Petition for Writ of Certiorari — Law v. United States

Court, U.S.

FILED

JAN 19 1993

In Che a Or oF Te ex

Supreme Court OF The United St States —~

OCTOBER TERM, 1992

LEWIS R. LAW,

MINE MANAGEMENT, INC.,

Petitioners,

Vy

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Robert B. King

Robert B. Allen

KING, BETTS & ALLEN

P.O. Box 3394

Charleston, WV 25333

(304) 345-7250

Counsel of Record

for Petitioners

LAWYERS PRINTING COMPANY 7th & Franklin Bidg. Richmona, Virginia 23219 (804) 648 - 3664

QUESTION PRESENTED FOR REVIEW

In the absence of some affirmative

act of causation, may mere ownership

of the surface of land through which

polluted waters flow constitute a

Criminal violation of federal law?

DESIGNATION OF PARTIES

The parties to the appeal before the

United States Court of Appeals for the

Fourth Circuit were the Petitioners,

Lewis R. Law and Mine Management,

Incorporated, and the Respondent, the

United States of America. These were the

parties before the court of original

jurisdiction, the United States District

Court for the Southern District of West

Virginia.

Mine Management, Incorporated has

no parent or subsidiary companies.

QUESTION PRESENTED FOR REVIEW

DESIGNATION OF PARTIES

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR ALLOWANCE OF THE WRIT

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

B

17

Cases

TABLE OF AUTHORITIES

Appalachian Power Co.

Train,

(4th

Cir. 1976)

Vv.

945 F.2d 1351

Nat'l Wildlife Federal v.

Gorsuch,

(D.C.

Nat'l Wildlife Federation v.

Cir. 1982)

693 F.2d 156

Consumers Power Co.,

862 F.2d 580

Powell v.

0.8.

Texas, 392

514 (1968)

(6th Cir.

United States of America v.

Lewis R. Law, 1992 U.S.

App.

a Fe

LEXIS 24512

1992)

(4th

Page

e, in, to

8 ia; to

1988) 7, 11

OO

hound

O

14

Federal Statutes

28

a

33

33

a0

U.

U.

U.

U.

§

§

Mm Mm MN

1254

A3h2

1319

1342

1362

and Rules

1

OPINION BELOW

The opinion of the Fourth Circuit

Court of Appeals sought to be reviewed is

reported as United States of America v.

Lewis R. Law, 1992 U.S. App. LEXIS 24512

(4th Cir. 1992). It is reproduced in the

Appendix, infra, at l - 13.° An Order

on Rehearing was issued by the court of

appeals on October 21, 1992 and it is

reproduced in the Appendix, infra, at

14 - 15.

JURISDICTION

Jurisdiction is invoked pursuant to

28 U.S.C. § 1254(1). The Court of

Appeals' judgment was entered on

September 25, 1992. A petition for

“Originally, this opinion was

unpublished. However, by Order issued

November 9, 1992, the status of the

opinion was changed from unpublished to

published. It does not yet have a

Federal Reporter citation.

2

rehearing and suggestion for rehearing in

banc was timely filed. This petition was

denied by Order of October 21, 1992.

This petition for writ of certiorari is

timely filed pursuant to Rules 13.1 and

i3.4 of the Supreme Court Rules.

STATUTORY PROVISIONS INVOLVED

This matter involves the Federal

Water Pollution Control Act ("Clean Water

aoe” 3, oe esc Gs” Se-2344t8), L329(6)12).

1342(a) and 1362(12) reproduced in the

Appendix, infra, at 16 - 24.

STATEMENT OF THE CASE

Criminal prosecution was commenced

against petitioners Mine Management,

Incorporated ("MMI") and Lewis R. Law in

1991 for alleged felony violations of the

Clean Water Act (the indictment is

reproduced in the Appendix, infra, at

aa = 3i). The statute under which the

2

indictment was brought is 33 U.S.C. §

1319(c). The specific offense charged

was knowingly discharging pollutants into

navigable waters of the United States

from a point source without a National

Pollution Discharge Elimination System

("NPDES") permit.

The property involved is 241 acres

of land located at Summerlee, Fayette

County, West Virginia. In 1930, the New

River Coal Company ("New River"), a

subsidiary of Chesapeake & Chio Railway

Company, commenced coal operations on the

property and continued these operations

for 50 years. These operations included

a coal preparation plant as well as other

activities incident to mining and

resulted in considerable coal _ refuse

which New River dumped into three hollows

or valleys. Eventually, this resulted in

4

the amassing of a refuse pile covering 70

acres and being 100 feet deep.

