Fourth Circuit Rejects “Constructive Submission” Theory in Case against West Virginia

On June 20, the U.S. Court of Appeals for the Fourth Circuit decided what be a very important decision for companies with mining interests in West Virginia, impacting their ability to comply with the Clean Water Act (CWA). Ohio Valley Environmental Coalition, et al., v. Pruitt, Administrator of EPA involves claims by several environmental groups against the Environmental Protection Agency (EPA) alleging that EPA failed to perform its nondiscretionary duty under the CWA to promulgate pollutant limits for biologically impaired waters in West Virginia. Although it found that the environmental plaintiffs have standing, the Court of Appeals reversed the District Court’s order granting summary judgment in their favor.

The environmental plaintiffs sued EPA in 2015. The U.S. District Court for the Southern District of West Virginia sitting in Huntington, WV, held that the plaintiffs had standing to prosecute this lawsuit, and agreed with the plaintiffs that EPA had not performed its duty under Section 303 of the CWA to approve or disapprove West Virginia’s “constructive submission” of no total maximum daily loads (or TMDLs).

Under the CWA, states are required to develop TMDLs for state waters determined to be impaired. If they do not do so, then EPA must step in and develop appropriate TMDLs in lieu of any state action. Since West Virginia had not submitted any TMDLs, the District Court held that West Virginia had “constructively submitted” no TMDLs, triggering EPA’s duty to act. After some reluctance, West Virginia agreed to develop its own TMDLs, beginning with in 2004. EPA had developed state TMDLs for the years 1997 through 2003, and West Virginia’s agreement was embodied in an agreement with EPA. However, the pace has been slow, convincing the plaintiffs that they needed to file this Citizen Suit under the CWA.

The Court of Appeals agreed that the plaintiffs had standing to bring this lawsuit, but rejected the District Court ’s use of the “constructive submission” theory of “no TMDLs submission,” an ingenious resolution to the problems caused when a state flatly refuses to act. The Court of Appeals notes that courts

“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.”

The Court of Appeals notes that West Virginia had not clearly and unambiguously refused to submit TMDLs to the EPA. For example, the Court of Appeals points to a number of pollutant-specific West Virginia TMDLs and notes that West Virginia has otherwise agreed to complete all of the at issue TMDLs by 2026. While “ionic toxicity”  TMDLs  are a point of contention between the plaintiffs and West Virginia , the Court of Appeals reversed the District Court’s order granting summary judgment in the plaintiffs’ favor, holding that West Virginia should be accorded some deference before the courts are compelled to step in.