Ohio Valley Environmental Coalition v. Elk Run Coal Co.

Feb 13: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 07-1355, 07-1479, 07-1480, 07-1964, 07-2112. This is a high profile case on the controversial issue of mountaintop mining, involving dozens of parties Plaintiffs-Appellees Ohio Valley Environmental Coalition, the Coal River Mountain Watch, and the West Virginia Highlands Conservancy (hereinafter referred to collectively as OVEC) challenge the U.S. Army Corps of Engineers (Corps) issuance of four permits allowing the filling of West Virginia stream waters in conjunction with area surface coal mining operations.

Granting judgment for OVEC, the district court rescinded the permits as violations of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA). The court also enjoined all activity under those permits and remanded to the Corps for further proceedings consistent with its order. Separately, in an order dated June 13, 2007, the district court provided declaratory relief to OVEC, holding that the stream segments linking the permitted fills to downstream sediment treatment ponds were "waters of the United States" and that the Corps lacked authority under the CWA to permit discharge from the fills into the stream segments.

The Corps appealed the two orders and in a split decision, the Fourth Circuit reversed and vacated the district court’s opinion and order of March 23, 2007, and vacated the district court’s injunction. Additionally, the Fourth Circuit reversed the district court’s June 13, 2007, grant of declaratory relief and remanded the case for further proceedings consistent with its opinion.

The Appeals Court provides a straightforward explanation of the controversial practice of mountain top removal coal mining saying,"The mountaintop removal method of surface coal mining, pioneered in West Virginia, involves the blasting of the soil and rock atop a mountain to expose coal deposits below. While mining operations are ongoing, the overburden is hauled or pushed into adjacent valleys. This excavated overburden is known as "spoil." Once the coal has been extracted, efforts are made to re-contour the mountaintop by replacing the removed overburden, but stability concerns limit the amount of spoil that can be returned to the area. In its natural state, the spoil material is heavily compacted; once excavated, however, the loosening of the rock and soil and incorporation of air causes significant swelling. As a result, large quantities of the blasted material cannot be replaced, and this excess spoil (overburden) remains in the valley, creating a 'valley fill' that buries intermittent and perennial streams in the process.

"Water that collects in the fill must be moved out to ensure the fill’s continued stability. Thus, an underdrain system is constructed by placing large boulders up to and above the ordinary high-water mark of the stream. The collected water is then channeled into a treatment pond, where sediment from the runoff is allowed to settle. Sediment ponds usually are constructed in existing streambeds, using earth and rock to create an embankment. After sediments have settled out of the fill runoff, the treated water is discharged from the sediment pond back into existing streams. When practicable, a sediment pond will be constructed in the streambed immediately adjacent to the end (or "toe") of the fill. But, because West Virginia’s steep, mountainous topography often prevents this kind of positioning, a short stream segment is frequently used to move runoff from the fill downstream to the sediment pond. Once a valley fill is stabilized, the embankments of the sediment pond are removed, and the ponds and the stream segments are restored to their pre-project condition."

On appeal, the Corps contends that it is entitled to deference on its determination about the scope of its NEPA analysis and that its findings on individual and cumulative impacts and mitigation were not arbitrary or capricious. The agency further argues that its interpretation of its CWA regulations -- treating stream segments and sediment ponds as part of a unitary waste treatment system and thus excepting them from separate CWA § 402 permitting -- was entitled to deference. Intervenors have raised these same challenges to the district court’s ruling, but also argued that OVEC’s stream segment claim was barred in the first place under principles of res judicata [a matter already decided by the court].

The majority Appeals Court indicates that, "A complex statutory framework undergirds the regulation of valley fills and associated sediment ponds, and it is this framework that provides the foundation for our opinion." The Appeals Court says it appreciates "the statutory tightrope that the Corps walks in its permitting decisions" and rules, "The Corps, in permitting sediment ponds and accompanying stream segments under its § 404 authority, is attempting to harmonize the two statutes’ [Clean Water Act & Surface Mining Control and Reclamation Act] goals: ensuring that mining operations can proceed while maintaining the highest level of water quality possible outside of the mining area."

