## Facts

- West Virginia coal trade associations and coal operators challenged actions by the EPA Administrator affecting surface coal mining operations in West Virginia.
- West Virginia administered an EPA-approved state NPDES program under the Clean Water Act (CWA).
- Surface mines commonly used in-stream treatment ponds and fills (including structures for settling and placement of excess spoil/refuse in or along stream channels).
- EPA adopted a policy generally prohibiting in-stream treatment ponds and fills and objected to West Virginia draft NPDES permits that authorized such structures.
- Plaintiffs argued EPA acted beyond statutory authority by using § 402 oversight to restrict in-stream ponds/fills and contended the subject matter belonged to SMCRA regulation and/or CWA § 404 (Corps dredge-and-fill) permitting.
- The case came to the district court on plaintiffs’ motion for summary judgment seeking declaratory relief that EPA’s policy and objections were unlawful.

## Issues

1. Whether EPA has statutory authority under the CWA to adopt a policy generally prohibiting in-stream treatment ponds and fills.
2. Whether EPA may object, under § 402 oversight of a delegated state NPDES program, to draft state permits because they authorize in-stream treatment ponds and fills.
3. Whether SMCRA or CWA § 404 limits or displaces EPA’s § 402 authority regarding discharges associated with in-stream ponds and fills.

## Decision

- The court denied plaintiffs’ motion for summary judgment.
- The court held EPA had statutory authority under the CWA to adopt a policy generally prohibiting in-stream treatment ponds and fills where regulated discharges are implicated.
- The court held EPA may object to draft state NPDES permits that authorize such structures when EPA finds the permits fail to meet CWA requirements as interpreted by EPA.
- The court rejected the contention that SMCRA or § 404 deprived EPA of authority to act through § 402 oversight.

## Legal Principles

- Under CWA § 402, EPA retains substantive oversight authority over delegated state NPDES programs, including the power to review and object to draft permits that do not comply with federal requirements.
- EPA may use generally applicable policies to guide objections to state-issued draft NPDES permits, so long as the policy operates within the CWA’s framework for controlling pollutant discharges.
- The CWA’s water-pollution controls apply independently of SMCRA’s surface-mining and reclamation regime; compliance with SMCRA does not eliminate CWA obligations or EPA oversight authority.
- Although CWA § 404 governs discharges of dredged or fill material through the Corps, EPA may address pollutant discharges associated with mining-related in-stream structures through the NPDES program.

## Conclusion

The court upheld EPA’s authority under the Clean Water Act to generally prohibit in-stream treatment ponds and fills through § 402 NPDES oversight and to object to state draft permits authorizing them, concluding that neither SMCRA nor § 404 removed EPA’s power to act to prevent harmful pollutant discharges.


W. Va. Coal Ass'n v. Reilly, 728 F. Supp. 1276 (S.D.W. Va. 1989)