Jackson Kelly PLLC

Energy and Environment Monitor

West Virginia Supreme Court Emphasizes Importance of DEP’s Role in SMCRA Citizen Suits

October 12, 2017

By: Robert G. McLusky

On October 5, 2017, the West Virginia Supreme Court ruled that the Wyoming County Circuit Court impermissibly substituted its own judgment for that of the West Virginia Department of Environmental Protection (“DEP”) regarding alleged mining-related contamination of residential water supplies. The Supreme Court’s order raises a number of questions regarding the extent to which citizens may pursue actions against DEP or mine operators under West Virginia’s Surface Coal Mining and Reclamation Act (“WVSCMRA”) when such actions would either side-step or usurp altogether DEP’s statutorily-granted investigatory discretion.

Background

In 2011 and again in 2013, attorneys for residents near Crany in Wyoming County, West Virginia complained to DEP that a reclaimed refuse impoundment was contaminating residential water supplies in the area. The reclaimed refuse impoundment was formerly a large pond used to store slurried fine refuse material created by separating coal from waste rock. As part of the reclamation process, the coal operator had drained the impoundment and filled it with soil or refuse to remove its impounding capacity, but still held a WVSCMRA permit for the site. Bob
In response to the citizen complaints, DEP conducted an investigation that included two water sampling inspections in 2011 and 2012 before ultimately concluded that the source of any alleged contamination was likely an old, pre-SMCRA (“pre-law” slate or refuse dump—not the reclaimed impoundment. The pre-law refuse dump consisted of a loose pile of coal refuse, ash, and slate that had been created prior to passage of the federal Surface Mine Control and Reclamation Act (“SMCRA”) in 1977. Prior to SMCRA’s enactment, it was not uncommon for large piles of refuse and waste rock to be deposited and left in an area without any grading or revegetation. Left unreclaimed and exposed to the elements, these areas can contribute metals and other minerals to surface water runoff and impact shallow residential water wells receiving some portion of their recharge from surface water. In May 2013, DEP terminated its complaint investigation after concluding that the reclaimed refuse impoundment was not responsible for any alleged contamination. The complaining citizens had a right to appeal DEP’s determination to the West Virginia Surface Mine Board, but chose not to do so.

Two years later, in May 2015, the citizens filed a third complaint with DEP, making the same allegations. Then, with DEP taking no further action on their complaints, they sued DEP in Wyoming County, claiming that DEP had a non-discretionary duty to issue an order to the coal operator requiring it to replace the citizens’ water supply. They did not sue the coal operator. The Wyoming County Circuit Court held a hearing on the Petition in December, 2015. The Circuit Court allowed one of the citizen-plaintiffs to testify as an expert witness and opine that the reclaimed refuse area was contaminating his well.  The Plaintiffs also presented a geologist and professional engineer who testified that water samples for the citizens revealed that the water is not potable; the presence of hydrogen sulfide is indicative of mining impacts; and that, while the pre-law refuse dump was undoubtedly causing some of the impact, the majority of the impact was attributable to the reclaimed refuse impoundment. 

DEP’s geologist explained that the drainage from the face of the impoundment met applicable water quality limits.  DEP found no seeps from the impoundment indicative of widespread groundwater contamination; the vast majority of the impoundment had been filled in years ago; and the movement of groundwater in the area is to the northwest—away from the residents.  Thus, DEP had no evidence that any permitted site was causing material damage to the hydrologic balance; however, water coming from the pre-law refuse dump had elevated metals flowing freely into an unnamed tributary of Crane Fork upstream of the residents.  DEP’s expert explained that the site had been referred to the Abandoned Mine Lands program, but that Mining and Reclamation had no authority to order anyone associated with the pre-law refuse dump to provide replacement water, as the site had never been permitted subsequent to the enactment of SMCRA.  DEP also argued that the citizens had failed to identify a mandatory duty that it had failed to perform.

The Wyoming County Circuit Court ordered DEP to require the permittee to provide the residents with replacement water in accordance with W.Va. Code § 22-3-24 after ruling that citizens living near mines “have an indisputable right to water replacement if there is evidence that the permitted mine contaminated their groundwater.” Dutifully adhering to the Court’s order, DEP issued a water replacement order to the permittee. The permittee appealed the water replacement order to the Surface Mine Board.  Although the evidence was overwhelmingly in the permittee’s favor, the Surface Mine Board concluded that it lacked authority to overrule a Circuit Court order.

