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1 PUBLISHED UNITED STATES COURT OF APPEA
PUBLISHED UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT No. AMERICAN FOREST AND PAPER ASSOCIATION; AMERICAN PETROLEUM INSTITUTE; NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES; NATIONAL ASSOCIATION OF HOME BUILDERS; NATIONAL ASSOCIATION NG ASSOCIATION; UTILITY WATER Appeal from the United States District Court for the D United States District Judge for the Eastern District of Affirmed by published opinion. Judge Motz wrote the owhich Judge 2 Michael Shane Harvey, JACKSON KELLY PLLC, Charleston, West Virginia, for Appellant. Joseph Mark Lovett, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Appellees. rleston, West Virginia, for Amici The

2 State of West ON BRIEF:Robert G. McLusk
State of West ON BRIEF:Robert G. McLusky, Jennifer L. Hughes, JACKSON KELLY PLLC, Charleston, West Virginia, for Appellant. West Virginia; James M. Hecker, PUBLIC JUSTICE, Washington, R. Levey, Kristy Bulleit, HUNTON & WILLIAMS LLP, Washington, Washington, D.C.; Tom Ward, NATIONAL ASSOCIATION OF HOME Association and Utility Water Act Group. John C. Cruden, Morrisey, Attorney General, Elbert Lin, Solicitor General, Erica ston, West Virginia; Kristin West Virginia and West Virginia Department of ��3 &#x/MCI; 0 ;&#x/MCI; 0 ;DIANA GRIBBON MOTZ, Circuit Judge: &#x/MCI; 1 ;&#x/MCI; 1 ; Several environmental groups brought this action against

3 a and seeking appropriate injunctive re
a and seeking appropriate injunctive relief. After a trial, the district court found that the company had indeed violated the Act and ordered it to take corrective measures. The company appeals, asserting that its with the conditions of its permitdoesordered appropriate remedial measureswe 33 U.S.C. §(2012) 4 limits reflect applicable water quality standards33 numerical or narrative,40 C.F.R. § 131.3(2016), and receives approval from the Environmental Protection Agency (can approve any substantive changes to a state1981, received EPA approval to own permit programand has done so ever since These includea series of regulations governing W.Va. Code R. §(201(genera

4 l NPDES regulations),with W. Va. Code R.
l NPDES regulations),with W. Va. Code R. Coal Company, LLCWest Virginia coal mine permit to discharge into Stillhouse Branch, of Twentymile Creek and a waterway adjacent to Fola’s surface mining facilityin central West Virginia ��5 &#x/MCI; 0 ;&#x/MCI; 0 ;for and received NPDES n March 13, 2013, e environmental groupsConservancy, and Sierra Club (collectively “this actionunder the Clean Water Act’s citizen suit provision, 33 U.S.C. §The Coalitionallegin The discharge or discharges covered by a WV/NPDES to cause quality standards. Specifically, the Coalition’s dischargestwo narrative water quality standardsFol ( , Fola pointed

5 ��6 &#x/MCI; 0 ;&#x/
��6 &#x/MCI; 0 ;&#x/MCI; 0 ;applied for the 2009 renewal permitAt that time, highly conductive. this disclosure,he West Virginia Department of Environmental Protectionnot Fola to limit the even if that conductivity resulted in a violation of water quality standardsexpressly set out in its permit, the permit shieldo gain support for viewnew West Virginia lawenacted a year earlier,involving the permit shieldlawthatNotwithstanding any rule or permit condition to the compliance with a permit issued pursuant to this article shall be deemed compliance for purposes of, in its view,legislationsubstantively change ’s consistent ��7 &#x/M

6 CI; 0 ;&#x/MCI; 0 ;interpretatio
CI; 0 ;&#x/MCI; 0 ;interpretation of the permit shield. Under this assertedly consistent view, a permit holder need only disclose its discharges of effluents to WVDEP and comply withthis, according attempted to removefrom 5.1.f the language 5.1.f coal NPDES permittees to meet water quality Response to Comments, 47 CSR 30, Nonetheless, WVDEP opined thatof the language from 5.1.f “does nothing more than make [state law] consistent with” the Clean Water Actaccording to WVDEP WVDEP’s n a series of letters to explained its concerns that the elimination of water quality standards languagecould cause state law ��8 &#x/MCI; 0 ;&#x/MCI

