USCA4 Appeal: 22-1110 Doc: 39 Filed: 04/04/2023 Pg: 1 of 17
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-1110
UNITED STATES OF AMERICA; STATE OF ALABAMA, EX REL. LUTHER STRANGE, in his official capacity as Attorney General of Alabama; ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT; COMMONWEALTH OF KENTUCKY, ENERGY AND ENVIRONMENT CABINET; STATE OF TENNESSEE, EX REL. HERBERT H. SLATERY III, in his official capacity as the Attorney General and Reporter of Tennessee; COMMONWEALTH OF VIRGINIA,
Plaintiffs - Appellees,
v.
SOUTHERN COAL CORPORATION; PREMIUM COAL COMPANY, INCORPORATED,
Defendants – Appellants,
and
JUSTICE COAL OF ALABAMA, LLC; A&G COAL CORPORATION; FOUR STAR RESOURCES, LLC; INFINITY ENERGY, INCORPORATED; KENTUCKY FUEL CORPORATION; SEQUOIA ENERGY, LLC; VIRGINIA FUEL CORPORATION; NATIONAL COAL, LLC; S AND H MINING, INCORPORATED; AIRWAY RESOURCES, LLC; BADEN RECLAMATION COMPANY; BLACK RIVER COAL, LLC; CHESTNUT LAND HOLDINGS, LLC; MEG-LYNN LAND COMPANY, INCORPORATED; NINE MILE MINING, INCORPORATED; CANE PATCH MINING COMPANY, INCORPORATED; BLUESTONE RESOURCES, INCORPORATED; DYNAMIC ENERGY, INCORPORATED; GREENTHORN, LLC; JUSTICE HIGHWALL MINING, INCORPORATED; NATIONAL RESOURCES, INCORPORATED; NUFAC MINING COMPANY, INCORPORATED; PAY CAR MINING, INCORPORATED; SECOND STERLING CORPORATION; NEWGATE DEVELOPMENT OF BECKLEY, LLC.
Defendants. USCA4 Appeal: 22-1110 Doc: 39 Filed: 04/04/2023 Pg: 2 of 17
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Michael F. Urbanski, Chief District Judge. (7:16-cv-00462-MFU)
Argued: December 7, 2022 Decided: April 4, 2023
Before WILKINSON and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Floyd wrote the majority opinion, in which Judge Wilkinson joined. Judge Rushing wrote a separate opinion concurring in part and dissenting in part.
ARGUED: Robert Philip Fowler, SOUTHERN COAL CORPORATION, Birmingham, Alabama, for Appellants. David Seth Frankel, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Aaron B. Houchens, AARON B. HOUCHENS, P.C., Salem, Virginia; Michael W. Carey, S. Benjamin Bryant, CAREY DOUGLAS KESSLER & RUBY, PLLC, Charleston, West Virginia, for Appellants. Todd Kim, Assistant Attorney General, Patrick Casey, Michael T. Gray, Evelyn S. Ying, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee United States. Robert D. Tambling, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama; Wilson S. Buntin, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF TENNESSEE, Nashville, Tennessee, for State Appellees.
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FLOYD, Senior Circuit Judge:
Defendants-Appellants Southern Coal Corporation and Premium Coal Company,
Inc., (collectively, “Southern Coal”) ask this Court to reverse a district court’s order
granting a motion to compel compliance with a consent decree (the “Decree”) to which
they previously acquiesced. 1 The Decree operated to resolve allegations of approximately
23,693 Clean Water Act violations, pre-litigation, levied against Southern Coal by
Plaintiffs-Appellees Alabama, Kentucky, Tennessee, Virginia, and the United States of
America (collectively, the “government”). Because we conclude that the district court
properly found the Decree’s plain language to mandate compliance with the Clean Water
Act and derivative permitting obligations, we affirm.
I.
A.
