Ohio Valley Environmental v. Apogee Coal Co.
| Decision Date | 24 January 2008 |
| Docket Number | Civil Action No. 3:07-0413. |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | OHIO VALLEY ENVIRONMENTAL COALITION, INC., and West Virginia Highlands Conservancy, Inc., Plaintiffs, v. APOGEE COAL COMPANY, LLC, and Hobet Mining, LLC, Defendants. |
Derek O. Teaney, Joseph Mark Lovett, Lewisburg, WV, for Plaintiffs.
Blair M. Gardner, L. Jill McIntyre, Robert G. McLusky, Jackson Kelly, Charleston, WV, for Defendants.
Pending before this Court is Defendant's Motion to Dismiss (Doc. 24) and a Supplemental Motion to Dismiss Hobet Mining, LLC for Lack of Subject Matter Jurisdiction (Doc. 38). A hearing was held on these motions, January 7, 2007. For the reasons explained below, the Motion to Dismiss (Doc. 24) is DENIED; the Supplemental Motion to Dismiss (Doc 38) is DENIED without prejudice.
Plaintiffs brought suit alleging the illegal discharge of selenium from mining operations owned by defendants Apogee Coal Company, (Apogee) and Hobet Mining (Hobet) — both subsidiaries of Magnum Coal Company. Selenium is a naturally occurring element, commonly found in the environment. It becomes a problem only when it is, present in high concentrations. Excess selenium can harm the environment as it affects the reproductive cycle of aquatic species and may eventually damage gills and other organs.
Both the U.S. Environmental Protection Agency (EPA) and the West Virginia Department of Environmental Protection (DEP) have recognized the potentially harmful effects of selenium for some time. EPA promulgated the, first water quality criterion for selenium in 1987-5 micrograms per liter of water (5 µg/l) — a criterion subsequently adopted by DEP. This criterion is the allowable in-stream concentration of selenium, but is not itself a specific limit on individual dischargers of the pollutant. In 2003, a draft Programmatic Environmental Impact Statement on Mountaintop Removal Mining showed that mining operations in West Virginia could lead to a violation of the 5 µg/l standard.1 DEP's 2004 list of impaired streams recognized that some waters were, in fact, impaired because of selenium. As a result of the increased awareness of selenium problems in West Virginia, DEP began to include selenium limits in permits to individual dischargers whose effluent has a reasonable potential to lead to, selenium levels above the instream criterion.2
Both Apogee and Hobet hold permits regulating the discharge of selenium from their mine-sites. Plaintiffs contend that Defendants have each exceeded the selenium limits in their respective permits — WV1013599 for Apogee and WV1017225 for Hobet. Plaintiffs allege violations of both the federal Clean Water Act (CWA) and the federal Surface Mining Control and Reclamation Act (SMCRA). The backgrounds of the two permits are different and must be discussed individually.
On August 8, 2006 the DEP issued a renewal of permit WV1013599 to the predecessor of Apogee Coal; this permit was transferred to Apogee on September 12, 2006. Permit WV1013599 places limits on the amount of selenium the permit holder can discharge into five distinct tributaries of the Guyandotte River. Limits on the discharge of selenium were effective the date of issuance. Apogee's monthly average discharge was limited to 4.7 µg/l, and the daily maximum discharge to 8.2 Lµg/l. Plaintiffs contend that the discharge monitoring reports (DMR's) submitted by Apogee to DEP show violations of monthly average discharges. By Plaintiffs' count, Apogee violated the conditions of its permit 376 times between September 1, 2006 and December 31, 2006 (a violation of a monthly limit is considered a violation on each day of that month).
On January 31, 2007, DEP issued Apogee a compliance order which, stated, "[y]our permit is hereby modified to extend the compliance deadline for your final selenium effluent limitations for three (3) years from the effective date of this Order for outlets in Attachment A." (Mem. in Supp. of Def. Mot. To Dismiss Ex. A at 2). Essentially, this compliance order sought to reinstate "monitor and report only requirements" — without specific, limitations — that had been in place before the August 8, 2006 permit. Plaintiffs contend that this compliance order was not issued in accordance with the procedural requirements necessary to modify the Permit. Specifically, they argue that the compliance order was issued without any public notice and therefore without any chalice for the public to participate in the permitting process. As a result of this failure of notice, Plaintiffs argue that the attempted January 31 modification was ineffective and that the permit reissued on August 8 2006 legally controls. Plaintiffs issued a Notice of Intent to sue (NOI) Apogee for violations of the CWA and SMCRA on March 22, 2007. According to Plaintiffs, Apogee continues to exceed the selenium limits specified in the August 8th permit.