7 ; 0 ;to conflict with federal law we
; 0 ;to conflict with federal law weaken the stateWVDEP’sdid not assuage EPA’s concernsFola’s permit. In 2015, the West Legislature nothersimilar to SBpermit holdersof SB 615 legislative outlined above, Fola urged the district court to holdpermit provision water quality quality violationsthe effluents it discharged fell the numerical levels allowed in its permita bench trialthe district court consideredconstituted an enforceable permit provision that required Fola ��9 &#x/MCI; 0 ;&#x/MCI; 0 ;to refrain from violating West Virginia’s water quality und that mine drainage like that which Fola the Ohio Valley Envtl. Coalition,

8 , 82 F. Supp. 3d 673, 686W. Va. hese i
, 82 F. Supp. 3d 673, 686W. Va. hese ions are measured by conductivity, at 687, and increased at 696 in Stillhouse Branchined and the court found, sensitive insect species The decrease in diversity caused a decrease in the score on the West Virginia Stream Condition Index In order to extract coal, Fola blasted rock and dumped it Effects of Mountaintop Coal Mining Conditions Using Family-and Genus-Level Macroinvertebrate Bioassessment ToolsogicalSoc’y 717, 718 (2008) (explaining surface coal mining). The minerals in the How Many Mountains Can We Mine?Assessing the Regional Degradation of Central Appalachian Rivers by Surface Coal Mining

9 10 Ind2 WVDEPto measure the health Stil
10 Ind2 WVDEPto measure the health Stillhouse Branch had µ, it is more likely than not that” the Index biologically impaired.”at 687EPABased Aquatic Life Benchmark for Conductivity in Central Appalachian Streams (Final Report)-, at A(2011) amples from Stillhouse Branch reported conductivity that was 98. found Fola’s mining increased conductivity in Stillhouse Branch and that“high conductivity in downstream a significant adverse impact to the chemical ogical components of the stream’s aquatic ecosystemsin A Stream Condition Index for West Virginia Wadeable Streams /Documents/WVSCI.pdf 11 violation of the West Virginia na

10 rrative water quality standards With re
rrative water quality standards With respect to remedy, tdistrict , at Fola’s Coalitionproposed remedy as too Instead, the courtappointed a Special Master of less burdensome 268 F.3d 255, district courtrests on interpretation of Fola’s NPDES interpretation constitutes a legal question, which to the extent thatjudgment rests on factual findings made after a bench trialrse only if those findings are clearly erroneous. II.Fola principally contends misinterpreted expressly acknowledges that its permit “incorporates” 5.1.f. Reply Br. at 3.admits that “permit holders are not at 1. And 12 quality standardsthose found in 3.2.e and 3.2.argumentcont

11 rols the conduct ofthe state and imposes
rols the conduct ofthe state and imposes no requirements on the First, intains that 5.1.f is ambiguous inta regulation of the permitting y, not the permit holderthe district court failed to examine “extrwhich eliminates any ambiguity and demonstrates that 5.1.f imposes obligations only on the permitting authority A. examine the language of Fola’s permitPiney he language[of a permit]is plain and capable of FDIC v. Prince George Corp. ��13 &#x/MCI; 0 ;&#x/MCI; 0 ;Contrary to Fola’s 5.1.fof the The provision prohibits “dischargescovered bythe permit from violating that generates “discharges covered by” the permit. Th

12 us, the rewrite 5.1.f substantially to r
us, the rewrite 5.1.f substantially to read it as imposing obligations indicates it applies to Fola, the permitholder, not WVDEP, the agency provisions further support For example, if 5.1.f imposed requirements on the state , it would more naturally read: “The discharge or discharges covered by a WV/NPDES permit are to be regulated by the Department of Protectionas not to cause violation of applicable water quality standards adopted by , Title 47, Series 2.” Notably, these changes would require both insertions and 14 of the section states, “permittee with all conditions of a WV/NPDES permit.” SeeW. Va. Code R. § section

13 then listsseveralviolate the permit sep
then listsseveralviolate the permit separate and apart fromviolations ofFor example, under this section, a or knowingly renders inaccurate any monitoring device or permit holderit certification in any record or other document submitted or 5.1.e. seems unlikely that immediatelyfollowing these clear in a subsection specifically permit holders, the drafters inserted agency. sid§ 47-, if 5.1.f does not obligate the permit holder in any way. ��15 &#x/MCI; 0 ;&#x/MCI; 0 ;Accordingly, the district court’s conclusion that 5.1.f unambiguously regulates permit holders seems entirely warranted.&#x/MCI; 7 ;&#x/MCI; 7 ;4&#x/MCI; 8 ;&#x/MCI