On the issue of "in-stream sediment ponds," the Appeals Court ruled, "Sediment ponds represent the 'best technology currently available' for the treatment of sedimentary runoff from surface mining valley fills. In fact, the regulations of the Department of the Interior’s Office of Surface Mining specifically contemplate the use of in-stream sediment ponds. 30 C.F.R. § 816.46(c) (2008). While ideally these ponds would be located immediately adjacent to the fills, the steep Appalachian terrain often does not allow this result. The topographical realities of the area make stream segments a necessary component of the construction of a waste treatment system for valley fill runoff. (See, e.g., J.A. 653.) This system, in turn, is necessary to ensure that water released from the mining area into existing streams meets CWA § 402 standards. The Appeals Court ruled "the Corps’ interpretation of its authority was reasonable in light of the CWA" and the Agency is "entitled to deference."

The dissenting minority opinion, which concurred in the parts of the majority opinion upholding the scope (or physical boundary) of the Corps’ NEPA analysis and the Corps’ interpretation of its regulatory definition of "waters of the United States,"the dissenting justice said, "In upholding the Corps’ interpretation of its obligations under § 230.11(e), the majority declines to give effect to the unambiguous requirements of the regulations. . . By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources. . ."

Earthjustice, the public interest law firm representing several of the environmental organizations in the case issued a release saying, "The ruling will permit mining companies to conduct devastating mountaintop removal coal mining operations without acting to minimize stream destruction or conducting adequate environmental reviews. As a result, Appalachia could now be facing up to 90 new mountaintop removal coal mining operations, which would destroy huge swaths of the Appalachian Mountains." Steve Roady, Earthjustice attorney said, "We believe the decision is wrong on the law and the science. This fight is not over until mountaintop removal mining is over. We will continue to litigate, and in addition, the new administration must take immediate steps to curb the terrible practice of mountaintop removal mining and undo the mistakes of the past."

Access the complete opinion and dissent (click here). Access a release from Earthjustice and link to additional information (click here). Access links to various media reports on the ruling (click here).

Friends Milwaukee v. Milwaukee Metro

Feb 13: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-1103. The Appeals Court comments on the long history of litigation on the case saying, "After over six years of litigation and two trips back and forth between the district court and this court, we are hopeful that the sun is breaking through." The case involves Friends of Milwaukee’s Rivers and Lake Michigan Federation, n/k/a Alliance for the Great Lakes (collectively, Friends), and their citizens’ suit against the Milwaukee Metropolitan Sewerage District (MMSD) under the Federal Water Pollution Control Act (the Clean Water Act or the Act), alleging that certain sanitary sewer overflows that occurred between January 1, 1995 and September 25, 2001 were violations of MMSD’s Clean Water Act permit and of the Act itself. The State of Wisconsin (the State) also filed suit against MMSD.

On May 19, 2008, the WDOJ and MMSD resolved the WDOJ’s 2005 enforcement action with a new stipulation (the 2008 Stipulation). The district court found that the 2002 Stipulation was a diligent prosecution for privity purposes, and therefore dismissed plaintiffs’ suit on res judicata grounds. Plaintiffs appealed the dismissal as well as the denial of their motions to supplement the record. The Appeals Court says, "The questions presented in this successive appeal are relatively narrow. Friends do not challenge the sufficiency of the evidence supporting the district court’s decision." The Appeals Court concludes that the, "district court was within its discretion when it found that the letter did not set forth the activities of the EPA. Moreover, even if any abuse of discretion had occurred, it would have been harmless."

Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).]

Hill v. Gould

Feb 13: In the U.S. Court of Appeals, DC Circuit, Case No. 07-5026. After winning a lawsuit against the Secretary of the Interior, Joyce M. Hill filed an application to recover her attorney’s fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412. The district court denied the application on the basis that the Secretary’s position at the merits stage was substantially justified. Hill appealed. The Appeals Court affirmed the district court denial.

