Sierra Club v. Hobet Mining Llc.

• Decision Date: 12 July 2010
• Docket Number: Civil Action No. 3:09-1167.
• Citation: 723 F.Supp.2d 886
• 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. HOBET MINING, LLC, Defendant.

723 F.Supp.2d 886

OHIO VALLEY ENVIRONMENTAL COALITION, INC., West Virginia Highlands Conservancy, Inc., and Sierra Club, Plaintiffs,

v.HOBET MINING, LLC, Defendant.

Civil Action No. 3:09-1167.

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

July 12, 2010.

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Derek O. Teaney, Joseph Mark Lovett, Lewisburg, WV, for Plaintiffs.

Blair M. Gardner, Christopher M. Hunter, Thomas J. Hurney, Jr., Jackson Kelly, Charleston, WV, for Defendant.

AMENDED MEMORANDUM OPINION AND ORDER ¹

ROBERT C. CHAMBERS, District Judge.

This suit, brought on October 23, 2009, and as amended November 9, 2009, seeks declaratory judgment and injunctive relief based on alleged violations of: (1) the effluent limits for selenium in WV/NPDES Permit 1022911, and (2) the performance standards and terms and conditions of surface mining permit S-5008-06. Pending before the Court are Plaintiffs Ohio Valley Environmental Coalition, Inc., West Virginia Highlands Conservancy, Inc., and Sierra Club's (“Plaintiffs”) Motion for Summary Judgment, Declaratory Relief, and Injunctive Relief (Doc. 7) and Defendant Hobet Mining LLC's (“Hobet”) Motion to Dismiss (Doc. 18).

In its motion, Hobet raised several arguments for dismissal, including: (1) Plaintiffs lacked standing; (2) the notice of intent was insufficient to establish subject matter jurisdiction; (3) Plaintiffs could not state a claim upon which relief could be granted because their Surface Mine Control and Reclamation Act (“SMCRA”) claims did not arise under the federal statute, but under state law; and (4) at a minimum, that the claims raised by Plaintiffs should be consolidated with those addressed in United States v. Patriot Coal Corporation (2:09-cv-0099). Hobet also contends that: (1) Plaintiffs cannot state a claim upon which relief can be granted because events in the Circuit Court of Boone County have rendered this action moot; (2) this action must be dismissed because Plaintiffs failed to join an indispensable party, the West Virginia Department of Environmental Protection (“WVDEP”); and (3) for prudential reasons, the Court should abstain from exercising its jurisdiction in accordance with Younger and Colorado River.

The Court addressed Hobet's arguments regarding standing, the notice of intent, Plaintiffs' SMCRA claims, and consolidation, in two prior decisions, issued on March 10, 2010, and March 29, 2010. In those decisions, the Court ruled in favor of Plaintiffs on each claim. See Docs. 34 & 36. Accordingly, the only remaining issues the Court must address before it can reach the merits of Plaintiffs' claims are: (1) whether the Court cannot (or should not) address Plaintiffs' claims because the issues have been adequately resolved by the Boone County Circuit Court, and (2) whether Plaintiff's action must be dismissed for failure to join an indispensable party, the WVDEP.

For the reasons set forth below, Plaintiffs' motion (Doc. 7) is GRANTED and Defendant's motion (Doc. 18) is DENIED. A hearing to address the scope and terms of the injunctive relief shall be held August 9, 2010, at 1:30 p.m. in Huntington.

Background

This is a citizen suit brought pursuant to 33 U.S.C. § 1365, the citizen suit provision of the Clean Water Act (“CWA”), and 30 U.S.C. § 1270, the citizen suit provision of SMCRA. Plaintiffs, three environmental groups suing on behalf of their members, seek declaratory judgment and injunctive relief for alleged violations of: (1) the effluent limitations contained in Defendant Hobet's WV/NPDES permit for its Surface Mine No. 22 (WV/NPDES Permit 1022911), and (2) performance standards under SMCRA and the terms and conditions of the surface mining permit for the No. 22 mine (WV SMCRA Permit Number S-5008-06).

At first glance, this case appears straightforward. A coal mining company is alleged to be in violation of an effluent limit in a National Pollution Elimination Discharge System (“NPDES”) permit for one of its surface mining operations, and a citizen group sues for declaratory judgment and injunctive relief. Thus, all that appears to be required is that the citizen group make a good-faith allegation that the defendant is in continuing violation of the CWA and SMCRA, see Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found. (“ Gwaltney ”), 484 U.S. 49, 64, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), and, if such violation is established, the company be held liable and injunctive relief imposed. See Student Pub. Interest Group of N.J. v. Monsanto, Co. (“ Student Pub. Interest ”), 600 F.Supp. 1479, 1483 (D.N.J.1985) ( “All the court ... is called upon to do is compare the allowable quantities of pollution listed in the permits with the available statistics on actual pollution.”); see also 33 U.S.C. § 1311(a).