14 ; 8 ; &#x/MCI; 1 ;&#x/MCI; 1
; 8 ; &#x/MCI; 1 ;&#x/MCI; 1 ;B. &#x/MCI; 2 ;&#x/MCI; 2 ;Furthermore, rather than supporting Fola’s interpretation, all relevant extrinsic evidence points to the conclusion that 5.1.f imposes obligations onthe permit, not the state to the contrary almost entirely Legislature’s 2013 and 2015 amendments and WVDstatements certainly evince West Virginia’s present cease enforcement of water quality standards against But neither WVDEP’s current interpretation nor the egislature’s actions in amending state law in 2013 and 2015 4 Fola contends that the district the effluent limits in the permit superfluous. But b

15 y Fola’s ownadmission, the effluent
y Fola’s ownadmission, the effluent limits do notdelineate allthe discharges disclosed to the regulating agency. 5.1.f captures those discharges, not explicitly regulated by e 16 And Fola is simply wrong in contendingthat “[here is no evidence that West Virginia everintended” to hold permit (emphasis added)Fola has provided evidence that the Legislature lacked this intent 1, two years after the issuance of Fola’s current parent company based on violations of the exact water quality standards at issue here as incorporated into the NPDES permit States v. Consol Energy, No. 0028 , ECF No. 6And Fola’s parent company agreed Consol Energy.D. W. Va.

16 Jun. 15, interpreted 5.1.f to require c
Jun. 15, interpreted 5.1.f to require coal companies NPDES Comments, at 1. This was amend 5.1.f. rulemaking in which 5.1.f was added to West Virginia’s NPDES ��17 &#x/MCI; 0 ;&#x/MCI; 0 ;program, EPA stated that the new rules would not alter any “substantive rights or obligations.” Revision of West ver Coal Mines and Coal Preparation Plants rom the West Virginia Department of Natural ResourcesDivision of Water Resources to Its Divisioof Reclamation, 50 F2996, 2997(Jan. 23, 1985). 1984 West VirginiaWest Virginia Surface Mining Reclamation Regulations, lity standards.”)At that time, the surface subject to enforcement actions

17 for violating effluent limitations Pre
for violating effluent limitations Preamble to Proposed Regulations Consolidating the Article 5A and Article 6 Program (filed Nov. tions governing NPDES permitsfor coal mines thereafter include 18 that were previouslyfound in the surface connew regulations did alter “substantive rights or obligationse new regulations alter aobligations simply brought existing obligations on surface coal had no reason conclude that the consolidated Moreover, although ignored by Fola,as to the when interpreting similar water quality authoritative amicus brief pointing this out and reiterating its ��19 &#x/MCI; 0 ;&#x/MCI; 0 ;standards like those in Fola’

18 ;s permit.&#x/MCI; 7 ;&#x/MCI; 7
;s permit.&#x/MCI; 7 ;&#x/MCI; 7 ;5&#x/MCI; 8 ;&#x/MCI; 8 ; That water quality against NPDES permit holdersse obligations on permit the district court’s constitutes, as it has for decades, a regulation permit holde, not the Fola argues that our holding in Piney Run this conclusion. According to Fola, permitting agency and thereafter comply with the effluent limits , EPA NPDES Permit No. NH0100099 for the Town of Hanover, New Hampshire, I.A.2, .3 and .6, https://www3.epa; EPA ity standards provisions when, as here, the NPDES permit incorporates these standards. Nat. Res. Def. 1205 (9th Cir. 2013); F.3d 979, 985(9th Cir. 199

19 5); Metro. Water Reclamation Dist. of G
5); Metro. Water Reclamation Dist. of Greater Chicago (N.D. Ill. 2016). In support of its contrary view, Fola relies on inapposite 20 s are shielded from liability” under the Appellantits discharges and has complied with the effluent limits First, and most fundamentally, Fola mies our holding . We expressly held that a permit shields as long asthe permit holder with the express termsand with the Clean Act’s disclosure requirements.” Piney Run, 268 F.3d at (emphasis added). 6 Fola ignores the emphasized language and this approach. Fola attempts to bolsterits misunderstanding of by misinterpreting the careful examination of the history of the Clea

