Petersen, Tonn

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University of Denver

Water Law Review Volume 8 Issue 1 Article 30 9-1-2004 Ohio Valley Envtl. Coalition v. Bulen, 315 F. Supp. 2d 821 (S.D.W.Va. 2004) Tonn Petersen Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Tonn Petersen, Court Report, Ohio Valley Envtl. Coalition v. Bulen, 315 F. Supp. 2d 821 (S.D.W.Va. 2004), 8 U. Denv. Water L. Rev. 259 (2004). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSEPA approved the new standard. The WVRC claimed the approval ofthe new standard was arbitrary and capricious, because the new stan-dard allowed the state discretion in determining when to compel addi-tional studies before changing a site-specific water quality rule. Sincethe new standard incorporated all of the EPA's recommendations, thecourt ruled that the approval was not arbitrary and capricious.The last WQS challenged by the WVRC relate to measurementtechniques used when pollutant concentrations drop below the Practi-cal Quantification Level ("PQL"), defined as the lowest level detectableby current monitoring methods. West Virginia initially submitted pro-cedures to extrapolate pollutant levels below the PQL. One of themethods used the measurement of pollutant levels in fish. The EPArejected this standard fearing that the alternate measurement standardusing pollutant levels in fish may be a separate standard. Subsequently,the EPA approved a revised proposal by West Virginia, which did notinclude measurements of pollutants in fish. The court allowed theapproval of the revised standard, because indirect measurements arethe only method to detect pollutant levels below the PQL.The court refused to issue a declaratory judgment ordering theEPA to institute WQSs for manganese and iron. The EPA initially re-jected West Virginia's proposed WQSs, and the State failed to proposerevised WQSs, as required by the Clean Water Act. The court foundthe issue moot given that the EPA approved the West Virginia stan-dards after this action commenced, no reasonable likelihood existedthat the harm would recur, and a declaratory judgment would notmake the WVRC whole. Finally, the court granted the WVRC's requestto file for attorney's fees because the CWA specifically provides forsuch actions.In conclusion, the court granted summary judgment on theWVRC's claim that the EPA's actions were arbitrary and capriciouswhen it failed to consider the effect of 3-methyl-4-chlorophenol onhumans and fish when approving a WQS. However, the court ruledthe EPA was not arbitrary and capricious when relying on reasonedscientific opinions when approving the other WQSs. Also, the courtdismissed claims requesting a declaratory judgment to force the EPA toenact statutorily mandated WQSs enacted after filing of the suit butbefore the final decision.David B. OakleyOhio Valley Envtl. Coalition v. Bulen, 315 F. Supp. 2d 821 (S.D.W.Va.2004) (holding illegal segmentation occurred when a coal companysubmitted plans for a smaller waste disposal project that operated onlyto facilitate approval of a larger disposal project).Ohio Valley Environmental Coalition ("OVEC") sought a prelimi-nary injunction against the United States Army Corps of EngineersIssue IWATER LA W REVIEW("Corps") in the United States District Court for the Southern Districtof West Virginia claiming that the Corps approved an illegally seg-mented disposal project. OVEC alleged that the Corps failed to com-ply with Section 404(a) of the Clean Water Act ("Act") when it granteda permit to Green Valley Coal Company ("Green Valley") to place fillmaterials into a stream because Green Valley submitted the same miti-gation plan for both that project and a larger project. Green Valleycontended that even though both mitigation plans were the same, thesmaller project had independent utility and it therefore was not anillegal segmentation. The court rejected Green Valley's argument andgranted the preliminary injunction.Green Valley submitted a proposal known as Incidental BoundaryRevision ("IBR") to the Corps requesting permission to dispose of coalrefuse into Hominy Creek under Section 404(a) of the Act. Whileawaiting approval of the TBR, Green Valley sought approval for asmaller project, known as Revision 5, to place fill material into 431 lin-ear feet of an unnamed tributary of Hominy Creek. The area of land ofRevision 5 existed entirely within the proposed boundaries of the IBR.As part of its application for Revision 5, and pursuant to statutory re-quirements, Green Valley planned to divert 8,000 feet of HominyCreek to "mitigate" the destruction of the unnamed tributary. OVECrequested a preliminary injunction, arguing