Fourth Circuit Upholds State Mining Program Definition of "Material Damage"

The following is an excellent exegesis by Jason Bostic of the West Virginia Coal Association of a recent decision by the Fourth Circuit approving the West Virginia definition of "material damage to the hydrologic balance." Environmental groups had challenged the West Virginia definition because they felt it made the West Virginia program less stringent than the federal program. A US District Court disagreed, and the 4th Circuit affirmed the District Court.  Jason explains what happened.

The Fourth Circuit decision he is referring to can be found here.  The Office of Surface Mining approval from 2008 is here.

The U.S. Court of Appeals for the Fourth Circuit has issued a favorable decision affirming certain revision to West Virginia’s surface mining regulatory program.  The changes concern W.Va.’s rules governing cumulative hydrologic impact assessments and thresholds for determining when “material damage to the hydrologic balance” has occurred.  The decision  provides the West Virginia Department of Environmental Protection (WV DEP) with a much better regulatory tool for determining when a mining related discharge/activity has caused “material damage to hydrologic balance” and (hopefully) resolves a 10-year regulatory and legal controversy related to those changes.  The Coal Association supported the proposed revisions at the Legislature and in three separate federal public comment periods established by the federal Office of Surface Mining (OSM).   The Association was also an intervenor-defendant in several rounds of federal litigation involving OSM’s consideration and approval of the proposed amendment, including this latest appeal to the Fourth Circuit.   

Under the previous language of the W.Va. program, any isolated or minor violation of Clean Water Act (CWA) NPDES effluent standards could be considered “material damage”.  The revisions at issue link “material damage” to “any long term or permanent change in the hydrologic balance…which has a significant adverse impact on the capability of the affected water resources to support existing conditions and uses.”  The new definition makes it clear that single, isolated and/or minor exceedences of effluent limits which do not affect the capability of the affected stream or water body to meet its state CWA designated use (aquatic life, trout stream, public drinking water supply, etc) DO NOT constitute “material damage” under W.Va.’s approved mining regulatory program and the state surface mining law.

History of the Amendments and Litigation

W.Va. first proposed revising its cumulative impact and material damage regulations in 2000.  The West Virginia Legislature approved the revisions in 2001 and they were submitted to OSM for approval.  OSM approved the revisions in December 2003.  OVEC and other anti-mining groups sued OSM in the U.S. District Court for the Southern District of West Virginia over the federal agency’s approval of the W.Va. revisions.  In September 2005 Judge Chambers vacated OSM’s approval of the two revisions on largely rulemaking procedural issues such as the federal agency’s lack of an explanation as to how the changes would affect the stringency of the state program versus a straight analysis of whether the revisions complied with the minimum requirements established by the federal Surface Mining Control & Reclamation Act (SMCRA).  OSM appealed that decision to the Fourth Circuit and in 2006 the

Appeals Court

affirmed Judge Chamber’s ruling of 2005.   

Following the Fourth Circuit’s decision, in March 2007 WV DEP resubmitted the two amendments to OSM with further documentation and analysis to better justify the changes.  Following of a year of dialogue and further exchange of information and documents between WV DEP and the Charleston Field Office of OSM, the revisions were referred to OSM’s Appalachian Region for a final decision.  Despite the rulings of Judge Chambers and the

Appeals Court

, WV DEP, based on resubmission of the amendments, never deleted the language at issue from its mining regulatory program so no further rulemaking from the state is necessary to implement the now approved changes. 

On December 24, 2008, OSM again approved the revisions to the W.Va. program concerning material damage (December 24, 2008 Federal Register Notice is attached).  In February 2009 OVEC yet again challenged the federal approval of the amendments, this time alleging the new definition of material damage altered the regulation and permitting of coal mining operations in contravention of the CWA and in violation of SMCRA’s mandate that “nothing in this act shall be construed as superseding, amending, modifying or repealing the CWA...”  The U.S. District Court for the Southern District of West Virginia (Judge Chambers) issued a decision on January 3, 2011 affirming OSM approval of the proposed amendments.  OVEC again appealed Judge Chambers’ decision to the Fourth Circuit and the decision issued today should resolve the litigation surrounding the revisions to the W.Va. mining regulatory program concerning material damage. 

Detail and Description of the Program Amendments

1.  Deletion of the definition of “Cumulative Impact” at 38 CSR 2.2.39: 

Cumulative impact means the hydrologic impact that results from the accumulation of flows from all coal mining sites to common channels or aquifers in a cumulative impact area.  Individual mines within a given cumulative impact area may be in full compliance with effluent standards and all other regulatory requirements, but as a result of co-mingling of their off-site flows, there is a cumulative impact.  The Act does not prohibit cumulative impacts but does emphasize that they be minimized.  When the magnitude of cumulative impacts exceeds threshold limits or ranges as predetermined by the Department, they constitute material damage. 

The state’s motivation to delete the above definition came in large part from the sentence referencing “threshold limits or ranges”.  These terms were not defined in the mining regulations and where open to wide interpretations ranging from violations of individual effluent limitations to arbitrary interpretations from individual permit reviewers.  Further, the deleted definition recited above references exceedences that occur as a result of the cumulative discharge of multiple operations and outlets and could be viewed as ignoring the individual discharges of a given operation or group of outlets. 

2.  Adding the definition of “Material Damage” to the existing regulation at 38 CSR 2.3.22.e: 

            Existing Language of 38 CSR 2.3.22.e:

           

The Director shall perform a separate CHIA [cumulative hydrologic impact assessment] for the cumulative impact area of each permit application.  This evaluation shall be sufficient to determine whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. 

Newly approved definition of Material Damage added to 38 CSR 2.3.22.e:

Material damage to the hydrologic balance outside the permit area means any long term or permanent change in the hydrologic balance caused by surface mining operation(s) which has a significant adverse impact on the capability of the affected water resource(s) to support existing conditions and uses.