In 1977 petitioner Law formed MMI

which, despite its name, has never been

an operating coal company and has never

managed a mine. Rather, MMI was created

as a vehicle to find and negotiate leases

for operating companies.

Late in the 1970's, under pressure

from the United States Environmental

Protection Agency ("EPA") and the West

Virginia Department of Natural Resources,

New River was forced to begin treatment

of water pollution. This treatment

involved a runoff point, settlement

ponds, a pump and the use of soda ash

pellets to raise the pH level of the

water.

In 1980, shortly after it was forced

to begin water treatment, New River

Closed its coal preparation plant and

5

began to look for buyers. The

petitioners were interested in purchasing

the surface of the property for future

development of a mobile home park, a

scenic railroad, the restoration and

preservation of an old company store as a

historic landmark, and recovery and

reprocessing of coal refuse and fines

previously deposited about the surface of

the property.

Thus, in the spring of 1980,

petitioners negotiated with New River and

ultimately purchased the surface only of

the 241 acres by deed dated April 1,

1980.

Prior to the sale, by letter of

August 10, 1976, the EPA advised New

River that it was responsible for the

water pollution, as long as the pollution

continued to be discharged. (Reproduced

in the Appendix, infra, at + ee

6

However, almost immediately upon the

petitioners’ acquisition of the surface,

and despite the EPA's earlier warning

that New River was still responsible for

cleaning up the pollution it had

generated for 50 years, the state

regulatory authorities began to insist

that MMI was now required to clean up the

mess even though it was only the surface

owner and was not an operating coal

mining company.

Although petitioners did not and do

not now dispute the fact that waters

running through the property are polluted

within the meaning of the statutes and

regulations involved, the petitioners are

not responsible and have committed no

crime because petitioners did not do

anything to cause additional discharges.

Nevertheless, petitioners were

convicted and petitioner Law was fined

ij

$80,000 and sentenced to two years

incarceration which he is’ currently

serving.

REASONS FOR ALLOWANCE OF THE WRIT

This case warrants review because

the Court of Appeals opinion has miscon-

strued applicable legal principles and

material facts with respect to the

application of the relevant provisions of

the Clear Water Act. Under the statute

by which petitioners were prosecuted, the

concept of "discharging pollutants" has

been misconstrued and misapplied by the

Court of Appeals.

Specifically, the decision is

contrary to and in conflict with

decisions in the Fourth, Sixth and

District of Columbia Circuits’ holding

“See Nat'l Wildlife Federation v.

Consumers Power Co., 862 F.2d 580 (6th

(continued... )

8

that "discharge of a pollutant" means the

actual "addition" of a pollutant. By the

contrary decision below, the Court of

Appeals thwarts due process by permitting

criminal felony convictions for alleged

pollution violations of petitioners who

discharged no pollutants whatsoever. The

decision, if allowed to stand, imposes

liability upon any property owner over

whose property polluted water flows

through no fault cf his own. Thus, all

landowners are potentiaily placed in a

Catch-22 situation: either expend large

sums of money to clean up pollution which

they had no part in causing or be held

criminally liable and face incarceration.

*”( .. continued )

Cir. 1988), Nat'l Wildlife Federal v.

Gorsuch, 693 F.2d 156 (D.C. Cir. 1982)

and Appalachian Power Co. v. Train, 545

F.2d 1351 (4th Cir. 1976).

9

Therefore, the requested writ must

issue to afford this Court the

opportunity to correct the error below.

In relevant part, ck i! oe

1362(12) defines "discharge of a

pollutant" as “any addition of any

pollutant to navigable waters from any

point source." (Emphasis supplied.) In

construing this statute, the Court of

Appeals overlooked and misapprehended not

only material facts but also eciiaiv

established principles of criminal law.

& is fundamental to criminal

jurisprudence that some action be proved

before criminal responsibility may be

properly imposed. Powell v. Texas, 392

U.S. 514 (1968). In fact, as Justice

Marshall observed, "one eminent authority

has found only one isolated instance, in

all of Anglo-American jurisprudence, in

which criminal responsibility was imposed

10

in the absence of any act at all." Id.

at 543.

Here, the facts and evidence

establish that the stream in issue was

already polluted at the time it flowed

onto petitioners' property and that

petitioners did not cause the addition of

any further pollutants into the stream.

Leroy Gilbert, an environmental

inspector with the West Virginia Division

of Natural Resources and a government

witness, admitted at trial that the

pollution situation already existed when

petitioners purchased the property, and

that the petitioners had not done

anything to cause additional discharges.

‘(Reproduced in Appendix, infra, at 34.)

Additionally, witness Faykus testified

that he had engaged in mining on a

mountain above petitioners' property and

had encountered considerable reddish-

11

colored water at elevations 200 to 300

feet above petitioners’ property.