The original case involved numerous charges of wrongs the mute swan species had allegedly suffered. Hill's principal claim was that the Secretary of the Interior improperly denied the species the protection of the Migratory Bird Treaty Act. The district court held that the Secretary’s List of Migratory Birds rested on "a permissible construction of the Treaty Act" and granted the Secretary’s motion for summary judgment. The DC Circuit overruled saying, "the court held that the Secretary’s exclusion of the mute swan from the protected bird list was arbitrary and capricious under the Administrative Procedure Act."

Access the complete opinion (click here).

Sierra Club v. Wagner (USDA)

Feb 6: In the U.S Court of Appeals, First Circuit, Case No. 08-1978. The Sierra Club, along with two other conservation groups including Center for Biological Diversity and Wilderness Society (Sierra Club), challenged the U.S. Department of Agriculture's (USDA's) Forest Service's approval of two forest resource management projects in the White Mountain National Forest (Forest or WMNF) -- the Than Forest Resource Management Project (Than Project) and the Batchelder Brook Vegetation Management Project (Batchelder Project). The district court decision, upheld the Forest Service.

Following adoption of a 2005 plan for the forest that included "inventoried roadless areas" (IRAs), the Forest Service proposed to allow timber harvesting of approximately 929 acres in the Than project, creating up to 231 acres of early successional habitat. The proposal would allow some existing roads to receive maintenance or reconstruction, and a 500 foot section of new road was planned. In an environmental assessment indicating certain possible adverse effects of the Than Project on the Wild River Inventoried Roadless Area -- including sediment inputs to streams, some soil disturbance, and effects on stream temperature -- the Forest Service concluded that the project would not significantly alter the character of the area or the qualities which qualified it for inclusion in the inventory. A similar finding was delivered for the Batchelder project. The groups requested a stay pending appeal which was denied by the Appeals Court, but the Appeals Court expedited the case.

The Appeals Court affirmed the district court decision and concluded, ". . . the evident intent to allow public comment on FONSI [Finding of No Significant Impact] findings seems to have been satisfied here in spades. An agency that adopts a FONSI without seeking input can be expected at least to accept comments before acting on the merits of a decision; but here both EAs were circulated in draft form and comments solicited even before any FONSI was finally adopted. Why this does not satisfy the purpose of the thirty day rule Sierra Club does not explain."

Access the complete opinion (click here).

South Coast Air Quality Management v. EPA

Feb 6: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1030. The South Coast Air Quality Management District, the Santa Barbara County Air Pollution Control District, and Friends of the Earth challenged the final rule promulgated by U.S. EPA that extended the deadline for the EPA to establish more stringent emissions standards for large marine diesel engines. The Appeals Court ruled that "EPA reasonably implemented the Clean Air Act (CAA) in extending the deadline, wherefore we deny the petitions for review."

In its conclusion the Appeals Court said, "In view of the issues remaining for the EPA to resolve before it sets Tier 2 standards, we hold the Extension Rule deferring the deadline for promulgating a regulation is neither arbitrary nor unlawful. At the oral argument the petitioners allowed that they would not be objecting to the new deadline if they could be sure the EPA would adhere to it. The EPA gives that assurance in the Extension Rule, id. at 68,520/2, and the record, which demonstrates the EPA has made progress toward promulgating Tier 2 standards, see id. at 69,522, suggests no reason to doubt it. We rely upon that assurance in holding that the Rule is lawful. In sum, because the Rule commits the EPA to proceed with the two-tiered approach approved in Bluewater Network, and to resolve outstanding issues and set standards no later than December 17, 2009, the petitions for review are denied."

Access the complete opinion (click here). Access EPA's diesel, boats and ships website for more information (click here).

USA v. Cundiff

Feb 4: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 05-5469/5905; 07-5630. The case involves an interpretation of the U.S. Supreme Court decision in Rapanos v. United States, 547 U.S. 715 (2006) and the definition of wetlands and the “waters of the United States.” By way of background, the Appeals Court explains that after eight years of failed negotiations and ignored orders, the United States sued George Rudy Cundiff (who goes by Rudy) and his son, Christopher Seth Cundiff (who goes by Seth), seeking injunctive relief and civil penalties against them for discharging “pollutants” into “waters of the United States” without a permit in violation of the Clean Water Act. 33 U.S.C. § 1362.

