Ohio Valley Envtl. Coal., Inc. v. Consol of Ky., Inc., CIVIL ACTION NO. 2:13-5005
| Decision Date | 30 April 2014 |
| Docket Number | CIVIL ACTION NO. 2:13-5005 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | OHIO VALLEY ENVIRONMENTAL COALITION, INC., WEST VIRGINIA HIGHLANDS CONSERVANCY, INC., and SIERRA CLUB, Plaintiffs, v. CONSOL OF KENTUCKY, INC., Defendant. |
Pending before the Court are Plaintiffs' motion for partial summary judgment and for declaratory and injunctive relief and civil penalties (ECF No. 42) and Defendant's motion for summary judgment (ECF No. 44). For the reasons explained below, the Court GRANTS in part and DENIES in part Plaintiffs' motion for partial summary judgment and for declaratory and injunctive relief and civil penalties. Specifically, the Court GRANTS Plaintiffs' motion as to Defendant's liability for selenium violations but DENIES as premature, without prejudice, Plaintiffs' claims for declaratory and injunctive relief and civil penalties; those claims will be resolved in phase II of this litigation. The Court accordingly DENIES Defendant's motion for summary judgment, noting that it DENIES as premature, without prejudice, Defendant's arguments relating to Plaintiffs' claims for relief; arguments regarding mootness will be resolvedin phase II. The Court DIRECTS the parties to file a Rule 26(f) report regarding phase II of this litigation within twenty-one (21) days from the entry of this Memorandum Opinion and Order.
Plaintiffs Ohio Valley Environmental Coalition, Inc. ("OVEC"), West Virginia Highlands Conservancy, Inc., and Sierra Club filed this case on March 13, 2013, pursuant to the citizen suit provisions of the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"), 33 U.S.C. § 1251 et seq., and the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. § 1201 et seq. Plaintiffs allege that Defendant Consol of Kentucky, Inc., violated these statutes by discharging excessive amounts of selenium into the waters of West Virginia. Compl., ECF No. 1. Plaintiffs' Amended Complaint was filed on June 4, 2013. Am. Compl., ECF No. 19. Plaintiffs move for partial summary judgment, arguing that Defendant is liable under the CWA and the SMCRA for excessive selenium discharges from the Peg Fork Surface Mine. Defendant also moves for summary judgment, arguing that it is entitled to summary judgment in its favor on all of Plaintiffs' claims because 1) Plaintiffs have failed to establish standing and 2) Plaintiffs' claims are barred by the West Virginia Department of Environmental Protection's ("WVDEP") enforcement action against Defendant.
In Section II, the Court explains the legal standard applicable to motions for summary judgment. After discussing the relevant regulatory framework in Section III, the Court analyzes in Section IV whether Plaintiffs are barred from bringing this lawsuit because of the WVDEP's enforcement action. Plaintiffs' standing to pursue the relief sought is discussed in Section V. The Court examines Plaintiffs' provision of sixty days' notice and the Amended Complaint's good-faith allegations of continuous or intermittent violation of the CWA by Defendant in Sections VIand VII, respectively. In Section VIII, the Court assesses Plaintiffs' evidence of Defendant's liability.
To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the Court will not "weigh the evidence and determine the truth of the matter." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some "concrete evidence from which a reasonable juror could return a verdict in his [or her] favor." Anderson, 477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere "scintilla of evidence" in support of his or her position. Anderson, 477 U.S. at 252.
"'[W]here the moving party has the burden—the plaintiff on a claim for relief or the defendant on an affirmative defense—his [or her] showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.'" Proctor v. Prince George's Hosp. Ctr., 32 F. Supp. 2d 820, 822 (D. Md. 1998) (quoting Calderone v.United States, 799 F.2d 254, 259 (6th Cir. 1986)). "Thus, if the movant bears the burden of proof on an issue, . . . he [or she] must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his [or her] favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). Having discussed the standard for review of motions for summary judgment, the Court now turns to the regulatory framework underlying this lawsuit.
A primary goal of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To further this goal, the CWA prohibits the "discharge of any pollutant by any person" unless a statutory exception applies; the primary exception is the procurement of a National Pollutant Discharge Elimination System ("NPDES") permit. Id. §§ 1311(a), 1342. Under the NPDES, the U.S. Environmental Protection Agency ("EPA") or an authorized state agency can issue a permit for the discharge of any pollutant, provided that the discharge complies with the conditions of the CWA. Id. § 1342. A state may receive approval to administer a state-run NPDES program pursuant to 33 U.S.C. § 1342(b). West Virginia received approval of its state-run NPDES program in 1982. 47 Fed. Reg. 22363-01 (May 24, 1982). The State's NPDES program is currently administered by the WVDEP.
All West Virginia coal mining NPDES permits incorporate by reference West Virginia Code of State Rules § 47-30-5.1.f, which states, in part, that "discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable waterquality standards promulgated by [West Virginia Code of State Rules § 47-2]."1 States are required by the CWA to adopt water quality standards in order to "protect the public health or welfare, [and] enhance the quality of water," and such water quality standards "shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation." 33 U.S.C. § 1313(c)(2)(A). Each standard "shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." Id.
West Virginia's water quality standards promulgated for the protection of aquatic life impose limitations on selenium. Specifically, selenium cannot exceed an acute limitation of 20 ug/l or a chronic limitation of 5 ug/l. W. Va. Code R. § 47-2, app. E, tbl.2, div. 8.27. The acute limitation is defined as a "[o]ne hour average concentration not to be exceeded more than once every three years on the average." Id. § 47-2-9 n.1. The chronic limitation is a "[f]our-day average concentration not to be exceeded more than once every three years on the average." Id. n.2.
In OVEC v. Fola Coal Company, LLC, this Court was asked to determine whether holders of WV/NPDES permits that incorporate § 47-30-5.1.f by reference—but whichotherwise contain no specific limits on the discharge of selenium—are required to comply with the selenium limitations found in West Virginia's water quality standards. No. 2:12-cv-3750, 2013 WL 6709957, at *10-21 (S.D. W. Va. Dec. 19, 2013). The Court examined two permits held by Fola, neither of which identified selenium as a pollutant whose presence must be monitored or limited. Both permits, however, incorporated by reference the WV/NPDES Rules for Coal Mining and Facilities found in Title 47, Series 30, of the West Virginia Code, including § 47-30-5.1.f. The Court found that this incorporation by reference is in accordance with state rules, which require that the water quality standards rule found at § 47-30-5.1.f—among other rules—"be incorporated into the WV/NPDES permits either expressly or by reference." W. Va. Code R. § 47-30-5; Fola, 2013 WL 6709957, at *2. Relying in part on this Court's earlier decision in OVEC v. Marfork Coal Company, Inc., No. 5:12-cv-1464, 2013 WL 4506175 (S.D. W. Va. Aug. 22, 2013), the Court held that § 47-30-5.1.f was an explicit and enforceable condition of Fola's WV/NPDES permits and that Fola would not be protected by the permit shield defense2 if it violated this permit condition. Fola, 2013 WL 6709957, at *10-21; see also OVEC v. Elk Run Coal Company, Inc., No. 3:12-cv-0785, 2014 WL 29562, at *3-10 (S.D. W. Va. Jan. 3, 2014) ().
This case implicates Defendant's WV/NPDES Permit WV1023004, which regulates water pollution from Defendant's Peg Fork Surface Mine. WV/NPDES Permit WV1023004 incorporates by reference West Virginia Code of State Rules § 47-30-5.1.f. It is undisputed by the parties that this Court's holdings, as explained above, control the analysis of this permitprovision. Therefore, Defendant may be...
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