Tuesday, November 9, 2010

West Virginia Highlands Conservancy v. Huffman (WVDEP)

Nov 8: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-1474. The West Virginia Department of Environmental Protection (WVDEP) appealed an injunction requiring it to obtain National Pollutant Discharge Elimination System permits under the Clean Water Act (CWA) for reclamation efforts at abandoned coal mining sites. The injunction was based on the district court's conclusion that the plain language of the CWA and applicable U.S. EPA regulations require such a permit. The Appeals Court said the trial court's ruling was correct.
    The text of the CWA, as well as the corresponding regulations issued by EPA, confirm that the permit requirements apply to anyone who discharges pollutants into the waters of the United States. The Appeals Court said, "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, WVDEP's 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."
    The Appeals Court states further in its conclusion, "In sum, WVDEP's state law obligations to take over bond forfeiture sites and engage in reclamation efforts invoke Clean Water Act obligations to obtain NPDES permits. Permit requirements are often, and sometimes understandably, a source of discomfort for those required to obtain them. If so, West Virginia can attempt to ease the burdens it foresees. It can petition Congress or the EPA to create exceptions to the CWA for states that move to ameliorate the problems private companies leave behind. Or WVDEP can address the other side of the equation and increase the funds available for reclamation, either by raising the SRF tax on coal or enlarging the bonds mining companies must post before beginning their work. Instead of availing itself of these various options, however, WVDEP asks us to bring about the very same results by misconstruing the Clean Water Act. There are better audiences for that invitation. We therefore affirm the judgment of the district court."
    Access the complete opinion (click here).

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