The Clean Water Act (CWA) aims to “restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In furtherance of
that goal, the CWA prohibits pollutant discharges into the waters of the United States
without authorization. Id. §§ 1311(a), 1342, 1362. Designed to regulate discharges, the
CWA employs the National Pollutant Discharge Elimination System (NPDES), requiring
1 Notably, the motion to compel compliance implicated three entities: Southern Coal Corporation, Premium Coal Company, Inc., and Justice Coal of Alabama, LLC. Justice Coal is not an appellant here, but its interests are nonetheless reflected by Southern Coal’s participation, as Southern Coal is an operator of the Justice Coal facility implicated in this dispute and “controlled environmental compliance” for the facilities at issue here. Resp. Br. 3; see also Opening Br. 6 n.2. 3 USCA4 Appeal: 22-1110 Doc: 39 Filed: 04/04/2023 Pg: 4 of 17
polluters to obtain permits limiting the types and quantities of pollutants that they may
discharge, and imposing discharge monitoring and reporting obligations. Id. § 1342. The
Environmental Protection Agency (EPA) initially administers NPDES permitting for each
state, but states may seek transfers of permitting authority to their own regulatory bodies.
Id.; see also Ohio Valley Env’t Coal. v. Fola Coal Co., 845 F.3d 133, 136 (4th Cir. 2017).
As relevant here, both Alabama and Tennessee oversee their own NPDES permitting. See
44 Fed. Reg. 61452 (Oct. 25, 1979) (approving Alabama’s permitting program); 46 Fed.
Reg. 51644-02 (Oct. 21, 1981) (approving Tennessee’s permitting program).
To force permit holders to continually update their discharge-mitigation
technologies, NDPES permits expire every five years. 33 U.S.C. §§ 1342(a)(3), (b)(1);
Tex. Oil & Gas Ass’n v. EPA, 161 F.3d 923, 928 n.3 (5th Cir. 1998). Permits may be
administratively extended if a permittee submits a renewal application more than 180 days
prior to expiration. 40 C.F.R. §§ 122.6(a), 122.21(d)(2). A lapse in permit coverage
renders any subsequent discharges violative of the CWA. 33 U.S.C. § 1311(a).
B.
Southern Coal discharges pollutants into the waters of the United States, and, as
such, should maintain—and adhere to—NPDES permits for all relevant sites and facilities.
But, according to the government, it oft falls short of this aspiration of authorization and
compliance. Rather, the government contends that Southern Coal is a habitual violator of
the CWA and derivative NPDES-permitting obligations.
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In 2016, the government sued Southern Coal and more than thirty affiliated and
unaffiliated mining and mining-adjacent companies under the CWA for violations of
NPDES permits issued for operations in Alabama, Kentucky, Tennessee, Virginia, and
West Virginia. In its complaint, the government alleged approximately 23,693
violations—over a period of five years—of the various limitations and conditions imposed
by the pertinent NPDES permits. Joint Appendix (“J.A.”) 11, 89. The complaint sought
both injunctive relief and civil penalties under the CWA and equivalent state environmental
laws.
The same day that the government filed the complaint, it filed notice of a proposed
consent decree that it negotiated with Southern Coal—and other entities not party to this
appeal—to resolve the complaint’s allegations without proceeding to litigation. Among
other things, the Decree contained civil penalties for past violations, imposed new
monitoring and reporting obligations, provided stipulated penalties for future violations,
and required the establishment of a trust for the purpose of financial assurance of
enforcement costs. The government published the Decree to the Federal Register for thirty
days of public comment. Following this comment period, the government filed an
unopposed motion to enter the Decree, which the district court granted.
In 2020, the government sent a notice of default and demand for stipulated penalties
to Southern Coal, alleging failures to comply with the Decree based on Southern Coal’s
allowing NPDES permits covering particular facilities in Alabama and Tennessee to lapse.
In 2021, the government filed a motion in the district court to compel Southern Coal’s
compliance with the Decree. The district court granted the government’s motion, awarding
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stipulated penalties pursuant to the Decree and compelling compliance. Although Southern
Coal contended that nothing in the Decree obligated it to renew NPDES permits, the court
reasoned that it could not “end run the Consent Decree by allowing existing NPDES
permits at covered facilities to lapse,” thereby relieving it of obligations under the Decree
and forcing the government to pursue violations by commencing separate actions under the
CWA. United States v. S. Coal Corp., No. 7:16-CV-462, 2021 WL 5814050, at *4 (W.D.
Va. Dec. 7, 2021).