The district court granted summary judgment for the government, imposed injunctive relief in the form of a restoration plan for the Cundiffs’ wetlands, and imposed a civil penalty of $225,000. All but $25,000 of that penalty was suspended, however, provided that the Cundiffs implemented the restoration plan. The district court also dismissed the Cundiffs’ array of statutory, common law, and constitutional counterclaims.

The Appeals Court indicates that while the original appeal in this case was pending, the Supreme Court issued its "splintered ruling" in Rapanos, which defined the Act’s jurisdiction over “waters of the United States.” In light of Rapanos, the Appeals Court returned the case to the district court to reconsider whether jurisdiction was proper over the Cundiffs’ wetlands. According to the Appeals Court, "The district court determined that it was because the Cundiffs’ wetlands were in fact waters of the United States, and the Cundiffs appealed. We affirm the district court on all grounds."

The Appeals determined that, "the Cundiffs "actively filled the wetlands with dredged spoil and covered roughly 5.3 acres of wetlands next to about 11,900 feet of ditches", thus the Appeals Court said, ". . . they discharged a pollutant under the Act." The Cundiffs argue that their activities fall into either the farming exception, § 1344(f)(1)(A), or the drainage ditch maintenance exception, § 1344(f)(1)(C). The Appeals Court rejects those arguments, and says, "Even if the Cundiffs’ activities fell within either the farming or drainage ditch maintenance exemptions, they would still have been required to get a permit under the 'recapture provision,' 33 U.S.C. § 1344(f)(2), which states that a permit is still required whenever a dredging activity has 'as its purpose bringing an area of the navigable waters into a use to which it was not previously subject,' and the 'flow or circulation of navigable waters may be impaired or the reach of such waters reduced.'" The Appeals Court ruled, ". . . the district court properly granted summary judgment on their liability."

Access the complete opinion (click here). Access multiple postings on the WIMS-eNewsUSA blog relating to the Rapanos decision (click here). [*Water]

USA v. Hagerman

Jan 15: In the U.S. Court of Appeals, Seventh Circuit, Case No. 07-3874 and 07-3875. In this on-going legal wrangle [See WIMS 12/8/08 & 9/30/08 ] , a jury convicted Wabash Environmental Technologies (WET) and its president, Derrik Hagerman, on ten counts of making materially false statements in reports that WET was required to file under the Clean Water Act, 33 U.S.C. § 1319(c)(4). The judge sentenced Hagerman to 60 months in prison and, along with WET, was ordered to pay $237,680 in restitution to the EPA for the expense of cleaning up pollution caused by them.

Hagerman and WET now argue that the district court erred in admitting into evidence copies of certain electronic spreadsheets that recorded test results that were not charged in the indictment but were in conflict with what WET had reported. The defendants argue that the test results are evidence of prior bad acts that should have been excluded under Federal Rule of Evidence 404(b).

The Appeals Court said, "The argument has no merit. When a defendant commits two criminal acts simultaneously but is charged only with one, 'the evidence of the "other" crime [cannot] be disentangled from the evidence of the charged crime,” and
therefore evidence material to prove the charged crime 'may unavoidably reveal' other criminal acts that are not charged. United States v. Taylor, 522 F.3d 731, 734 (7th Cir. 2008). That is the situation here."

Following numerous arguments, Hagerman finally argues that he should not have been given a prison sentence. He says that the damage he caused to the environment could not be quantified, that in his life outside WET he made “considerable” contributions to his community, that his family relies on him for support, and that imprisonment will make paying restitution difficult. The judge considered but rejected these arguments. The Appeals Court said, "There was no abuse of discretion." and affirmed the decision.

Access the complete opinion (click here). [Please Note: The 7th circuit has a strange temporary web hyperlink nomenclature system. If the previous link does not work click on this link and enter the case number above (click here).]