Southern Ohio Coal Co. v. Department of the Interior

No. 93-3878 (6th Cir. August 30, 1993)

The court grants a stay pending appeal with respect to that part of a preliminary injunction that barred the U.S. Environmental Protection Agency (EPA) from stopping a mine operator from pumping contaminated water into streams in the area surrounding the operator's flooded mine. The court denies the stay with respect to the Office of Surface Mining, Reclamation, and Enforcement. The court holds that pursuant to § 402(i) of the Federal Water Pollution Control Act (FWPCA), EPA is not prohibited from taking all action in this matter to enforce the Act. The stay will permit EPA to investigate and make findings concerning any alleged FWPCA violation and to act, only after making such findings, within its authority to stop the pumping if it finds a violation has occurred.

[The district court's decision granting the preliminary injunction is published at 24 ELR 20288.]

Counsel for Plaintiff
D. Michael Miller
Porter, Wright, Morris & Arthur
41 S. High St., 29th Fl., Columbus OH 43215
(614) 227-2000

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

Kennedy (before Jones and Ryan), JJ.:

[24 ELR 20189]

Order

The action arises out of the July 11, 1993, flooding of plaintiff's coal mine located in Meigs County, Ohio. Defendants appeal a preliminary injunction enjoining them from acting "to effect the cessation of pumping at Meigs 31 unless their respective parallel approved state agencies fail to act vigorously, expeditiously, and in accordance with law." They now seek a stay of the injunction pending appeal and move for expedited consideration of the motion for a stay. Plaintiff opposes expedited consideration, moves for a hearing on the motion and opposes the issuance of a stay pending appeal. The United Mine Workers Locals 1857 and 1886 move for leave to file a memorandum opposing the motion for a stay. Defendants have filed a motion for a stay pending appeal in the district court, but that court has not yet ruled on the motion.

The factors regulating whether a stay pending appeal should issue are: 1) whether the applicant has made a strong showing that he is likely to succeed on the merits; 2) whether the applicant will be irreparably injured absent a stay; 3) whether issuance of the stay will substantially injure the other interested parties; and 4) where the public interest lies. Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 [12 ELR 21472] (6th Cir. 1991); see State of Ohio, ex rel. Celebrezze v. NRC, 812 F.2d 288, 290 [17 ELR 20420] (6th Cir. 1987). Although a stay pending appeal ordinarily should be sought in the first instance in the district court, due to the exigent nature of the motion, the court will rule on the motion for a stay at this time. The court does not find, however, that oral argument is necessary.

Upon consideration of the materials submitted and in balancing the criteria set forth above, we conclude that the motion for a stay pending appeal should not be granted with respect to the Office of Surface Mining, Reclamation, and Enforcement ("OSM") but should be granted in part with respect to the United States Environmental Protection Agency ("USEPA"). Pursuant to 33 U.S.C. § 1342(i), the USEPA is not prohibited from taking all action in this matter to enforce the Clean Water Act. Thus, the district court erred in enjoining the USEPA from acting in any manner in this matter.

It is therefore ORDERED that 1) plaintiff's motion for a hearing is denied; 2) the motion of United Mine Workers Locals 1857 and 1886 to file a memorandum as amicus curiae is granted; 3) defendants' motion for expedited consideration of the stay motion and for an expedited appeal is granted; and 4) defendants' motion for a stay of the preliminary injunction pending appeal is granted in part and denied in part. The motion for a stay of the preliminary injunction with respect to OSM is denied. The motion for a stay of the preliminary injunction with respect to the USEPA is granted in part to permit the USEPA to investigate and make findings with respect to any alleged violation of the Clean Water Act, and thereafter to act in accordance with its statutory authority pursuant to 33 U.S.C. § 1319 if it finds that a violation has occurred. The USEPA is enjoined, however, from issuing an order requiring the immediate cessation of the pumping before making such findings.