On January 20, 2004, DEP issued a renewal of permit WV1017225 to the predecessor of Defendant Hobet Mining Co. The permit contained selenium limits that were to go into effect January 21, 2007, after a three year period under which Hobet to prepare for the new limitations. Permit WV1017225 targeted discharges into various tributaries to the Mud River (which is itself a tributary of the Guyandotte.) The, selenium limitations established in Hobet's permit were 4.7 µg/1 for day average and 8.2 µg/1 for monthly average. According to Plaintiffs' count, Hobet violated these limits at least 42 times between January 21, 2007 and March 31, 2007. Plaintiffs issued a NOI for these violations on March 2, 2007.
On April 5, 2007, DEP issued a compliance order to Hobet which stated, "[y]our permit is hereby modified to extend the compliance deadline for your final selenium effluent limitation for three (3) years from the effective date of this Order for those outlets in Attachment A." (Mem. in Supp. of Def. Mot. To Dismiss Ex. B at 13). Again, this compliance order was intended to reinstate monitor and report only requirements for selenium that had been in effect before the January 21, 2007 limits.
Plaintiffs argue that this compliance order, too, was issued without proper regard for' administrative procedure. Specifically, they, argue that although DEP gave, some public notice, the notice was insufficient under the law. They contend that the compliance order was ineffective and that the January 21, 2007 limits remain applicable. Hobet continues to exceed these limitations,
In a supplement to their motion to dismiss, Defendants make a factual allegation which they contend eliminates this Court's subject matter jurisdiction over the case. According to Defendants, only outlets 1 and 2 of permit WV1017225 were ever subject to selenium effluent limitations (other outlets retained an obligation only to monitor and report). Outlets 1 and 2 were transferred to another Hobet surface mine, subject to a different NPDES permit. This transfer was through a "minor modification" as a result of Hobet's completion of mining and reclamation at the first permitted mine site. Defendants further claim that the new permit covering Outlets 1 and 2 is the subject of a DEP enforcement action in Boone County, West Virginia.
For their part, Plaintiffs contend that the' minor modification used to transfer outlets 1 and 2 to a different permit was illegal and ineffective. Consequently, they claim that outlets 1 and 2 should still be considered part of permit WV1017225 and part of the present lawsuit.
The compliance order DEP issued to Hobet on April 5, 2007 was one of over 80 identical orders that DEP, issued that day to coal operators holding permits with selenium effluent limits. Each of these orders purported to suspend selenium limits for the relevant permittee. The plaintiffs from this case (joined by one additional plaintiff) challenged 80 of those orders, through state-administrative channels, by filing appeals with the West Virginia Environmental Quality Board (EQB). Plaintiffs represent to this Court that none of the orders appealed to the EQB were issued, to Hobet and two orders distinct from that pertaining to this case were issued to Apogee. None of the EQB-appealed orders had effective selenium limits before the compliance orders were issued; there were no permit violations before the other orders were issued. The EQB conducted a hearing on 14 of the appealed orders on November 20, 2007 and stayed the appeal of 57 other orders. The EQB has not, however, resolved these claims on the merits.
Plaintiffs' complaint contains four counts upon which relief is requested. Count One complains of CWA Violations related to Apogee's WV1013599 permit. Count Two complains of SMCRA violations related to this same Apogee permit. Count Three complains of CWA violations of Hobet's WV1017225 permit. Count Four complains of SMCRA violations related to this same Hobet permit.
Defendants raise numerous defenses to the counts alleged by Plaintiffs. The first set of defenses are brought in a 12(b).(6) motion to dismiss for failure to state a claim upon which relief can be granted. Defendants bring up six issues regarding Plaintiffs' failure to state a claim under the CWA: 1) Plaintiffs have failed to exhaust administrative remedies; 2) Plaintiffs cannot state a claim because final effluent limitations are no longer in effect; 3) Plaintiffs' claims are not ripe for adjudication; 4) the Court should decline to exercise jurisdiction under the Burford abstention doctrine; 5) the Court should stay the case pursuant to the primary jurisdiction doctrine; and finally, 6) Plaintiffs are estopped from claiming that orders extending Defendant...
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