Ohio Valley Envtl. Coal., Inc. v. Alex Energy, Inc.
| Decision Date | 31 March 2014 |
| Docket Number | Civil Action Nos. 2:12–3412,2:13–6870. |
| Citation | 12 F.Supp.3d 844 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | OHIO VALLEY ENVIRONMENTAL COALITION, INC., et al., Plaintiffs, v. ALEX ENERGY, INC., et al., Defendants. |
OPINION TEXT STARTS HERE
Derek O. Teaney, Joseph Mark Lovett, J. Michael Becher, Appalachian Center for the Economy and the Environment, Lewisburg, WV, for Plaintiffs.
Aaron Heishman, M. Shane Harvey, Robert G. McLusky, Jackson Kelly, Charleston, WV, for Defendants.
Pending before the Court are seven motions for partial summary judgment: Plaintiffs' motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Jacks Branch Coal Company (ECF No. 83); Plaintiffs' motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Bandmill Coal Corporation (ECF No. 85); Defendants' motion for partial summary judgment (ECF No. 87); 1 Bandmill's motion for partial summary judgment (ECF No. 89); Plaintiffs' motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Aracoma Coal Company, Inc., Highland Mining Company, Independence Coal Company, Inc., and Kanawha Energy Company (ECF No. 91); Highland's motion for partial summary judgment (ECF No. 93); and Jacks Branch's motion for partial summary judgment (ECF No. 95). Also pending are Plaintiffs' Rule 37(c) motion to strike Exhibit 1 of Highland's reply brief in support of its motion for partial summary judgment (ECF No. 119) and Jacks Branch's motion for a partial stay pending entry of a consent decree (ECF No. 133).
For the reasons explained in this Memorandum Opinion and Order, the Court rules as follows:
1. The Court FINDS that the holders of permits which do not have selenium limits or monitoring and reporting requirements on their face must comply with West Virginia water quality standards, consistent with this Court's findings in Ohio Valley Environmental Coalition, Inc. [“OVEC”] v. Elk Run Coal Company, Inc., No. 3:12–cv–0785, 2014 WL 29562 (S.D.W.Va. Jan. 3, 2014), OVEC v. Fola Coal Company, LLC, No. 2:12–cv–3750, 2013 WL 6709957 (S.D.W.Va. Dec. 19, 2013), and OVEC v. Marfork Coal Company, Inc., 966 F.Supp.2d 667 (S.D.W.Va.2013).
2. The Court FINDS that the West Virginia Department of Environmental Protection (“WVDEP”) is not authorized to indefinitely suspend the requirement that permit holders comply with water quality standards. Therefore, the holders of permits which impose monitoring and reporting requirements for selenium but do not include future selenium limits explicitly on the face of the permits must comply with water quality standards.
3. The Court FINDS that the WVDEP is authorized to temporarily suspend the requirement that permit holders comply with water quality standards. Therefore, the holders of permits which impose present monitoring and reporting requirements for selenium and selenium limits that go into effect at a later date are not required to comply with water quality standards in the interim period between issuance of their permits and the effective date of the selenium limits.
4. The Court accordingly GRANTS in part and DENIES in part Defendants' motion for partial summary judgment (ECF No. 87), consistent with the above findings.
5. The Court FINDS that Bandmill's discharges are covered by its WV/NPDES Permit WV1015559 but also FINDS that Bandmill is liable for selenium violations at Outfall 001 of that permit. In accordance with these findings, the Court GRANTS in part and DENIES in part Plaintiffs'motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Bandmill (ECF No. 85). Specifically, the Court GRANTS the motion as to liability regarding Outfall 001 of this permit but DENIES as premature Plaintiffs' claims regarding the number of violations and for injunctive relief, declaratory relief, and civil penalties. The Court DENIES Plaintiffs' motion to the extent it asks this Court to find that Bandmill's discharges were made without a permit. The Court also GRANTS in part and DENIES in part Bandmill's motion for partial summary judgment (ECF No. 89).
6. The Court GRANTS in part and DENIES in part Plaintiffs' motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Aracoma, Highland, Independence, and Kanawha Energy (ECF No. 91). Specifically, the Court GRANTS the motion as to liability regarding: Outfalls 001 and 002 of Aracoma's WV/NPDES Permit WV1010689; Outfall 004 of Independence's WV/NPDES Permit 1016890; and Outfall 007 of Kanawha Energy's WV/NPDES Permit WV1015176. However, Plaintiffs' motion is DENIED regarding Outfalls 001 and 019 of Highland's WV/NPDES Permit WV1016938. The Court DENIES as premature Plaintiffs' claims regarding the number of violations and for injunctive relief, declaratory relief, and civil penalties. The Court DENIES Highland's motion for partial summary judgment (ECF No. 93) and DENIES as moot Plaintiffs' Rule 37(c) motion to strike Exhibit 1 of Highland's reply brief in support of its motion for partial summary judgment (ECF No. 119).
7. The Court GRANTS in part and DENIES in part Plaintiffs' motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Jacks Branch (ECF No. 83). Specifically, the Court GRANTS the motion as to liability regarding Outfalls 004, 014, and 015 of Jacks Branch's WV/NPDES Permit WV0093929 and Outfalls 002, 009, 011, and 014 of Jacks Branch's WV/NPDES Permit WV1012452. The Court DENIES as premature Plaintiffs' claims regarding the number of violations and for injunctive relief, declaratory relief, and civil penalties. The Court GRANTS Jacks Branch's motion for partial summary judgment as to Outfall 015 of Jacks Branch's WV/NPDES Permit WV1012452 (ECF No. 95). Also, the Court holds in ABEYANCE Jacks Branch's motion for a partial stay pending entry of a consent decree (ECF No. 133).
8. The Court DIRECTS the parties to file a report regarding the status of the remaining claims, plans for disposition of those claims, and plans for phase II of this litigation within twenty-one (21) days of the entry of this Memorandum Opinion and Order.
Plaintiffs OVEC, West Virginia Highlands Conservancy, Inc., and Sierra Club filed this case 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. They allege that Defendants violated these statutes by discharging excessive amounts of selenium into the waters of West Virginia. This case implicates nine WV/NPDES permits. Each permit is held by one of the seven Defendants: Alex Energy; Aracoma; Bandmill; Highland; Independence; Jacks Branch; and Kanawha Energy. Only some of the outfalls 2 covered by these permits are the subject of the pending motions for partial summary judgment.3
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 will summarize in Section IV the categories of permits involved in this case and determine the selenium requirements applicable to each permit. In Section V, the Court will analyze whether summary judgment should be granted as to each individual permit.
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2505. 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505.
“ ‘[W]here the moving party has the burden—the plaintiff on a claim for relief or the defendant on an affirmative defense—his 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 must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his 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.
One primary goal of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation's...
To continue reading
Request your trial