(Reproduced in Appendix, infra, at

32 = 37.) And, Dr. George A. Hall, a

Ph.D. in geotechnical engineering who had

personally visited petitioners' property

and the adjacent properties, testified

that the pollution originating on the

adjacent property actually generates the

headwaters of Wolf and Arbuckle Creeks

and, therefore, the streams are polluted

at their source before they ever reach

petitioners' property. (Reproduced in

Appendix, infra, at 38 - 39.)

As a consequence of overlooking

these facts, the Court of Appeals thereby

misapprehended the application and

interpretation of the statutory and case

law.

Several cases, including Nat'l

Wildlife Federation v. Consumers Power

12

Co., 862 F.2d 580 (6th Cir. 1988), Nat'l

Wildlife Federal v. Gorsuch, 693 F.2d 156

(D.C. Cir. 1982) and Appalachian Power

Co. ww. Train 3645 F.24 i3Si (4th Cir.

1976), precisely illustrate that in order

for petitioners to be criminally

responsible, they must be found to have

added a pollutant to the waters of the

United States, and they are not liable

for the discharge of pollutants that were

already in the water.

In fact, the Court of Appeals'

ruling is directly contrary to Fourth

Circuit precedent that:

(T]he Act prohibits only the

addition of any poilutant to

navigable waters from a point

source {and that] those

constituents occurring

naturally in the waterways or

industrial discharges, do not

constitute an addition of

pollutants by a plant through

which they pass.

13

(Emphasis Supplied.) Train, 545 F.2d at

L377 Further, it is relevant to note

that this specific Train holding was

cited by the District of Columbia Circuit

in Gorsuch for the proposition that

"(Tw]Jithout causation, there is no legal

responsibility for removing pollution

from the water." 693 F.2d at 174, n.57.

Clearly, this is the law in the

Fourth Circuit. In fact, the Court of

Appeals has acknowledged as much in this

case in ruling that the trial court's

instruction that "[i]t is not a defense

that some, or all, of the

pollutants . . . originated at places not

on the defendants' property" was in

error, albeit allegedly harmless. Law,

at 6-7.

Additionally, the law set forth in

Train and Gorsuch is consistent with

elementary principles of criminal law as

14

enunciated and explained by this Court in

Powell, supra. Therefore, these

convictions warrant review by the Court

and should be vacated.

CONCLUSION

For the foregoing reasons, it is

respectfully submitted that this Petition

for Writ of Certiorari should be granted.

Respectfully submitted,

Gees SSA

ROBERT B. KING

i ; RELEN ~ ="

KING, BETTS & ALLEN

P. O. Box 3394

Charleston, WV 25333-3394

(304) 345-7250

Counsel for Petitioners

15

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

LEWIS R. LAW,

MINE MANAGEMENT, INC.

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

CERTIFICATE OF SERVICE

I, ROBERT B. KING, counsel for

Petitioners, hereby certify, pursuant to

Rules 29.3, 29.4(a) and 29.5 of the

Supreme Court Rules, that copies of the

foregoing Petition for Writ of Certiorari

have been served upon the United States

of America by mailing three copies on the

19th day of January, 1993, in envelopes

with first class postage prepaid in the

16

regular course of the United States mail

addressed to:

Solicitor General

Department of Justice

Washington, D.C. 20530

and

Michael W. Carey

United States Attorney

P. O. Box 3234

Charleston, WV 25332

Soak SOK

ROBERT B. KING |

Counsel for Petitioners

17

APPENDIX

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv. No. 92-5075

LEWIS R. LAW,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 92-5076

MINE MANAGEMENT, INCORPORATED,

Defendant-Appellant.

Appeals from the United States

District Court for the Southern

District of West Virginia, at Beckley.

Elizabeth V. Hallanan, District Judge

(CR-9$1-225)

Argued: June 4, 1992

Decided: September 25, 1992

Amended November 9, 1992. Released for

Publication November 9, 1992.

Before HALL and PHILLIPS, Circuit Judges

and BUTZNER, Senior Circuit Judge

App. 1l

Affirmed by published per curiam opinion.

COUNSEL

ARGUED: Victor Alfred Barone, HURT &

BARONE, Charleston, West Virginia, for

Appellants. Sanford Benjamin’ Bryant,

Assistant United States Attorney,

Charleston, West Virginia, for Appellee.

ON BRIEF: Charles E. Hurt, HURT & BARONE,

Charleston, West Virginia, for

Appellants. Michael W. Carey, United

States Attorney, Phillip B. Scott,

Assistant United States Attorney,

Charleston, West Virginia, for Appellee.

