Ohio Valley Envtl. Coal. v. Elk Run Coal Co.

Decision Date04 June 2014
Docket NumberCivil Action No. 3:12–0785.
CourtU.S. District Court — Southern District of West Virginia
PartiesOHIO VALLEY ENVIRONMENTAL COALITION, West Virginia Highlands Conservancy and Sierra Club, Plaintiffs, v. ELK RUN COAL COMPANY, INC. and Alex Energy, Inc., Defendants.

24 F.Supp.3d 532

OHIO VALLEY ENVIRONMENTAL COALITION, West Virginia Highlands Conservancy and Sierra Club, Plaintiffs
v.
ELK RUN COAL COMPANY, INC. and Alex Energy, Inc., Defendants.

Civil Action No. 3:12–0785.

United States District Court, S.D. West Virginia.

Signed June 4, 2014.


24 F.Supp.3d 536

Derek O. Teaney, Joseph Mark Lovett, J. Michael Becher, Appalachian Mountain Advocates, Lewisburg, WV, James M. Hecker, Trial Lawyers for Public Justice, Washington, DC, for Plaintiffs.

L. Jill McIntyre, M. Shane Harvey, Robert G. McLusky, Matthew Scott Tyree, Christopher M. Hunter, Jackson Kelly, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, Chief Judge.

On December 3–4, 2013, the Court held a trial in this case regarding jurisdiction and liability,1 and the parties timely conducted post-trial briefing. As explained below, the Court FINDS that Plaintiffs have established statutory jurisdiction under both the Clean Water Act and the Surface Mining Control and Reclamation Act. The Court further FINDS that Plaintiffs have established, by a preponderance of the evidence, that each Defendant has committed at least one violation of its permits by discharging into Laurel Creek or Robinson Fork high levels of ionic pollution, which have caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable stream's aquatic ecosystem, in violation of the narrative water quality standards that are incorporated into those permits.

I. BACKGROUND

Plaintiffs bring this action pursuant to the citizen suit provisions of the Federal Water Pollution Control Act (“Clean Water Act” or “CWA”) and the Surface Mining Control and Reclamation Act (“SMCRA”). Plaintiffs allege that Defendants Elk Run Coal Company, Inc., (“Elk Run”) and Alex Energy, Inc., (“Alex Energy”) violated these statutes by discharging excessive amounts of ionic pollution, measured as conductivity and sulfates, into the waters of West Virginia in violation of their National Pollutant Discharge Elimination System (“NPDES”) permits and their West Virginia Surface Mining Permits. Before proceeding to the parties' arguments, the Court will first discuss the relevant regulatory framework.

The 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 Act prohibits the “discharge of any pollutant by any person” unless a statutory exception applies; the primary exception is the procurement of an 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

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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 under the authority of 33 U.S.C. § 1342(b). West Virginia received such approval, and its NPDES program is administered through the West Virginia Department of Environmental Protection (“WVDEP”). 47 Fed.Reg. 22363–01 (May 24, 1982). All West Virginia NPDES permits incorporate by reference West Virginia Code of State Rules § 47–30–5.1.f, which states 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].” This is an enforceable permit condition. Ohio Valley Envtl. Coal. v. Elk Run Coal Co., Inc., No. CIV.A. 3:12–0785, 2014 WL 29562, at *3, *6 (S.D.W.Va. Jan. 3, 2014).

Coal mines are also subject to regulation under the SMCRA, which prohibits any person from engaging in or carrying out surface coal mining operations without first obtaining a permit from the Office of Surface Mining Reclamation and Enforcement (“OSMRE”) or an authorized state agency. 30 U.S.C. §§ 1211, 1256, 1257. A state may receive approval to administer a state-run surface mining permit program under the authority of 30 U.S.C. § 1253. In 1981, West Virginia received conditional approval of its state-run program, which is administered through the WVDEP pursuant to the West Virginia Surface Coal Mining and Reclamation Act (“WVSCMRA”). W. Va.Code §§ 22–3–1 to –33; 46 Fed.Reg. 5915–01 (Jan. 21, 1981). Regulations passed pursuant to the WVSCMRA require permittees to comply with the terms and conditions of their permits and all applicable performance standards. W. Va.Code R. § 38–2–3.33.c. One of these performance standards requires that mining discharges “shall not violate effluent limitations or cause a violation of applicable water quality standards.” Id. § 38–2–14.5.b. Another performance standard mandates that “[a]dequate facilities shall be installed, operated and maintained using the best technology currently available ... to treat any water discharged from the permit area so that it complies with the requirements of subdivision 14.5.b of this subsection.” Id. § 38–2–14.5.c.