Southern Coal now seeks reversal of the district court’s order granting the
government’s motion to compel. It argues that the district court improperly considered the
purpose of the Decree and other extrinsic evidence—rather than only the plain language of
the Decree itself—when concluding that the Decree required maintenance of NPDES
permits. The government responds that the district court properly concluded that the plain
language of the Decree required Southern Coal to maintain and renew the relevant NPDES
permits, as well as to comply with the CWA in a general sense, and that the broader context
surrounding the Decree further supports that conclusion.
II.
This Court reviews the interpretation of a negotiated order—here, a consent
decree—de novo. Consumer Fin. Prot. Bureau v. Klopp, 957 F.3d 454, 462 (4th Cir. 2020)
(citations omitted).
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A consent decree resembles a contract, but “it is also a judicial or quasi-judicial act
and the judicial imprimatur gives what would otherwise be only a contract the force of a
judicial decree.” Willie M. v. Hunt, 657 F.2d 55, 59 (4th Cir. 1981). Given that a consent
decree is a product of careful negotiation and compromise, its scope “must be discerned
within its four corners, and not by reference to what might satisfy the purposes of one of
the parties to it.” United States v. Armour & Co., 402 U.S. 673, 681 (1971). A defendant’s
waiver of rights to litigate certain issues—rights guaranteed by the Due Process Clause—
is not to be perceived lightly, and “the conditions upon which he has given that waiver
must be respected.” Id. at 682.
However, given the contractual nature of a consent decree, “reliance upon certain
aids to construction is proper,” including consideration of “the circumstances surrounding
the formation of the consent [decree], . . . and any other documents expressly incorporated
in the decree.” United States v. ITT Cont’l Baking Co., 420 U.S. 223, 238 (1975). Thus,
this Court may consider the surrounding circumstances and “the general nature of the
remedy . . . agreed upon” in a decree without running afoul of Armour’s four-corners rule.
Willie M., 657 F.2d at 60.
Here, Southern Coal vehemently disputes whether this Court may deviate from strict
adherence to the four-corners rule established by the Supreme Court in Armour. But even
if we decline to consider the Decree’s general nature and surrounding circumstances, its
plain language supports the conclusion that it imposed on Southern Coal an obligation to
maintain NPDES permits and otherwise comply with the CWA.
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The government’s notice of default and its motion to compel compliance relied
largely on Decree paragraphs 22 and 29 for the proposition that the Decree obligated
Southern Coal to maintain NPDES permits. Those paragraphs reside within the “General
Compliance Requirements” section of the Decree. J.A. 117. Paragraph 22 provides that
“[Southern Coal] shall perform the work required by this [Decree] in compliance with the
requirements of all applicable federal, state, and local laws, regulations, and permits.” Id.
Paragraph 29 provides that “[w]here any compliance obligation under this Decree requires
[Southern Coal] to obtain a federal, state, or local permit or approval, [Southern Coal] shall
submit timely and complete applications and take all other actions necessary to obtain all
such permits or approvals.” J.A. 119.
Southern Coal contends that paragraphs 22 and 29 do not contain any explicit
references to NPDES permits or the CWA, and that, if considered in a vacuum, neither
paragraph contains standalone substantive requirements that obligate NPDES or CWA
compliance. But explicit invocations of NPDES permitting or the CWA are hardly
necessary to the extent that the Decree speaks in straightforward, sweeping terms
mandating compliance with “all applicable federal law,” J.A. 117, and acquisition of “all”
necessary “permits or approvals.” J.A. 119. Furthermore, Southern Coal offers no
justification for evaluating portions of the Decree in a vacuum, and doing so makes little
sense. When considered together, and in harmony with the plain language of other
provisions of the Decree, the mandates that Southern Coal comply with federal law and
acquire permits where necessary plainly impose NPDES-permitting obligations and
prohibit unpermitted discharges that run afoul of the CWA. To conclude that the
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uncomplicated mandates in paragraphs 22 and 29 somehow carve out CWA compliance
and NPDES permitting requires a tortured interpretation hardly reconcilable with Southern
Coal’s purported stance that we adhere to the plain language within the four corners of the
Decree.
Southern Coal also argues that its compliance and permitting obligations under
paragraphs 22 and 29 relate only to substantive work borne of other performance
obligations under the Decree—not to NPDES or CWA compliance. For example, if the
Decree were to require any reclamation work, Southern Coal contends that these
paragraphs would operate to mandate compliance with reclamation permitting
requirements pertaining to things like stormwater management. But, adhering to the four-
corners rule, as Southern Coal purports we must, the plain language of the Decree does not
distinguish between compliance with preconditions to performance—like NPDES
permitting or the CWA—and subsequent, derivative obligations—like stormwater
permitting.