that Revision 5 equated tonothing more than a segmentation of the IBR. OVEC further arguedthat the diversion of 8,000 feet of water meant to "mitigate" the effectsof Revision 5 acted to unduly influence the Corp's decision to grantthe IBR as Green Valley, in obtaining approval of Revision 5, overcamethe most significant obstacle in obtaining approval of the IBR, estab-lishing the existence of the diversion.The court considered four factors in determining whether to grantthe preliminary injunction: (1) the likelihood of irreparable harm toGreen Valley if the preliminary injunction was denied; (2) the likeli-hood of harm to OVEC if the requested relief was granted; (3) the like-lihood that Green Valley would succeed on the merits; and (4) thepublic interest. The court held that OVEC would likely suffer greaterharm, since once the tributary was filled, it would be gone forever andresulting in the diversion of a significant portion of Hominy Creekfrom its course. The court further held that Green Valley would likelysucceed in proving that Revision 5 constituted an illegal segmentationof the proposed IBR. The court noted the administrative recordshowed that the original IBR mitigation plan was identical to the newlyproposed Revision 5 plan. In fact, Green Valley's application for Revi-sion 5 relied exclusively on documents originally prepared in connec-tion with the IBR. The court found that the plan to mitigate the de-struction of 431 feet of a stream's small tributary by diverting 8,000cubic feet of the stream itself was, therefore, proposed simply to clearthe way for the approval of the IBR. Finally, the court found that theVolume 8COURT REPORTSpublic had interests in the integrity of the waters of the United Statesand in requiring that administrative agencies abide by their own regu-lations. Thus, the court ruled that the Corps approval of Revision 5contradicted the law and granted OVEC's motion for preliminary in-junction.Tonn PetersenOhio Valley Envtl. Coalition v. Bulen, 2004 U.S. Dist. LEXIS 16078(S.D.W.Va. Aug. 13, 2004) (supplementing the initial order suspend-ing all existing Nationwide Permit 21 authorizations for valley fills andsurface impoundments for projects not already under construction asofJuly 8, 2004).The United States Army Corps of Engineers ("Corps") issued anumber of authorizations to Green Valley Coal Company ("Green Val-ley") under Nationwide Permit ("NWP") 21 dating back to March,2002. On October 23, 2003, the Ohio Valley Environmental Coalition("Coalition") brought suit against the Corps, alleging the NWP 21 au-thorizations did not comply with section 404 of the Clean Water Act("CWA") and asking for a preliminary injunction. The United StatesDistrict Court for the Southern District of West Virginia enjoined theCorps from authorizing Green Valley to proceed with Green Valley'sprojects. One projects included a plan called Revision 5, which poten-tially affected only 431 feet of an unnamed tributary of Blue Branch.However, the mitigation plan required the diversion of 8000 feet ofBlue Branch.On July 8, 2004, the court granted summary judgment in favor ofthe Coalition and prohibited new or expanded fills at the challengedmining operations where construction had not begun as of the date ofthe decision. In the present case, the Coalition asked the court's per-mission to file a supplemental complaint enumerating the six addi-tional NWP 21 authorizations and requested that the court clarify theCorps' permanent injunction of Revision 5 under NWP 21.Even though the Coalition lacked justification for failing to bringall NWP 21 authorizations in the initial challenge, the court amendedthe original order to include the suspension of all existing NWP 21authorizations for valley fills and surface impoundments where con-struction had not begun prior to July 8, 2004. The court noted thatalthough it could have required the Coalition to file another suit, twofactors dissuaded the court from making that ruling. First, the courtfound requiring the Coalition to go through the needless formalityand expense of instituting a new lawsuit, when events occurring afterthe original filing indicated the Coalition had a right to relief, wentagainst the philosophy of the federal rules. Second, the court was notinclined to allow discharges into waters of the United States pursuantto unlawful permits simply because they were brought to the court'sIssue I

Ohio Valley Envtl. Coalition v. Bulen, 315 F. Supp. 2d 821 (S.D.W.Va. 2004)

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Ohio Valley Envtl. Coalition v. Bulen, 315 F. Supp. 2d 821 (S.D.W.Va. 2004)

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