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Tennessee Clean Water Network v. Kempthorne

July 27, 2007

TENNESSEE CLEAN WATER NETWORK, ET AL., PLAINTIFFS,
v.
DIRK KEMPTHORNE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

(VARLAN/GUYTON)

MEMORANDUM OPINION

This is a civil action brought under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370(d), seeking declaratory and injunctive relief against the Office of Surface Mining, Reclamation and Enforcement (OSM). Plaintiffs challenge the adequacy of a Supplemental Environmental Analysis (SEA) conducted by OSM under NEPA. Plaintiffs also sue the National Coal Company (NCC) for breach of the Surface Mining Reclamation and Control Act (SMRCA) for construction of a sediment basin too close to a public road in an area Congress has determined is unsuitable for mining. Currently pending are motions for summary judgment of all three parties (Docs. 169, 172, and 174). For the reasons that follow, plaintiffs' motion will be denied, defendants' motions will be granted, and this action dismissed.

I. Introduction

This is the second lawsuit filed in this Court against OSM challenging actions related to this mining operation. In the first lawsuit, Save Our Cumberland Mountains, et al., v. Gale A. Norton, et al., No. 3:03-cv-462, four environmental groups challenged OSM's issuance of Permit No. 3116 to the Robert Clear Coal Corporation (RCCC) on June 30, 2003, to conduct contour, cross-ridge, and auger coal mining operations on Zeb Mountain. Plaintiffs in that case also challenged OSM's issuance of an Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI) which were issued along with Permit No. 3116. The initial mining permit issued to RCCC was transferred to NCC, a defendant in this case, on November 8, 2004, as successor-in-interest Permit No. 3154.

In a Memorandum Opinion issued on February 3, 2005, this Court granted summary judgment in favor of OSM in No. 3:03-cv-462, concluding that the issuance of Permit No. 3116, as well as the accompanying EA and FONSI, was not arbitrary, capricious, or an abuse of discretion. The United States Court of Appeals for the Sixth Circuit affirmed in an opinion filed on June 29, 2006.

While No. 3:03-cv-462 was on appeal, on April 22, 2005, the instant action was filed by five non-profit organizations, Tennessee Clean Water Network, the Sierra Club, Appalachian Voices, the Southern Appalachian Biodiversity Project, and Save Our Cumberland Mountains*fn1, who are challenging certain decisions of OSM related to Permit No. 3154 issued to NCC and claiming that NCC is in violation of SMRCA by maintaining a sediment basin too close to a public road. On October 4, 2005, this Court denied plaintiffs' motion for a preliminary injunction, upon concluding that plaintiffs were not likely to succeed on the merits of their claims. Many of the NEPA issues raised by the pending motion have been addressed in No. 3:03-cv-462, and in the earlier Memorandum Opinion in the instant case, wherein plaintiffs' motion for a preliminary injunction was denied.

II. Factual Background

On June 3, 2004, OSM issued surface mining Permit No. 3116 allowing RCCC to conduct multi-seam, cross-ridge, contour-shaping mining on 2,107 acres in Campbell County, Tennessee. The first six months of mining in what is known as the Dan Branch Watershed led to excessive sedimentation of Dan Branch. Soon after the mining began, RCCC, OSM, and the Tennessee Department of Environment and Conservation (TDEC) recognized that spoil dumped on the out-slopes in prior decades by other mining companies was sliding downhill, contributing to the excess sedimentation in the Dan Branch Watershed. AR REV. 3-0152.

On December 29, 2003, OSM required RCCC to submit a revised sediment control plan for the Dan Branch Watershed and to re-evaluate the approved drainage control plans for the remaining watersheds in the permit area. See AR REV 3-1049-1050. RCCC could continue to mine in Dan Branch pending review, but was not allowed to initiate mining in any new watershed until the drainage control plans for such new watersheds had been reevaluated and approved by OSM. Id. Also on December 29, 2003, OSM issued an Ordered Revision requiring revision of the drainage control plan for the Dan Branch Watershed and re-evaluation of the drainage control plans for the remaining watersheds in the permit area. AR REV 3-1048. OSM determined that the required revisions to the drainage control plan for Dan Branch Permit No. 3116 were considered a significant revision requiring public notice. AR REV 3-0007. Over 100 persons were in attendance at an informal conference at Cove Lake State Park on July 1, 2004. AR REV 3-0083.

On November 8, 2004, OSM approved the transfer of the mining permit from RCCC to NCC and issued Successor-in-Interest Permit No. 3154. A revised Successor-in-Interest Permit was issued December 6, 2004. NCC accepted all the liabilities and obligations of RCCC. On December 6, 2004, OSM issued a Revised Successor-in-Interest Permit No. 3154 to NCC. This Revised Permit included Special Condition 17d and a finding that the mining company was out of compliance with the mining plan, revised Successor-in-Interest Permit No. 3154, and Revised Finding. Doc. 3, Attachment 6.

On January 2, 2004, RCCC submitted an application for Revision No. 3, proposing measures to improve sediment control in Dan Branch, including sediment ponds DNB-7 (which had already been constructed to appease TDEC) and DNB-8 (also requested by TDEC to capture haul road drainage, but not yet constructed) in a rock toe buttress for slide stabilization. AR REV 3-1056-1058. At the request of the Sierra Club, OSM determined that the revision would be deemed significant under SMRCA and that public hearings would be conducted. OSM also agreed to review the original EA/FONSI and amend it if the proposed revision would result in impacts not previously considered. AR REV 3-0980-0981.

At about the time that OSM began its review of the application, TDEC ordered RCCC to implement additional drainage control measures, including sediment pond DNB-8. TDEC's order required construction of DNB-8 within 30 days, by August 19, 2004, even though OSM had not yet approved RCCC's revision application. RCCC constructed DMB-8 as ordered, before NCC took over operations at the site. OSM acknowledges that RCCC was ordered by TDEC to build DNB-8 even if it meant doing so without prior OSM approval. See SEA at III-9. AR REV 3-0076, 0084 ("... per orders of TDEC, DMB-7 and DMB-8 had already been constructed.").

Also, as part of the Director's Order and Assessment, TDEC required RCCC to implement a chemical treatment plant for solids removal. AR REV 3-1045. On May 24, 2004, TDEC approved the chemical treatment plan proposed by RCCC in response to TDEC's order. AR REV 3-0691. Revision 3 included the proposed chemical treatment plan, as required under SMRCA. See AR REV 3-0067.

On June 21, 2004, RCCC submitted to TDEC its Aquatic Resource Alteration Permit (ARAP) application for relocation of a portion of Dan Branch as proposed in Revision 3.

TDEC then began its review process of the ARAP application which OSM considered in its review of the Revision 3 application. See AR REV 3-0159 to -0165.

OSM received permits from the Department of the Interior Fish and Wildlife Service (FWS) on May 4, 2004, July 23, 2004, September 29, 2004, and October 19, 2004. OSM required RCCC to include provisions in the permit revision which would address FWS's concerns. AR REV 3-0146, -0147, -0149, -0150. On October 19, 2004, FWS informed OSM that it was satisfied that RCCC's plans for Revision 3 relating to "the Fish and Wildlife Protection and Enhancement Plan adequately address[ed] [the] concerns" of FWS.

On October 21, 2004, OSM notified RCCC that the application for Revision 3 was technically ...


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