20 n Water Act we set forth in that case.
n Water Act we set forth in that case. We recognized that requirementpermit holdersmeet water Of course, to obtain the benefits of the permit shield a the effluent limitations for that pollutant as listed in the Piney Runat 259. That requirement is not at issue her 21 quality standards had been the primary means of federal at 264. The Act provided regulators with another tool “direct limitations on the discharge ofpollutants” in the form of numerical caps on those discharges and a means to regulate NPDES permits. Inc.v.Gaston Copper Recycling Corp. Cir. 2000) , weained that adherence to its permit shielded a permit holder from liab

21 ility under the Act. Id. But , we not
ility under the Act. Id. But , we noted thatspite the Clean Water discharge of pollutants, water quality standards still have an important role in regulatory scheme Id. Compounding its error, Fola refuses to recognize that Piney involved very different issues than those presented here. In Piney Run water quality standards required by West Virginia’s 22 NPDES permit. involved the enforcement of numerical limitations on the discharge of pollutants under a very Maryland 7 In that context, we concluded that the holder of a Maryland NPDES permit who “discharges pollutants that are not listed in its permit” was nonetheless shielded from liability und

22 er the CleWaterAct if it But this concl
er the CleWaterAct if it But this conclusion in does not allow West Virginia to ignore 5.1.f’s involveda permit that regulated only adherence to water quality standards like the permit at issue ermit at issue terms of their NPDES permitspermit holders to avoid liability. Id.at 265;see also id.at 259 (explaining that to holder must comply “with the express terms of [its] permit”). Fola no way to avoid liability if Fola has permitting agency simply will not issue a permit unless itMd. Code Ann., Envir. § 23 notcomplied “with the express termsof its permit,including provision Piney Runforbids a state from incorporating water

23 quality standards inthe terms of its Pin
quality standards inthe terms of its Piney Run, as we do today, that a must complywith allthe terms of its permit to be shielded from with water quality standards. If Fola did not do so, it may not imposes no obligations on itFola’s that are “harmful” or have adverse impact” on In a long, remarkably thorough opinion, the 3.2 No sewage, industrial wastes or other wastes present in any of the waters of the statef the ��24 &#x/MCI; 0 ;&#x/MCI; 0 ;district court explained its reasons for concluding that Fola’s discharges into Stillhouse Branchnarrative water who had published extensively in peerexperts

24 supported ’s have long used the Ind
supported ’s have long used the Index to mea harmful, hazardous or toxic to man, animal or integrity of thewaters of the State including the district courtfound eld] no training in the study of ecology” and, being analyzed the type of ecological dataat issue here. , 82 F. Supp. 3d at 681On appeal, Fola does not suggest that 25 stream’s Index score below 68, EPA considers the stream under 33 U.S.C. § 1313(d).infraThe explainedthe release of ions from Fola’s foundthat Fola’s caused or materially contributed to the of Stillhouse Branch by increasing contentionthat the district court findingdischarges in fact caused or

25 the Supreme Court has held to the contra
the Supreme Court has held to the contrary. of Jefferson Cty. v. WashDep’t of, 511 U.S. 700, 716 (1994) (explaining that the Clean Water Act “permits enforcement those governing ‘toxic pollutants listed pursuant to section Instead, Fola offerslargely derivative“process” s. A substantial portion of thoseargumentinvolve ’s mischaracterization of the district court’s careful and ��26 &#x/MCI; 0 ;&#x/MCI; 0 ;detailed fact-finding. Fola attempts to treat that fact-finding, which of course can only be reversed if clearly erroneous, as “rulemaking” subject to de novo review. &#x/MCI; 1 ;&#x/MCI; 1

26 ;B. &#x/MCI; 2 ;&#x/MCI; 2 ;Firs
;B. &#x/MCI; 2 ;&#x/MCI; 2 ;First, Fola maintains that it was deprived of “fair notice” assertionon interpretation ofSuffice it to say again the Coalitionfiled 3, Fola had been bound by the 2009 permit at issue here for years. Moreover,years prior to the commencement of this actionbrought to enforce water quality standards , personalizednotice thatthe water quality in a West Virginia NPDES permit were enforceable, and Fola next contends that it relied on guidance from WVDEP conductivity or water quality standards. gain as explained Fola offersevidencWVDEP made any such 27 2009last renewed offered evidence that WVDEP made such assurances when it issued