OPINION

PER CURIAM:

Lewis R. Law and Mine Management,

Inc. appeal their felony convictions for

violating the Clean Water Act, 33 U.S.C.

§ 1319(c)(2) ("CWA") by knowingly

discharging polluted water into Wolf and

Arbuckle Creeks in Fayette County, West

Virginia without a National Pollution

App. 2

Discharge Elimination System ("NPDES" )

permit. Finding no reversible error, we

affirm.

I

In 1977 Lewis R. Law formed Mine

Management, Inc. ("MMI"), a West Virginia

corporation, to engage in various coal-

related business activities. From MMI's

inception, Law was its sole officer and

stockholder. In 1980, MMI purchases 241

acres from the New River Company ("New

River"). The conveyance included an aged

coal preparation plant, masses of coal

refuse ("gob piles"), and a water

treatment system. New River installed

this system in the late 1970s to collect,

divert, treat, and discharge runoff and

leachate from a gob pile that covered a

large portion of the subject property.

The water treatment system _ was

designed to reduce the acidity and metal

App. 3

content of drainage from the gob pile.

The system comprised a collection pond

near Wolf Creek, a pump, and piping that

channeled the collected water over a

ridge and through a= hopper, which

dispensed soda ash briquettes to raise

the pH of the water. Iron and manganese

then precipitated out as the water flowed

through two settling ponds before its

discharge into Arbuckle Creek.

The water treatment system was

subject to an NPDES permit when MMI

purchased the site. Despite repeated

notice, nowever, neither MMI nor Law ever

applied for, or was granted, an NPDES

permit authorizing discharges into Wolf

or Arbuckle Creeks. Due to MMI's failure

to operate the water treatment system

effectively, acid mine drainage

discharged from the collection pond into

Wolf Creek, or from the second settling

App. 4

pond into Arbuckle Creek, on at least 16

occasions between March, 1987 and

November 15, 1991. Law and MMI were

indicted for violating the CWA, 33 U.S.C.

§ 1319(c)(2), tried to a jury, and found

guilty. Law was sentenced to two years

in prison and Law and MMI were fined

$80,000.00 each.

II

Law and MMI challenge their

convictions on two grounds. They argue,

first, that the trial court instructed

the jury erroneously on the law governing

their case and, second, that the court

abused its discretion in barring evidence

regarding New River's alleged policy of

concealing preexisting environmental

problems from prospective purchasers of

its property. We reject both grounds of

appeal.

App. 5

A

Under the CWA, it is a felony to (a)

Knowingly (b) discharge (c) a pollutant

(d) from a point source (e) into a

navigable water of the United States (f)

without, or in violation of, an NPDES

permit. See 33 U.S.C. §§ 1131(a),

teaete diz), 1342(a); Arkansas Vv.

Oklahoma, 112 S. Ct. 1046, 1054 (1992);

see also 33 U.S.C. § 1362(12) (defining

"discharge" as "any addition of any

pollutant to navigable waters from any

point source" ) (emphases added ).

Appellants do not contest that they added

untreated acid mine drainage to Wolf and

Arbuckle Creeks from the collection pond

and the settling pond, respectively,

knowing that they lacked the requisite

NPDES permit.

In challenging the trial court's

jury instructions, however, appellants

App. 6

contend that the CWA imposes liability

only upon the generators of pollutants

discharged into navigable waters of the

United States, and not upon persons over

whose property preexisting pollutants are

passed along to flow finally into

navigable waters. They contend that the

trial court erred by refusing to instruct

the jury that no responsibility lies for

discharging pollutants that originate

beyond one's) own property, and by

instructing the jury instead that

‘‘Defendants' Instructions 9A, 10,

and 14 would have required the jury to

find liability only if defendants were

shown to generate the pollutants at

issue. Defendants' Instructions No. 11A,

12, and 13 would have required the jury

to find that defendants, as owners solely

of the property's surface, had no duty to

treat waters contaminated by the

property's subsurface. Defendants'

Instruction 15, which was omitted from

the Joint Appendix, apparently tracked

Instructions 114A, i F and 13. See

Appellants' Brief at 32.

App. 7

¢ © it is not a defense to

the charge that the water

discharged from the point

source came from some other

place or places before its

discharge from the point

source. It is not a defense to

this action that some, or all,

of the pollutants discharged

from a point source originated

at places not on the defen-

dants' property. This is

because the offense consists of

the knowing discharge of a

pollutant from a point source

into a water of the United

States (without, or in

violation of, an NPDES permit].

