Argued October 8, 2013.
Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 6:11-cv-00148--Gregory F. Van Tatenhove, District Judge.
Benjamin A. Luckett,
APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Appellant.
Robert G. McLusky, JACKSON KELLY, PLLC, Charleston, West Virginia, for Appellee.
Benjamin A. Luckett, Joseph M. Lovett APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, Stephen A. Sanders, APPALACHIAN CITIZENS LAW CENTER, Whitesburg, Kentucky, for Appellant.
Robert G. McLusky, JACKSON KELLY, PLLC, Charleston, West Virginia, Kevin M. McGuire, Laura P. Hoffman, JACKSON KELLY, PLLC, Lexington, Kentucky, for Appellee.
Karma B. Brown, HUNTON & WILLIAMS LLP, Washington, D.C., for Amicus Curiae.
Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges. GIBBONS, J., delivered the opinion of the court in which McKEAGUE, J., joined. MERRITT, J. (pp. 16-18), delivered a separate dissenting opinion.
JULIA SMITH GIBBONS, Circuit Judge.
This case, a citizen enforcement action under the Clean Water Act, requires consideration of the scope of the Act's " permit shield" in the context of a general discharge permit. ICG Hazard, LLC, operating under a general permit, conducted surface coal mining in Kentucky. The company discharged selenium, a pollutant, into surrounding water. Although the permit did not specify effluent limitations for selenium, the discharge resulted in levels exceeding the threshold in the state's water quality standard. The district court, finding that the permit shield protected ICG from liability, granted summary judgment in ICG's favor. Through our analysis of the permit shield's application in the context of a general permit, we also conclude that the permit shield covers ICG's discharges in this case. We therefore affirm.
ICG Hazard operates the Thunder Ridge surface coal mine in Leslie County, Kentucky. During the relevant time period, ICG's running of Thunder Ridge was governed by a five-year Coal General Permit issued by the Kentucky Division of Water (" KDOW" ) pursuant to the National Pollutant Discharge Elimination System (" NPDES" ) under the authority of the
U.S. Environmental Protection Agency. The general permit allowed ICG and certain other coal mining operations to discharge certain listed pollutants into the state's water, within the conditions set out in the permit. The conditions included effluent limitations for several specific pollutants, but not for selenium, a naturally occurring element that endangers aquatic life once it reaches a certain concentration. But KDOW was aware of the potential for selenium discharges from the mines in the area. The general permit included a provision recognizing that possibility. KDOW used " one-time" monitoring--a single sampling during the five-year life of the permit--to determine whether selenium levels in surrounding bodies of water were within acceptable levels.
In August 2009, seeking to expand the reach of its surface coal mining at Thunder Ridge, ICG applied to KDOW to modify its coverage under the general permit. The renewal process required ICG to submit water samples from an existing discharge point. The samples showed that the selenium in the surrounding water exceeded the " acute" limit in Kentucky's water quality standards. Those standards set the acute limit at twenty micrograms per liter.
In December 2010, Sierra Club notified ICG of its intent to bring a citizen suit based on the selenium levels. Sierra Club also supported a private citizen's request for further testing. These further tests took place at six locations around Thunder Ridge. None of the tests revealed selenium levels above the acute limit. However, at two of the six sites, the levels exceeded the " chronic" limit of five micrograms per liter. Consequently, the Kentucky Department of Natural Resources (" KDNR" ) took a " preventive enforcement action," requiring ICG to test for selenium in the second quarter of 2011 and submit the results to KDNR. The U.S. Office of Surface Mining deemed KDNR's response appropriate and notified Sierra Club that it would therefore take no further action.
Sierra Club brought this action in the Eastern District of Kentucky, alleging that ICG's discharges of selenium violated the Federal Water Pollution Control Act (" Clean Water Act" or " CWA" ), 33 U.S.C. § 1251 et seq., and the Surface Mining Control and Reclamation Act (" Surface Mining Act" ), 30 U.S.C. § 1201 et seq., and seeking declaratory judgment, injunctive relief, and civil penalties. The district court awarded summary judgment in ICG's favor on all claims. Sierra Club v. ICG Hazard, LLC, Civ. No. 11-148, 2012 WL 4601012 (E.D. Ky. Sept. 28, 2012). It determined that the Clean Water Act's permit shield protected ICG from liability under the Clean Water Act. Id. The court held that, because the general permit did not set limits for selenium discharges, ICG could lawfully discharge provided it made proper disclosures. Id. at *6-9. As a result, ICG was also protected from liability for violation of Kentucky water quality standards under the Surface Mining Act; otherwise, the district court reasoned, the water quality standards would " supersede" the permit shield. Id. at *14.
On appeal, Sierra Club argues that the district court erred in finding that the permit shield applies. In Sierra Club's view, the permit shield does not apply because the discharge of selenium was neither expressly authorized by the general permit nor reasonably contemplated by KDOW when it issued the permit. Sierra Club further contends that the Surface Mining Act and the CWA are complementary regulatory schemes, and so holding ICG liable under the Surface Mining Act would not conflict with the CWA.
We review a district court's grant of summary judgment de novo.
Keith v. Cnty. of Oakland, 703 F.3d 918, 923 (6th Cir. 2013). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a), (c). The initial burden of showing the absence of a genuine issue of material fact is on the moving party. Bridgeport Music Grp., Inc. v. VM Music Corp., 508 F.3d 394, 397 (6th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). We construe all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To support a genuine dispute, the non-moving party cannot rely on " the mere existence of a scintilla of evidence," and " must do more than simply show that there is some metaphysical doubt as to the material facts." White v. Baxter Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008) (internal quotation marks omitted).
The Clean Water Act " 'is a comprehensive water quality statute designed to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 469-70 (6th Cir. 2008) (quoting PUD No. 1 of Jefferson Cnty. v. Wash. Dep't of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994)). The CWA seeks to achieve these goals through two principal mechanisms. First, it limits the discharge of pollutants through " a default regime of strict liability." Piney Run Preservation Ass'n v. Cnty. Comm'rs of Carroll Cnty., 268 F.3d 255, 268-69 (4th Cir. 2001). The focal point of the regime is section 301 of the CWA, which provides that " the discharge of any pollutant by any person shall be unlawful," unless it falls within certain narrowly prescribed exceptions. 33 U.S.C. § 1311(a). The main exception to this blanket prohibition is the NPDES, contained in section 402 of the CWA, which provides for the issuance of permits allowing the discharge of pollutants within prescribed limits. 33 U.S.C. § 1342. See Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1374, 186 U.S.App.D.C. 147 (D.C. Cir. 1977) (" [T]he legislative history makes clear that Congress intended the NPDES permit to be the only means by which a discharger from a point source may escape the total prohibition of [§ ] 301(a)." ). Second, section 303 of the CWA " requires each State, subject to federal approval, to institute comprehensive water quality standards, establishing water quality goals for all intrastate waters." PUD No. 1 of Jefferson Cnty., 511 U.S. at 704 (citing 33 U.S.C. § § 1311, 1314). These standards " provide a supplementary basis . . . so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels." Ky. Waterways Alliance, 540 F.3d at 470-71 (quoting PUD No. 1 of Jefferson Cnty., 511 U.S. at 703).
Our focus here is on the CWA's first mechanism: the NPDES's permitting scheme. Under the NPDES, the permitting authority may issue a fixed-term permit allowing a point-source discharger to discharge specific pollutants--set out in the permit--subject to limitations on " the quantities, rates, and concentrations" of the specific pollutants being discharged. Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992); see 33 U.S.C. § 1342. A state may establish its own permitting authority which, once authorized by the EPA, is then ...