit Judge:
The West Virginia Department of Environmental Protection ("WVDEP") appeals an injunction requiring it to obtain
National Pollutant Discharge Elimination System permits
under the Clean Water Act ("CWA"), see 33 U.S.C. 1342
et seq., for reclamation efforts at abandoned coal mining sites.
The injunction was based on the district courts conclusion
that the plain language of the CWA and applicable EPA regulations require such a permit.
The trial courts ruling was correct. The text of the CWA,
as well as the corresponding regulations issued by the Environmental Protection Agency, confirm that the permit requirements apply to anyone who discharges pollutants into the
waters of the United States. Under the CWA, it does not matter that a mining company may have created the conditions
that call for reclamation. What matters is that an entity, private or public, is currently discharging pollutants into the
waters of the United States. In fact, the statute contains no
exceptions for state agencies engaging in reclamation efforts;
to the contrary, it explicitly includes them within its scope.
At bottom, WVDEPs arguments stem from little more than
policy disagreements with the statutory text. Finding that to
be an insufficient basis for deviating from the law as written,
we affirm the judgment of the district court.
I.
A.
Congress enacted the Federal Water Pollution Control Act
Amendments of 1972, better known as the Clean Water Act
("CWA"), in order to "restore and maintain the chemical,
physical, and biological integrity of the Nations waters." Pub.
L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C.
1251 et seq.). In furtherance of those goals, the CWA bans,
among other things, "the discharge of any pollutant by any
person." 33 U.S.C. 1311(a). On its face, the ban is sweeping
in scope: the Act defines "person" to include not just private
individuals and companies, but also states and municipalities,
see 33 U.S.C. 1362(5), and covers "any addition of any pollutant to navigable waters from any point source," see 33
U.S.C. 1362(12)(A).
In the coal industry, "the discharge of . . . pollutant[s]"
occurs frequently. The mining process often contaminates
water associated with the mine site (such as stormwater or
wastewater) with pollutants like iron and manganese. This
polluted water is known as "acid mine drainage" because mining makes the water quite acidic, often decreasing the pH to
well below 6.0. Under the pH scale, a pH of 7.0 is neutral, a
pH of less than 7.0 is acidic, and a pH of greater than 7.0 is
basic. The fact that acid mine drainage has a pH of at most
The Conservancy also filed a companion suit in the United States District Court for the Southern District of West Virginia based on elevated
pollutant levels at three bond forfeiture sites in that portion of the state.
The Conservancy successfully moved for summary judgment in August
2009. See W. Va. Highlands Conservancy v. Huffman, 651 F. Supp. 2d
512 (S.D. W.Va. 2009). On August 31, 2009, the court issued a judgment
requiring WVDEP to file NPDES permit applications within 180 days and
obtain those permits within 360 days.
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A.
First, WVDEP argues that it should be exempt from the
NPDES scheme because it is a state agency engaging in reclamation efforts rather than a private company intentionally discharging pollutants. But both the text of the CWA and the
EPAs implementing regulations squarely reject any exemption for state agencies like WVDEP. See 33 U.S.C. 1362(5)
(defining "person" as both a "State" and a "political subdivision of a State"); 40 C.F.R. 122.2 (defining a person as,
among other things, a "State or Federal agency"). Indeed, the
regulations describing the content of a permit application
require the operator to disclose its "status as Federal, State,
private, public, or other entity," thus denoting that state agencies are covered by the Act. 40 C.F.R. 122.21(f)(4) (emphasis added).
Moreover, the statute contains no exemption for reclamation efforts; to the contrary, it bans "the discharge of any pollutant by any person," regardless of their motives. 33 U.S.C.
1311(a) (emphasis added). Nonetheless, amicus Interstate
Mining Compact Commission ("IMCC") argues that the word
"addition" in the definition of "discharge of a pollutant"
implies "agency, i.e., responsibility for creating the polluting
condition" and excludes "actions which actually reduce the
load of pollutants which will enter the receiving surface
water." However, the word "addition," in context, means
something different from what IMCC suggests. By defining
"discharge of a pollutant" as "any addition of any pollutant to
navigable waters from any point source," 33 U.S.C.
1362(A) (emphasis added), the statute clearly covers all
additions no matter how small rather than merely net additions. In other words, "[t]he Act does not impose liability only
where a point source discharge creates a net increase in the
level of pollution. Rather, the Act categorically prohibits any
discharge of a pollutant from a point source without a permit."
Comm. to Save Mokelumne River v. E. Bay Mun. Util. Dist.,
13 F.3d 305, 309 (9th Cir. 1993). Indeed, WVDEP itself
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offers no serious response to this textual reality; to the contrary, it concedes that "some entity will always be responsible
for obtaining an NPDES permit when discharges requiring a
permit are occurring."
The regulations are fatal to WVDEPs position in other
ways as well. 40 C.F.R. 122.3 sets forth a list of
"[e]xclusions" from the NPDES permit requirement, but none
of them come close to covering WVDEP. Nevertheless,
WVDEP urges us to find its conduct covered by the Water
Transfers Rule, which states that no permit is required for "activity that conveys or connects waters of the United States
without subjecting the transferred water to intervening industrial, municipal, or commercial use." 40 C.F.R. 122.3(i). But
that exception only applies when pollutants are transferred
from one navigable water to another. 73 Fed. Reg. 33697,
33699 (June 13, 2008) ("[T]he water being conveyed must be
a water of the U.S. prior to being discharged to the receiving
waterbody."); see also Friends of the Everglades v. S. Fla.
Water Mgmt. Dist., 570 F.3d 1210, 1227 (11th Cir. 2009)
("[T]he EPAs [water transfer] regulation . . . accepts the unitary waters theory that transferring pollutants between navigable waters is not an addition . . . to navigable waters.").
Here, by contrast, neither the acid mine drainage nor the bond
forfeiture sites constitute "navigable waters." See 33 U.S.C.
1362(7); 40 C.F.R. 122.2. More importantly, the defendants were not "transferring" pollutants; they were discharging them. Any other construction would vitiate the Act.
B.
WVDEP also argues strenuously that it should not have to
obtain NPDES permits because it did not cause the discharges
in the first place. On WVDEPs view, the only parties that
need to obtain NPDES permits are the mining companies who
commence operations at new locations and set new discharges
in motion. WVDEP argues that those parties must continue to
pay daily civil penalties and cleanup costs even after their per-
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