J App 489-90

Appellants rely for this contention

upon. decisions in National Wildlife

Federation v. Consumers Power Co., 862

r.26 Seu (6tn Cir. 1988), National

Wildlife Federation v. Gorsuch, 693 F.2d

156 (D.C. Cir. 1982), and Appalachian

Power (5. wv. Train, 545 F.24@ i351 (4th

Cir. 1976). In these cases, operators of

power plants and dams diverted, then

released, navigable waters of the Untied

States. The appellate courts held that

App. 8

where "pollutants" existed in the waters

of the United States before contact with

these facilities, the mere diversion in

the flow of the waters did not constitute

"additions" of pollutants to the waters.

Consumers Power, 862 F.2d at 585-86;

Gorsuch, 693 F.2d at 174-75; Train, 545

F.2d at 1377-78. Appellants sought to

square their case with these decisions by

showing that the headwaters of Wolf and

Arbuckle Creeks originated, and were

polluted, before entering their water

treatment system, so that, like the power

plant and dam operators, they had no duty

to remove preexisting pollutants.

With respect to pollutants

preexisting in the waters of the United

States, where the flow of the waters is

merely diverted, the trial court's jury

instructions did not state the law with

strict accuracy ("[{i]t is not a defense

App. 9

—— that some, or all, of the

pollutants . . . originated at places not

on the defendants' property"). The error

was harmless, however, because, as a

matter of law, appellants' water

treatment system was not part of the

waters of the United States; to the

contrary, the system constituted a point

source.

Unlike the river and lake waters

diverted in Consumers Power, Gorsuch, and

Train, appellants' water treatment system

collected runoff and leachate subject to

an NPDES permit under the CWA, = and

therefore was not part of the "waters of

the United States." See 40 C.F.R.

122.2(g) ("Waste treatment systems,

including treatment ponds and lagoons

designed to meet the requirements of CWA

- + « are not waters of the United

States."). The origin of pollutants in

App. 10

the treatment and collection ponds is

therefore irrelevant. The proper focus

is upon the discharge from the ponds into

Wolf and Arbuckle Creeks.

Appellants' treatment system is also

unlike the power plants and dams at issue

in Consumers Power, Gorsuch, and Train

because it clearly satisfies the

statutory definition of "point source."

See 40 C.F.R. 122.2 (a “point source" is

"any discernible, confined and discrete

conveyance, including but not limited to

any pipe, ditch, channel, .. . conduit,

discrete SipOure, «© « « [or]

landfill leachate collection system.

from which pollutants are or may be

discharged" (emphasis added); "discharge"

includes "surface runoff which is

collected or channelled by man"); see

also Sierra Club v. Abston Constr. Co.,

620 F.2d 41, 47 (Sth Cir. 1980)

App. ll

(collection and channelling of runoff

constitutes a point source). Because

appellants' treatment system was, as a

matter of law, not part of the waters of

the United States but instead a point

source, the trial court's instructions to

the jury were without prejudicial error.

B

Appellants also claim that the trial

“court abused its discretion in excluding

evidence concerning New River's alleged

policy of concealing existing

environmental problems from prospective

purchasers. Under the foregoing analysis

of the CWA, the relevant mens rea issue

was Law's knowledge as of March, 1987,

that the ponds were discharging

pollutants into the creeks without, or in

violation of, an NPDES permit.

Appellants' attempts to cross-examine

former New River employees Louis

App. 12

Briguglio and Don Reedy regarding the

alleged policy were therefore properly

excluded as irrelevant. Law's testimony

regarding his conversations with

Briguglio were properly excluded as

hearsay.

III

For the foregoing reasons, we affirm

the convictions of Lewis R. Law and Mine

Management, Inc. on all counts.

AFFIRMED

App. 13

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

October 21, 1992

No. 92-5075

UNITED STATES OF AMERICA

Plaintiff - Appellee

Vv.

LEWIS R. LAW

Defendant - Appellant

No. 92-5076

UNITED STATES OF AMERICA

Plaintiff - Appellee

Vv.

MINE MANAGEMENT, INCORPORATED

Defendant - Appellant

On Petition for Rehearing with

Suggestion for Rehearing In Banc

Appellants filed a petition for

rehearing with suggestion for rehearing

App. 14

in banc. No member of the Court

requested a poll on the suggestion for

rehearing in banc, and the _ original

judicial panel voted to deny the petition

for rehearing.

The Court denies the petition for

rehearing with suggestion for rehearing

in banc.

Entered at the direction of Judge

Phillips, with the concurrence of Judge

Hall and Senior Judge Butzner.

For the Court,

S/ Bert M. Montague

CLERK

App. 15

33 U.S.C. § 131l(a). Effluent limitations

(a) Illegality of pollutant

discharges except in compliance with law

Except as in compliance with this

section and sections 1312, 1316, 1317,

1328, 1342, and 1344 of this title, the

discharge of any pollutant by any person

shall be unlawful.