The plain language of many other paragraphs implies compliance with the CWA
and NPDES-permitting obligations as conditions precedent to Decree performance. For
example, the Decree defines a covered facility as one that was “ever subject to or should
have been subject to permitting under . . . NPDES.” 2 J.A. 111. Paragraph 42 requires that
2 This sweeping definition of a covered facility effectively renders the Decree applicable anywhere and everywhere that discharges occur or have occurred, including where such discharges were wholly unpermitted and otherwise only subject to liability as CWA violations—and not just as permit violations. Such express, broad applicability of the Decree is consistent with the circumstances surrounding it and the general nature of the remedy it sought. See ITT Cont’l, 420 U.S. at 238; Willie M., 657 F.2d at 60. 9 USCA4 Appeal: 22-1110 Doc: 39 Filed: 04/04/2023 Pg: 10 of 17
Southern Coal undergo environmental audits to evaluate all facilities’ compliance with
applicable environmental laws, which necessarily include the CWA and NPDES. J.A. 127.
Paragraph 43 requires that these audits be performed by persons with “relevant experience
with the requirements of NPDES” and treatment systems for the “relevant effluent
parameters in [Southern Coal’s] NPDES [p]ermits.” J.A. 128. Paragraph 44 requires that,
for purposes of sampling during these required audits, sample locations must “be clearly
marked with a sign that includes [Southern Coal’s] NPDES . . . [p]ermit numbers.” Id.
Paragraph 45 requires inspection of all discharge outlets “as required by the NPDES
permit(s) applicable to [each] site[].” J.A. 129. Paragraph 47 provides that Southern Coal
must “implement a response plan for Effluent Limit and Failure to Sample Violations,
which shall provide for investigation of any such violations and implementation of actions
necessary to achieve compliance with the applicable NPDES [p]ermit limits and
requirements.” J.A. 130. That paragraph continues on to require Southern Coal to
“implement the recommended preventive and treatment measures and [to] continue daily
monitoring until the Outlet returns to compliance” with NPDES permits. J.A. 131.
Paragraphs 49 and 50 require Southern Coal to create a violation-tracking database—
identifying each violation by the NPDES permit number relating to it, the name of the
relevant permittee, and the precise location of the violating outlet. Southern Coal must
also establish a publicly available website providing real-time access to its NPDES permits,
pursuant to paragraph 58. Paragraph 77 describes an NPDES permit violation as an “event
affecting [Southern Coal’s] performance under [the] Decree.” J.A. 144. Paragraphs 84
and 85 provide stipulated damages where Southern Coal “fail[s] to perform any obligation
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required by the terms of this Decree,” which necessarily includes those obligations directly
tied to the existence of NPDES permits. J.A. 145. Indeed, failure to perform includes “any
exceedance of a maximum daily discharge limitation for any parameters set forth in
[Southern Coal’s] NPDES [p]ermits,” reporting violations, auditing violations, and more.
J.A. 108; 145–46. Worthy of emphasis, each of these paragraphs and their accompanying
directives applies not only where an NPDES permit exists, but also where one should exist.
J.A. 111. Thus, the Decree’s obligations logically extend where a permit has lapsed and
where none existed in the first place—i.e., to unpermitted discharges.
Taken together, these paragraphs—and others—plainly require Southern Coal to
possess and maintain NPDES permits, as well as comply with the CWA, as conditions
precedent to the ability perform under the Decree. The absence of NPDES permits would
render compliance with many obligations under the Decree impossible, given that such
obligations trace directly to baselines that NPDES permits provide. Thus, even if the plain
language of the Decree does not employ excruciating detail in stating something to the
effect of “Southern Coal must maintain NPDES permits and comply with the CWA,” such
obligations are clearly and plainly presumed by the numerous other obligations the
performance of which relies on CWA and NPDES compliance.
