Fourth Circuit Rules for EPA In W.Va. Toxic Waters Case

Virginia National Guard personnel assist W.Va. water collection operations. (Photo via Wikipedia Commons)

RICHMOND, Va. (CN) – The Fourth Circuit on Wednesday held that a lower court erred when it ruled the Environmental Protection Agency was not doing enough to ensure West Virginia fulfills its obligations to assess and report the toxic contamination of its waters.

The 13-page ruling by U.S. Circuit Judge Diana Motz notes that West Virginia has long resisted the requirements of the Clean Water Act.

It also explains that after environmentalists sued the EPA in 1995 to force it to compel the West Virginia’s compliance with the Act, regulators developed “total maximum daily loads” governing the  maximum daily discharge of pollutants into a body of water, and a schedule for submitting  pollution assessments to the EPA for review.

The reports set baselines to create enforceable permit limits for those doing the dumping.

In 2012, however, the West Virginia legislature decided to change how the state determines the health of its waters and opted to “postpone” the development of new TMDLs for the 573 water bodies previously identified as biologically-impaired until a new assessment strategy was developed.

The EPA and several environmental groups objected to the move, but West Virginia took no action, and in 2015, the groups, which include the Ohio Valley Environmental Coalition Inc. and Sierra Club, sued the agency, arguing it had a duty to intervene and establish TMDLs in the face of West Virginia intransience.

A lower court granted summary judgment to the plaintiffs and in doing so applied the doctrine of “construction submission” — concluding that since West Virginia had not submitted any TMDLs for the challenged waters, the EPA had not performed its nondiscretionary duty to approve or disapprove West Virginia’s “constructive submission” of no TMDLs under the earlier settlement.

The EPA appealed, challenging the lower court’s application of the constructive submission doctrine.

In ruling in favor of the agency, Motz said while many courts have recognized the validity of the constructive submission doctrine, only one published opinion has applied the doctrine to force EPA action.

“Courts therefore have declined to find a “constructive submission” of no TMDLs where a state (1) has produced at least some TMDLs and (2) has a credible plan in place to produce others. West Virginia has done both,” the opinion states.

Motz said while it may well be that the West Virginia legislature had maneuvered  to delay the development of TMDLs for biologically impaired waters, so far the steps it has taken “have not yet amounted to a constructive submission of no TMDLs as recognized by other courts.

“Continued intransigence could change that,” Motz warned. “As of now, however, we cannot conclude that West Virginia has ‘clearly and unambiguously’ refused to submit TMDLs in violation of the Clean Water Act.

“Because West Virginia has demonstrated that it is making — and will continue to make — good-faith efforts to comply with SB 562, and because West Virginia has a credible plan in concert with EPA to produce ionic toxicity TMDLs, we hold that if the constructive submission doctrine were to apply, a decision we do not reach, it would not be satisfied here,” the opinion says.

Peter Morgan, senior attorney at Sierra Club’s Environmental Law Program, said in a statement that the organization is “disappointed that the Fourth Circuit’s decision will allow West Virginia’s streams and communities to continue to suffer from coal mine pollution.

“As the Court recognized in today’s decision, ‘West Virginia has long resisted the requirements of the Clean Water Act.’ That is why we will continue our efforts to address this pollution, including by holding mine operators accountable,” Morgan said.

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