Ohio Valley Envtl. Coal., Inc. v. Alex Energy, Inc.
| Decision Date | 22 July 2014 |
| Docket Number | Civil Action No. 2:13–20571. |
| Citation | 34 F.Supp.3d 632 |
| Parties | OHIO VALLEY ENVIRONMENTAL COALITION, INC., West Virginia Highlands Conservancy, Inc., and, Sierra Club, Plaintiffs, v. ALEX ENERGY, INC., Defendant. |
| Court | U.S. District Court — Southern District of West Virginia |
Amy Vernon–Jones, Joseph Mark Lovett, Appalachian Mountain Advocates, Lewisburg, WV, for Plaintiff.
Christopher M. Hunter, M. Shane Harvey, Jackson Kelly, Charleston, WV, for Defendant.
Pending before the Court are Defendant's Motion for Summary Judgment (ECF No. 33) and Plaintiffs' Motion for Partial Summary Judgment (ECF No. 35). For the reasons explained below, Defendant's Motion is DENIED and Plaintiffs' Motion is GRANTED. The Court FINDS that Defendant is liable under all three Counts of Plaintiffs' Complaint.
Plaintiffs Ohio Valley Environmental Coalition, Inc. (“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. According to the Complaint, Defendant Alex Energy, Inc., holds WV/NPDES Permit WV1021907, which regulates certain mining activities, including operation of PGM Surface Mine No. 1 in Nicholas County, West Virginia. Compl. ¶ 10, ECF No. 1. The same WV/NPDES Permit also regulates Outfall 029, which is part of Defendant's Hardway Branch Surface Mine. Def.'s Resp. Opp'n Pls.' Mot. Partial Summ. J. at 6, ECF No. 38; WV/NPDES Permit WV1021907, ECF No. 35–2. Outfall 029 discharges into Hardway Branch of Twentymile Creek of the Gauley River. Compl. ¶ 39. WV/NPDES Permit WV1021907 does not explicitly, on its face, impose selenium limitations, but it does 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 water quality standards promulgated by [West Virginia Code of State Rules § 47–2].” Plaintiffs allege that Defendant's discharges from Outfall 029 contain excessive amounts of selenium and therefore violate the CWA and the SMCRA. Specifically, Count One alleges violation of the CWA, Count Two alleges violation of the SMCRA's performance standards regarding water quality, and Count Three alleges violation of the SMCRA's requirement that adequate treatment facilities be installed.
Defendant moves for summary judgment on Plaintiffs' claims. ECF No. 33; see also Def.'s Mem. Supp. Mot. Summ. J., ECF No. 34. Plaintiffs filed a Response in opposition, ECF No. 39, and Defendant filed a Reply, ECF No. 41. Plaintiffs move for partial summary judgment on the issue of liability as to their three claims for relief. ECF No. 35; see also Pls.' Mem. Supp. Mot. Partial Summ. J., ECF No. 36. Defendant filed a Response in opposition, ECF No. 38, and Plaintiffs filed a Reply, ECF No. 40. Both motions are now ripe for resolution.
Section II presents the legal standard applicable to motions for summary judgment. Section III examines the regulatory framework underlying Plaintiffs' citizen suit. Section IV briefly discusses Defendant's Motion for Summary Judgment. Lastly, Section V examines Plaintiffs' Motion for Partial Summary Judgment.
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 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 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). 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 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. 33 U.S.C. §§ 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. 33 U.S.C. § 1342. A state may receive approval to administer a state-run NPDES program pursuant to 33 U.S.C. § 1342(b). West Virginia received such 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 West Virginia Department of Environmental Protection (“WVDEP”).
All West Virginia 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 water quality 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. 1, 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 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. This incorporation by reference was in accordance with state rules, which require that the water quality standards rule of § 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., 966 F.Supp.2d 667 (S.D.W.Va.2013), this 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. Consol of Kentucky, Inc., No. 2:13–cv–5005, 2014 WL 1761938, at *3 (S.D.W.Va. Apr. 30, 2014) (); OVEC v. Alex Energy, Inc., 12 F.Supp.3d 844, 855–56, No. 2:12–cv–3412, 2014 WL 1329919, at *4 (S.D.W.Va. Mar. 31, 2014) (same); 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) (...
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