The West Virginia Supreme Court’s Opinion

The permittee challenged the Circuit Court order in the West Virginia Supreme Court. The Supreme Court ruled in the permittee’s favor, finding that the Circuit Court exceeded its authority because the DEP has a non-discretionary duty to order water replacement only when DEP finds that a permitted mining operation is causing contamination. The Supreme Court found that the Circuit Court misidentified DEP’s non-discretionary duty.   While DEP may be required to order water replacement where the agency concludes that a mine operator has contaminated a residential water source, it does not have a non-discretionary duty to make that finding of impact in the first place:        

What the Residents overlook in their zeal to locate the necessary unfulfilled duty by the DEP is the discretion necessarily imposed upon the DEP to determine in the first instance whether there has been a violation of SMCRA, the supporting regulations, or a permit.

Opinion, p. 8.

Had the Court ended its discussion there, the opinion’s future implications may have been limited to injunction actions to force DEP to issue water replacement orders. The Court, however, went further and suggested that even in citizen suits against permittees a finding by DEP that water contamination or diminution was caused by a permittee is a prerequisite to judicial relief:

The right to institute a citizens suit under SMCRA for water replacement is premised upon a finding that the citizens’ water supply “has been affected by contamination, diminution or interruption proximately caused by the surface mining operation.” W.Va. Code § 22-3-24(b); see W.Va. Code § 22-3-24(e). In this case, the predicate finding by the DEP of contamination specifically linked to the permitted area is missing. Absent a finding of contamination by DEP, there is no statutory basis for the issuance of a notice of violation. See W.Va. Code § 22-3-17. Only if the DEP had failed to issue a notice of violation in the face of unmistakable evidence of water contamination associated with the Impoundment, could the Residents succeed on their theory that the DEP failed to perform a non­discretionary duty under SMCRA. See id. But, as the record makes clear, that was not the case here. 

*          *          *          *

Our reading of the legislative scheme at issue makes clear that a finding by the DEP of contamination, diminution, or interruption to an owner’s water supply is a prerequisite to the issuance of any water replacement relief under SMCRA. See W.Va. Code § 22-3-24.  Not only did the circuit court lack the authority to supply the requisite finding of water contamination necessary to grant any water replacement relief under SMCRA but it further lacked the authority to grant relief in mandamus predicated on the DEP’s failure to perform a non-discretionary duty.  As discussed above, the DEP had a duty to issue a notice of violation only upon its finding of a specific violation of SMCRA. See W.Va. Code § 22-3-17. But as the record reveals, the DEP never found any evidence that SMCRA had been violated by Eastern, as alleged in the Residents’ complaint. See supra note 17.

Opinion, pp. 10-11 (emphasis added).

The Supreme Court went on to hold that citizens may not simply cut DEP out of the process of enforcing WVSCMRA’s water replacement provisions:

While the enforcement of SMCRA’s water replacement rights is permitted in circuit court, we find no basis for concluding that the Legislature authorized the circuit court to usurp the DEP’s authority with regard to making the pivotal finding of “contamination, diminution or interruption to an owner’s water supply.” W.Va. Code §22-3-24 (b), (c). The integral involvement of the DEP both with regard to making that necessary initial finding and then with regard to overseeing the water replacement supply during the two-year period prescribed by statute is clear. See, e.g., W.Va. Code § 22-3-24(h) (discussing DEP director’s authority regarding discontinuation of water replacement service).

Op., p. 11, fn. 18. Thus, the Court seems to have ruled that a finding by DEP in favor of a complainant is a prerequisite to an action to enforce the water replacement obligations of the WVSCMRA against the mine operator as well as against DEP.

As a practical matter, this could force citizens whose water complaints are rejected by DEP to appeal those rejections to the Surface Mine Board. Additionally, the ruling raises questions about the future of citizen suits to enforce WVSCMRA performance standards. Unresolved, for instance, is whether a citizen suit to enforce any performance standard against either DEP or an operator depends on a prior finding of a violation by DEP or whether the ruling is limited to the water replacement provisions of the WVSCMRA. A copy of the opinion is available here. http://www.courtswv.gov/supreme-court/docs/fall2017/17-0148.pdf.

This article was authored by Robert G. McLusky, Jackson Kelly PLLC.

 

© 2018 Jackson Kelly PLLC. All Rights Reserved.