ELR Citation: ELR 20288
No(s). C2-93-751 (S.D. Ohio Aug 19, 1993)

The court grants a mine company's request for a preliminary injunction to prevent the U.S. Environmental Protection Agency (EPA or the Agency) and the Office of Surface Mining Reclamation and Enforcement (OSM) from acting to stop the company from pumping contaminated water from its flooded mine into neighboring streams. One of the company's mines became flooded and after evaluating several alternative solutions and gaining approval from the Ohio Environmental Protection Agency (OEPA) for an emergency plan that would have the water in the mine evacuated, bypassed by its normal treatment facilities, and placed directly into nearby waterways, the company sought and was granted an order temporarily restraining the OSM from duplicating the administrative process previously performed by the OEPA. In response to EPA's efforts to issue an administrative order preventing the pumping until further investigation could be completed, the company sought and was granted an order temporarily restraining EPA from acting to prevent the pumping by the company. In this action, the federal government challenged the court's jurisdiction to issue the temporary injunction against both the OSM and EPA.

The court first holds that it acted within its jurisdiction when its issued its order temporarily restraining EPA from interfering with the OEPA-approved bypass plan. Contrary to EPA's assertions, the issue presented is whether the Agency has exceeded its authority, and there is no case law nor any clear expression of congressional intent to preclude judicial review of an exercise of agency authority that is allegedly beyond the jurisdiction of the Agency. The court next holds that EPA may not issue an administrative cessation order to the company. The Federal Water Pollution Control Act (FWPCA) does not permit EPA to review a state enforcement agency's orders where that state agency has acted vigorously, diligently, and in accordance with statutory and regulatory procedures. Moreover, the FWPCA's legislative history makes clear that where an EPA-approved state agency has already acted, EPA may act only where the state agency is not acting expeditiously and vigorously to enforce control requirements. The court holds that EPA may not avail itself of the exception to this general rule that applies when a national pollutant discharge elimination system (NPDES) permit issued by one state affects the waters of another state, because EPA failed to support sufficiently its contention that West Virginia's waters may be unduly affected, West Virginia has not challenged the company's pumping operations, and such authority extends only to the disapproval of state-issued NPDES permits. Next, the court holds that the company is entitled to its requested preliminary injunction against EPA. EPA has not proven a likelihood of success in showing that the company's pumping activities violate the FWPCA, the harm caused by the flooding of the mine is likely to become irreparable unless the injunction is issued, the harm to others and the environment is insignificant as compared to the harm that will result if the mine is not evacuated, and the public policy of preserving the operation and the employment it provides outweighs opposing public policy. Finally, the court holds that the company is entitled to a preliminary injunction against the OSM, and bases its conclusion on the same findings it used to grant the injunction against EPA.

Counsel for Plaintiff
D. Michael Miller, Alvin J. McKenna
Porter, Wright, Morris & Arthur
41 S. High St., Columbus OH 43215
(614) 227-2000

Counsel for Defendants
Joshua Levin, Phil Brooks
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000