The district court properly recognized the absurdity of Southern Coal’s position that
it could simply allow its permits to lapse to avoid obligations under the Decree. The court
explained that “adopting [Southern Coal’s] proposed interpretation of the [Decree] would
generate absurd results. Indeed, if the [Decree] did not bar [Southern Coal] from operating
sites without NPDES permits, they could avoid the [Decree’s] requirements altogether by
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simply allowing their permits to expire.” S. Coal. Corp., 2021 WL 5814050, at *5. The
plain language of the Decree does not lend itself to such an exit strategy for Southern Coal.
In fact, by way of example, it contains several paragraphs dedicated to ensuring that
Southern Coal could not shed compliance obligations by transferring facility ownership.
J.A. 104–06. It also provides express terms of termination, none of which contemplate the
deliberate lapsing of NPDES permits. J.A. 166–67.
Although the plain language of the Decree clearly supports the district court’s
conclusion that Southern Coal was obligated to maintain NPDES permits—and that alone
is sufficient basis to affirm—this Court may also consider the circumstances surrounding
the Decree and the general nature of the remedy agreed upon. See ITT Cont’l, 420 U.S. at
238; Willie M., 657 F.2d at 60. Here, the underlying dispute revolved around tens of
thousands of NPDES-permitting and CWA violations. It cannot reasonably be argued that,
in formulating the Decree, the parties contemplated undermining its efficacy by authorizing
the exact conduct that it sought to remedy. If Southern Coal intended such a backdoor to
compliance, then it likely did not negotiate the Decree in “good faith” to forge an agreement
that was “fair, reasonable, and in the public interest,” as it purported to do as a Decree
signatory. J.A. 102.
Notably, Southern Coal takes great issue with the district court’s statement that the
company’s position “would undermine the entire purpose of the [Decree].” S. Coal Corp.,
2021 WL 5814050, at *5. Southern Coal argues that this invocation of “purpose” runs
afoul of Armour’s four-corners rule by engaging in speculation that infringes upon the Due
Process rights sacrificed by the entity in the Decree-negotiation process. But Southern
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Coal’s argument is unpersuasive. Although it is correct that Armour prohibits speculation
as to a consent decree’s purpose, see 402 U.S. at 681–82, the district court’s comment here
was entirely inconsequential. Rather, it followed the district court’s meticulous analysis of
the plain language of the Decree, and Southern Coal calls attention to it now as a cherry-
picked blemish amidst an overwhelmingly correct analysis. Even if this invocation of
“purpose” constitutes error, it did “not affect the substantial rights of the parties.” 28
U.S.C. § 2111. Thus, insufficient basis exists to reverse on this statement alone.
III.
We do not lightly perceive the Decree’s status as a carefully negotiated, carefully
crafted document that reflects not concessions to liability for underlying complaint
allegations, but instead a discerning, good-faith compromise between the parties in lieu of
costly litigation. However, our respect for the terms of the Decree does not blind us to
absurd interpretations of its plain language. Not only does the Decree plainly mandate
compliance with all federal law and permitting obligations, but numerous terms rely on
CWA compliance and the maintenance of NPDES permits as conditions precedent to
performance. The district court correctly construed the Decree’s language and barred
Southern Coal from surreptitiously escaping the bargain struck.
AFFIRMED
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RUSHING, Circuit Judge, concurring in part and dissenting in part:
The Government claims that Southern Coal violated the consent decree in two ways:
first, by failing to maintain its NPDES permits and, second, by discharging pollutants after
those NPDES permits had expired (what the Government calls “unpermitted discharges”).
The district court agreed with the Government and imposed penalties of $2,523,000 for the
failure to maintain permits and $21,000 for the unpermitted discharges. The majority
agrees that both actions violated the consent decree and so affirms. But I read the decree
a little differently. While I agree that the consent decree required Southern Coal to maintain
NPDES permits, I disagree that it prohibited unpermitted discharges. So I respectfully
dissent in part.
Begin with where the majority and I agree. By failing to maintain its NPDES
permits, Southern Coal violated the terms of the consent decree. We construe a consent
decree “basically as a contract,” United States v. ITT Cont’l Baking Co., 420 U.S. 223, 238
(1975), and are “‘constrained by the language of the decree,’” Consumer Fin. Prot. Bureau
v. Klopp, 957 F.3d 454, 463 (4th Cir. 2020) (quoting Thompson v. U.S. Dep’t of Housing
& Urban Dev., 404 F.3d 821, 832 n.6 (4th Cir. 2005)). Paragraph 29 of the consent decree
provides that “[w]here any compliance obligation under this Decree requires [Southern
Coal] to obtain a federal, state, or local permit,” Southern Coal will take all “actions
necessary to obtain all such permits.” J.A. 119. By its terms, this provision is not an
obligation to obtain any specific permit. Instead, it requires a permit only if that permit is
necessary to comply with another obligation.