27 from bringing this lawsuitCongress enac
from bringing this lawsuitCongress enacted the at handin which the traditional enforcement agency declines to act. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.U.S. 49, 53 informal assurance that it will not pursue cannot preclude a citizen’to do so33 U.S.C. Finally, Fola argues that the district court engaged in argument issimilarlylaw defines “a rule” as “a generally applicable principle or standard developed by some authority including administrative authorities.” 1 Admin. L. & Prac. § 1:20 (3d ed.applicable principle or standard.” The court made factual contained in its permit, specifically30.5.1.f and ��

28 ;28 &#x/MCI; 0 ;&#x/MCI; 0 ;3.2
;28 &#x/MCI; 0 ;&#x/MCI; 0 ;3.2.e and -3.2.i. These rules have long been incorporated into Fola’s permit, and EPA has never approved their removal. They remain unchanged and controlling. &#x/MCI; 1 ;&#x/MCI; 1 ;We must reject Fola’s attempts to transform the district court’s detailed fact-finding into rulemaking. After carefully fact that that a failing Index score indicated an impaired that resulted in that impairmentese findings Some even rest on undisputed facts. identified, and Fola does not dispute, “miningas the source of the impairment of Stillhouse Branch. SeeWVDEP,2012 Final West Virginia Integrated Water Quality Monitori

29 ng and Assessment ReportList Page Secti
ng and Assessment ReportList Page Section its mine is the mine that discharges into Index “was specifically designed for assessment of the biological component of the 47 C.S.R. 2 Stillhouse Branch.Justification and Background for Permitting Guidance for Surface Coal Mining Operations to Protect West Virginia’s Narrative Water Quality Standards, 47 29 C.S.R. 2 §§ 3.2.e and 3.2.i 4(2010), http://www.dep.wv.gov/pis Despite this historic consensus, that WVDEP has recently rejected the Index as a determinant of water that “usurped” the agency’s court’s use of the Index. method of establishing violations of water quality standards. met

30 hodological alternative.” Fola, 82
hodological alternative.” Fola, 82 F. Supp. 3d at 679. On appeal, neither Fola nor WVDEP pointto any “methodological the district court simply applied the methodology both WVDEP and he district court , until 2012,EPA and WVDEPgenerally agreed to use an Index score of 68 to determine 30 at6710 The record offers abundant support for this finding. Letter from Shawn M. Garvin, EPA Regional , Enclosure (Mar. 25, 2013) aquatic life uses, and WVDEP’s bioassessment listing methodology for its 2010 Section 303(d) list (i.e., [the Index]) see also2010 West Virginia Integrated Water Quality Monitoring and Assessment Report14 (2010) (explaining 3.2.i, Index sco

31 res, and nor anyone elsesuggested that
res, and nor anyone elsesuggested that this use required promulgation of Prior to 2012 when it ceased using the Index to determine impairment, WVDEP had attempted to include a “grayzone” listing Letter, Enclosure 1, 12 n.3For our purposes, this Stillhouse Branch had an Index score ranging from to , 82 F. Supp. 3d at 696.Fola does not challenge these findings. ��31 &#x/MCI; 0 ;&#x/MCI; 0 ;quality standards. creatingctual determination usingthe Index as wellestablished methodology, the district court tillhouse Branch was findings of fact, not rulemaking. The court heard extensive expert testimony on the causal rela

32 tionship between increased evidenced y d
tionship between increased evidenced y declining Index scores. , 82 F. Supp. 3d 86. The concluded that mining relationship mining, conductivity, and it is worth mention that Fola also had notice of the court’s factual determination that Stillhouse Branch was impaired. WVDEP (with EPA approval) has listed Stillhouse Branch on its 2006 Integrated Water Quality Monitoring and Assessment Report15 at 2 that WVDEP assessed biological 32 decreased Index scores in 2008, a year before Folarenewpermit. Seeid.at 690 (citing Pond et al., supran. Otherarticles strengthened these findings. Id.(citing, among others, M.A. Palmer et al., Mountaintop

33 Mining Consequences327 Sci. 148 (2010)
Mining Consequences327 Sci. 148 (2010) (finding that as conductivity increased, Index In rebuttaloffered an expertwhom the district court found unqualified an assessment Fola does Finally, the relief the district court the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) n exercising that discretion, tto order Fola to implement the solution posed, a reverse osmosis system. The , ECF No. 183. Instead, the court appointed a special master to oversee implementation of proposed solution, which focused on water management practices that respond to the or conductivity leveltake 33 to increase the Index score of Stillhouse Branch. careful fact in finding that Fola violated it