App. 16

aa 2.8.C. S 1319(c). Enforcement

(2)

x k &

Knowing violations

Any person who —

(A) Knowingly violates section

AJil, L312, A340, 1317, L3is,

1321(b)(3), 1328, or 1345 of this

title, or any permit condition or

limitation implementing any of such

sections in a permit issued under

section 1342 of this title by the

Administrator or by a State, or any

requirement imposed in a

pretreatment program approved under

section 1342(a)(3) or (b)(8) of this

title or in a permit issued under

section 1344 of this title by the

Secretary of the Army or by a State;

or

(B) Knowingly introduces into

a sewer system or into a publicly

App. 17

owned treatment works any pollutant

or hazardous substance which such

person knew or reasonably should

have Known could cause personal

injury or property damage or, other

than in compliance with all

applicable Federal, State, or local

requirements or permits, which

causes such treatment works’ to

violate any effluent limitation or

condition in a permit issued to the

treatment works under section 1342

of this title by the Administrator

or a State;

shall be punished by a fine of not less

than $5,000 nor more than $50,000 per day

of violation, or by imprisonment for not

more than 3 years, or by both. If a

conviction of a person is for a violation

committed after a first conviction of

such person under this paragraph,

App. 18

punishment shall be by a fine of not more

than $100,000 per day of violation, or by

imprisonment of not more than 6 years, or

by both.

App. 19

33 U.S.C. § 1342(a). National pollutant

discharge elimination system

(a) Permits for discharge of pollutants

(1) Except as provided in sections

1328 and 1344 of this title, the Admin-

istrator may, after opportunity for pub-

lic hearing, issue a permit for the dis-

charge of any pollutant, or combination

of pollutants, notwithstanding section

131ll(a) of this title, upon condition

that such discharge will meet either (A)

all applicable requirements under

sections i31i, i384, i216, i317, i318,

and 1343 of this title, or (B) prior to

the taking of necessary implementing

actions relating to all such

requirements, such conditions as_ the

Administrator determines are necessary to

carry out the provisions of this chapter.

(2) The Administrator shall

prescribe conditions for such permits to

App. 20

assure compliance with the requirements

Of paragraph (1) of this’ subsection,

including conditions on data and

information collection, reporting, and

such other requirements as he deems

appropriate.

-(3) The permit program of the

Administrator under paragraph (1) of this

subsection, and permits issued

thereunder, shall be subject to the same

terms, conditions, and requirements as

apply to a State permit program and

permits issued thereunder under

subsection (b) of this section.

(4) All permits for discharges into

the navigable waters issued pursuant to

section 407 of this title, shall be

deemed to be permits issued under this

subchapter, and permits issued under this

subchapter shall be deemed to be permits

issued under section 407 of this title,

App. 21

and shall continue in force and effect

for their term unless revoked, modified,

or suspended in accordance with the

provisions of this chapter.

(5) No permit for a discharge into

the navigable waters shall be issued

under section 407 of this title after

October 18, 1972. Each application for a

permit under section 407 of this title,

pending on October 18, 1972, shall be

deemed to be an application for a permit

under this section. The Administrator

shall authorize a State, which he

determines has the Capability of

administering a permit program which will

Carry out the objective of this chapter,

to issue permits for discharges into the

navigable waters within the jurisdiction

of such State. The Administrator may

exercise the authority granted him by the

preceding sentence only during the period

App. 22

which begins on October 18, 1972, and

ends either on the ninetieth day after

the date of the first promulgation of

guidelines required by section 1314(i)(2)

of this title, or the date of approval by

the Administrator of a permit program for

such State under subsection (b) of this

section, whichever date first occurs, and

no such authorization to a State shall

extend beyond the last day of such

period. Each such permit shall be

subject to such conditions as_ the

Administrator determines are necessary to

carry out the provisions of this chapter.

No such permit shall issue if the

Administrator objects to such issuance.

App. 23

ae Ush.€. § 1362. Definitions.

(12) The term "discharge of a

pollutant" and the term "discharge of

pollutants" each means (A) any addition

of any pollutant to navigable waters from

any point source, (B) any addition of any

pollutant to the waters of the contiguous

zone or the ocean from any point source

other than a vessel or other floating

craft.

App. 24

UNITED STATES DISTRICT COURT FOP THE

SOUTHERN DISTRICT OF WEST VIRG.NIA

JULY 24 1991, GRAND JURY SESSION 90-2

CHARLESTON

UNITED STATES OF AMERICA

Vv. CRIMINAL NO. 5:91-00225-02

33 U.S.C. § 13i9(C)C2)

LEWIS R. LAW

MINE MANAGEMENT, INC.