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So we ask: Is an NPDES permit necessary to comply with any obligation under the
consent decree? Yes. In fact, NPDES permits are a necessary component of many such
obligations. Take, for example, Paragraph 45, which requires Southern Coal to “conduct
Outlet Inspections . . . as required by the NPDES permit(s) applicable to such sites.” J.A.
129. Or consider Paragraph 47, which requires Southern Coal to “implement a response
plan” for certain violations, which includes steps to “achieve compliance with the
applicable NPDES Permit limits and requirements.” J.A. 130. Various other provisions
require Southern Coal to maintain databases that identify outlets by NPDES permit
numbers, provide information about its NPDES permits, and to track any “NPDES effluent
limit that was exceeded.” J.A. 134. Finally, the financial assurance section requires
Southern Coal to “tak[e] all necessary . . . actions to comply with [its] NPDES permits for
the term of the Consent Decree.” * J.A. 139. Southern Coal cannot meet these obligations
without having NPDES permits. Paragraph 29’s obligation to maintain those permits
therefore applies, and Southern Coal’s failure to do so violated the consent decree.
Now turn to the point of disagreement. Unpermitted discharges unquestionably
violate the CWA. But the question here is whether such discharges also violate the consent
decree. They do not.
* Southern Coal apparently concedes that its failure to maintain its NPDES permits violated this provision. See Opening Br. 16. But it argues the Government cannot collect stipulated penalties for such a violation. This argument misses the point. Paragraph 29’s requirement is triggered if any obligation requires an NPDES permit. 15 USCA4 Appeal: 22-1110 Doc: 39 Filed: 04/04/2023 Pg: 16 of 17
Put simply, no provision in the consent decree specifically prohibits Southern Coal
from discharging pollutants without a permit. Neither the Government nor the majority
identifies any provision making unpermitted discharges a violation of the consent decree.
The Government relies instead on Paragraph 22, which it reads as requiring Southern Coal
to comply with all the requirements of the CWA. And because unpermitted discharges
violate the CWA, the argument goes, those discharges also violate the consent decree.
The Government misinterprets Paragraph 22. Much like Paragraph 29 above,
Paragraph 22 does not contain an independent obligation to follow all the requirements of
the CWA. Rather, Paragraph 22 says Southern Coal “shall perform the work required by
this Consent Decree in compliance with the requirements of all applicable federal, state,
and local laws, regulations, and permits.” J.A. 117. In other words, when Southern Coal
performs work required elsewhere in the consent decree, it must do so in conformity with
applicable law. Paragraph 22 is not a freestanding obligation to comply with all the
requirements of the CWA or, for that matter, with all other “federal, state, and local
laws”—that would prove too much. Not even the Government claims it could collect
stipulated penalties under the consent decree based on violations of, for example, federal
or state tax laws. And although “the work required by this Consent Decree” includes
complying with discharge limitations, the consent decree defines those limits exclusively
by reference to NPDES permits. Unpermitted discharges are left unaddressed.
The majority makes two responses. First, the majority asserts this interpretation
leads to absurd results because Southern Coal could avoid its consent decree obligations
by letting its NPDES permits expire. Maj. Op. 11–12. But that is not so. As explained
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above, the Government can collect stipulated penalties for Southern Coal’s failure to
maintain and follow its NPDES permits. It can also trigger the financial assurance section
and conduct the work itself. And, of course, the Government can pursue remedies directly
under the CWA. Second, the majority reasons that because the consent decree covers
facilities that had or should have had NPDES permits, the obligations of the consent decree
logically extend to unpermitted discharges. Maj. Op. 9, 11. But the fact that the consent
decree applies to all facilities does not tell us what the consent decree requires of those
facilities.
In view of the foregoing, I would affirm the district court in all respects except for
the $21,000 in penalties awarded for Southern Coal’s unpermitted discharges, which I
would reverse.