West Virginia's water quality standards are violated if wastes discharged from a surface mining operation “cause ... or materially contribute to” 1) “[m]aterials in concentrations which are harmful, hazardous or toxic to man, animal or aquatic life” or 2) “[a]ny other condition ... which adversely alters the integrity of the waters of the State.” Id. § 47–2–3.2.e, –3.2.i. Additionally, “no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.” Id. § 47–2–3.2.i.

II. CWA AND SMCRA CITIZEN SUIT REQUIREMENTS

As the Court ruled in its November 26, 2013, Memorandum Opinion and Order, ECF No. 87, 2013 WL 6190011, Plaintiffs have established constitutional standing. However, that Order did not address the three statutory requirements which must be established in order to properly bring a citizen's suit under the CWA and the SMCRA. Thus, the Court must address these requirements now.

Under the CWA and the SMCRA, no citizen suit may be commenced prior to the provision of sixty days' notice to the alleged violator, to the Administrator of the EPA (for CWA citizen suits) or the Secretary of the Department of the Interior (for SMCRA citizen suits), and to the state in which the alleged violation occurs.

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30 U.S.C. § 1270(b)(1)(A) ; 33 U.S.C. § 1365(b)(1)(A). Additionally, no such suit may be commenced if the state, the Administrator, or the Secretary has commenced and is diligently prosecuting its own civil action against the alleged violator to require the same compliance which is the aim of the citizen suit. See 30 U.S.C. § 1270(b)(1)(B) ; 33 U.S.C. § 1365(b)(1)(B) ; OVEC v. Maple Coal Co., 808 F.Supp.2d 868, 883 (S.D.W.Va.2011).

Plaintiffs sent a letter to the appropriate recipients which provided the necessary details for valid notice of suit on January 11, 2012.2 See Joint Exs. 1–3. This lawsuit was commenced over sixty days later, on March 20, 2012. See Compl., ECF No. 1. Plaintiffs represented at trial that they have received no information that any regulators—state or federal—have filed an action regarding these violations. See Tr. at 16. Defendants do not challenge Plaintiffs' contention that they have met the sixty days' notice and lack of diligent prosecution requirements. The Court thus finds that the CWA's and the SMCRA's notice and lack of diligent prosecution requirements have been met by Plaintiffs in this case.

The CWA's citizen suit provision also states,

[A]ny citizen may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation....

33 U.S.C. § 1365(a)(1) (emphasis added). The SMCRA's citizen suit provision states,

[A]ny person having an interest which is or may be adversely affected may commence a civil action on his own behalf to compel compliance with this chapter ... against any ... person who is alleged to be in violation of any rule, regulation, order or permit issued pursuant to this subchapter....

30 U.S.C. § 1270(a)(1) (emphasis added). The Supreme Court has interpreted the phrase “to be in violation” in this context to require “that citizen-plaintiffs allege a state of either continuous or intermittent violation—that is, a reasonable likelihood that a past polluter will continue to pollute in the future.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc. (“Gwaltney III ”), 484 U.S. 49, 57, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).3 “[A] good-faith allegation [of continuous or intermittent violation] ... suffice[s] for jurisdictional purposes....” Id. at 65, 108 S.Ct. 376.

The issue of what evidence must be shown for jurisdictional purposes is distinct from what evidence must be shown for a defendant to ultimately be held liable for violations of the CWA and the SMCRA. See Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd. (“Gwaltney IV ”), 844 F.2d 170, 171...

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