INDICTMENT

The Grand Jury Charges:

INTRODUCTION

At all times material to this

indictment:

1. Defendant MINE MANAGEMENT, INC.

was a corporation incorporated under the

laws of the State of West Virginia.

Y Defendant LEWIS R. LAW was the

President of MINE MANAGEMENT, INC., and

controlled the business affairs of MINE

MANAGEMENT, INC..

App. 25

ae In approximately April or May,

1980 MINE MANAGEMENT, INC. purchased the

surface rights to a tract of land of

approximately 241 acres located at

Summerlee, Fayette County, West Virginia.

A coal refuse pile, also known as a gob

pile, was, and still is, located on the

property, covering approximately 20 acres

of ground. Water coliects in and around

the coal refuse pile. The water, as a

result of percolating through the coal

refuse pile, becomes very acidic, and

contains high concentrations of iron and

manganese. The acid water then

discharges, or leaches, out of the coal

refuse pile. Prior to the purchase by

MINE MANAGEMENT, INC. of the property in

1980, acid water discharges from the coal

refuse pile were treated by a treatment

system comprised of a series of

settlement/treatment ponds, which

App. 26

included a pump, which was used to

neutralize the acid in the water and to

remove iron and manganese from the water,

before the water was finally discharged

into Arbuckle Creek.

4. Since 1980 and continuing to

the present, on numerous and frequent

occasions, defendants LEWIS R. LAW and

MINE MANAGEMENT, INC. have knowingly

failed to maintain and operate the

existing treatment system and thereby

caused, and allowed the discharge of

pollutants, that -< ¥ acid water

containing high levels of iron and

manganese, into Arbuckle Creek and into

Wolf Creek, tributaries of the New River.

Defendants LEWIS R. LAW and MINE

MANAGEMENT, INC. have knowingly caused

and allowed discharge of these pollutants

in the following ways: (1). failing to

operate the treatment system described

App. 27

ee LEC ll

above; (2) failing to chemically treat

the acid water discharges from the coal

refuse pile; (3) failing to operate and

maintain a pump necessary for the

treatment system to operate effectively;

and (4) failing to properly and

adequately maintain the impoundment

Surrounding the coal refuse pile. As a

result of defendants' actions and

failures to act, acid water containing

iron and manganese has, and continues, to

discharge into the headwaters of Wolf

Creek and Arbuckle Creek.

3. The acid water containing high

levels of iron and manganese described

above is a pollutant within the meaning

of the Federal Clean Water Act, 33 U.S.C.

§ 1362(6).

6. Wolf Cresk and Arbuckle Creek

are navigable waters of the United States

App. 28

within the meaning of the Federal Clean

Water Act, 33 U.S.C. § 1362(7).

Ve Under the Federal Clean Water

Act, § - is illegal to discharge a

pollutant into a water of the United

States either without, or in violation of

the terms of, a National Pollution

Discharge Elimination System (NPDES)

permit issued by the United States or a

State. 33 U.S.C. §§ 1311(a) and 1342.

8. Defendants LEWIS R. LAW and

MINE MANAGEMENT, INC. never obtained a

National Pollution Discharge Elimination

System permit authorizing the discharge

of acid water containing high levels of

iron and manganese, or any other

pollutant, into Wolf Creek or Arbuckle

Creek.

9. On or about the dates set forth

below, at or near Summerlee, Fayette

County, West Virginia, and within the

App. 29

Southern District of West Virginia,

defendants LEWIS R. LAW and MINE

MANAGEMENT, INC. knowingly discharged

pollutants, that is, acid water with a pH

level less than or equal to 4.0 and

containing high levels of iron and/or

manganese, from point sources, into

navigable waters of the United States, as

set forth below, that is, Wolf Creek

and/or Arbuckle Creek, without a National

Pollution Discharge Elimination System

Permit, in violation of Title 33, United

States Code, Sections 1311 and 1342 as

follows;

ALL IN VIOLATION OF TITLE 33, UNITED

STATES CODE, SECTION 1319 (c)(2).

Count Date Stream

One March 5, 1987 Wolf Creek

Two March 5, 1987 Arbuckle Creek

Three July 6, 1987 Arbuckle Creek

Four October 28, 1987 Wolf Creek

App. 30

Five

Six

Seven

Eight

Nine

Ten

Eleven

Twelve

Thirteen

Fourteen

Fifteen

Sixteen

Seventeen

Eighteen

1988 Wolf Creek

January 26,

January 26, 1988 Arbuckle Creek

January 16, 1990 Wolf Creek

January 16, 1990 Arbuckle Creek

April 9, 1990 Wolf Creek

April 9, 1990 Arbuckle Creek

July 24, 1990 Wolf Creek

July 24, 1990 Arbuckle Creek

y

November 28, 1990 Woif Creek

January 30, 1991 Wolf Creek

January 30, 1991 Arbuckle Creek

April 11, 1991 Wolf Creek

May 31, 1991 Wolf Creek

May 31, 1991 Arbuckle Creek

A True Bill.

Foreperson

MICHAEL W. CAREY

United States Attorney

By:

Assistant United States Attorney

App. 31

Joint App., Vol. 2, p. 535 (4th Cir. )

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

REGION III

6th AND WALNUT STREETS

PHILADELPHIA, PENNSYLVANIA 19106

August 10, 19765

Mr. Donald M. Reedy

Vice President

Planning and Development

The New River Company

Lock Drawer No. 711

Mount Hope, West Virginia 25880

Dear Mr. Reedy:

In reference to your letter dated July

27, 1976, we have checked our records to

see whether the permit No. WV 0000493 has

been issued. Our records definitely show

that the permit was issued to your

Company on June 30, 1976. We have a

receipt indicating that your Company

received the permit. As long as your

Company is in operation and discharging,

App. 32

you are required to have a permit. Once

you stop discharging and the facility

shuts down, then you would no longer

require a permit. You would then be

required to submit a letter of

cancellation informing us that the

Company is no longer discharging.

Enclosed is a copy of the permit and

Discharge Monitoring Reports. If I may

be of further assistance please feel free

to contact me at (215) 597-9902.

Sincerely yours,

Lawrence H. Benning, P.E.

Chief, West Virginia

Industrial Section

Enforcement Division

App. 33

Joint App., Vol. 1, pp. 169-170; Excerpts

of Trial Transcript

Q Did Mine Management ever do anything

that precipitated any water

discharge from that property?

A The discharge was there when they

purchased the property.

Q Right. Did they ever do anything

that caused any discharge of water

from the property?

A Additional discharges?

Q Yes.

A wo, @ar.

App. 34

Joint App., Vol. 1, pp. 246-247; Excerpts

of Trial Transcript

Q All right. Now, while you were

working in that area, did you find

any auger holes?

A On the south side -- I think it

would be the south side. I ain't

got a map, so, but it was on the

Side of the mine, the mine and the

company store and all that. It was

on that side right there. So, to

me, that would be on the south side.

Q That's the side that would face down

upon this gob pile I'm talking

about?

A Right.

Q All right. And can you tell us what

you found in those auger holes?

A Water.

App. 35

And what was the surface around

those auger holes? What did it look

like?

It was -- well, we had to brush the

bottom seam, which, where the deep

mines and the auger holes were to

put our dirt that we were stripping

off the upper seam. That's where

the dirt went. And where there was

so much water flowage and mud down

there, we just, you kKnow, it was

almost impossible to clean up. But

that was the reason for, to put the

dirt, you Know, on the lower seam to

rec.aim it.

All right. But where the water came -

out of these old auger holes, what

color was the ground?

Red, had a red tint ever where the

water flowed.

App. 36

And how far above this particular

gob pile was that?

I'm going to say three hundred feet,

two hundred.

All right, sir, thank you.

App. 37

Joint App., Vol. 2, p. 290; Excerpts

of Trial Transcript

Q And would you say that five hundred

fifteen parts per million of iron in

that water is worse than 2.17 parts

per million?

A Yes. But, here again, as I say, the

water above would definitely be

diluted during wet weather

conditions by surface water which

seeps down those two hollows.

Q Okay, I must have misunderstood your

testimony. I thought you said that

the water above that was tested by

Esmer & Associates was probably the

source of this water in the pond and

that the pile had no effect on it.

Is that, was that not your opinion?

A My opinion is that the water which

is causing the pollution is

App. 38

Originating from the acid mine

drainage above and is actually the

water which generates the head

waters of these two streams which

come under the refuse pile and that

they are polluted at their source

before they ever reach the property

or the coal refuse pile.

App. 39

FILING AND MAILING CERTIFICATE

I hereby certify that on this 19th day of

January, 1993, I filed via certified mail 40 copies

of a Petition for Writ of Certiorari with the

Clerk’s Office of the Supreme Court of the United

States and further certify that I mailed via first

class mail, postage prepaid, the required three (3)

copies to Solicitor General, Department of Justice,

Washington, D.C. 20530 and Michael W. Carey,

United States Attorney, P.O. Box 3234,

Charleston, WV 25332.

The necessary filing and mailing was

performed in accordance with the instructions |

given me by counsel in this case. |

Fa

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