This case is not so simple, however. Instead, as recognized by this Court in Ohio Valley Environmental Coalition, Inc. v. Hobet Mining, LLC (“ Hobet I ”), the enforcement of effluent limits found in NPDES permits for surface mining operations in West Virginia can be complicated. See No. 3:08-cv-0088, 2008 WL 5377799, at *4 (S.D.W.Va. Dec. 18, 2008) (“The timing of Plaintiffs' complaint, the posture of the case at the time of filing, and the final Consent Decree create a unique situation.”). Coal companies, and often individual NPDES permits, can be subject to a patchwork of federal, state and citizen-driven enforcement actions, such as Hobet and WV/NPDES Permit 1022911 are here.

I. Factual Background A. WV/NPDES PERMIT 1022911 AND SURFACE MINING PERMIT S-5008-06

In practical terms, the issuance of WV/NPDES Permit 1022911 and surface mining permit S-5008-06 allowed for the extension of Hobet's then-existing mining operations, along the border of Boone and Lincoln Counties, north and west. WV/NPDES Permit 1022911 and S-5008-06 are two of a number of permits held by Hobet in the area, where the company has mined coal-predominately by surface methods-since the 1970s. The area to the south and east of the permits, where Hobet has been mining for decades, is commonly referred to as Hobet's Surface Mine No. 21. Accordingly, the extension area covered by WV/NPDES Permit 1022911 and S-5008-06 is referred to as Surface Mine No. 22.

WV/NPDES Permit 1022911 was issued by the WVDEP on May 5, 2007. The permit regulates two “outlets” or “outfalls,” discharging pollutants into Berry Branch, a tributary of the Mud River. Below Berry Branch, the Mud River flows into the Mud River Reservoir. Thus, any pollutants discharged from the outfalls regulated under WV/NPDES Permit 1022911 ultimately flow into the Mud River Reservoir. The Mud River watershed is subject to a Total Maximum Daily Load (“TMDL”) for selenium of 5 g/l and the reservoir has been identified as an area of concern by the WVDEP because the water contains elevated levels of the pollutant.

When issued, WV/NPDES Permit 1022911 did not contain effluent limitations for selenium. Instead, the permit only contained monitoring and reporting requirements. Surface mining permit S-5008-06, however, does contain a “material handling plan” for selenium, which has been in place since its issuance. Under the plan, Hobet is required to: identify the geologic strata around its coal seams likely to leach selenium; isolate this strata by burial; and, therefore, prevent the leaching of selenium into the surrounding watersheds.

Effluent limits for selenium were added to WV/NPDES Permit 1022911 as the result of a negotiated settlement agreement in Ohio Valley Environmental Coalition, Inc. v. U.S. Army Corps of Engineers (3:08-cv-0979), a separate action brought by Plaintiffs before this Court. According to the settlement, Hobet agreed to request that the WVDEP modify WV/NPDES Permit 1022911 “as soon as possible to include water quality based effluent limits on selenium of 4.7 g/l monthly average and 8.2 g/l daily maximum.” Pls.' Exhibits (Doc. 8-3). In conformity with the settlement, Hobet made this request in August 2008 and WVDEP granted the request, modifying WV/NPDES Permit 1022911 to include selenium limits of 4.7 g/l monthly average and 8.2 g/l daily maximum, on October 28, 2008. These limits were effective immediately. In exchange for these immediately effective limits, Plaintiffs agreed not to seek civil penalties for any violations for one year from the effective date. Id. WV/NPDES Permit 1022911 is set to expire on May 31, 2012.

B. THE PATCHWORK OF ENFORCEMENT ACTIONS HOBET IS SUBJECT TO, IN STATE AND FEDERAL COURT

Hobet, a Patriot Coal Corporation (“Patriot Coal”) subsidiary, is subject to a number of enforcement actions under the CWA and SMCRA, including enforcement actions brought by citizen groups, the WVDEP, and even the U.S. Environmental Protection Agency (“EPA”). Each of these cases has some bearing on the instant litigation and, as a result, a brief review of the Hobet cases is appropriate.

First is United States v. Patriot Coal Corporation (2:09-cv-0099), an action pending before the Honorable John T. Copenhaver, Jr., in this District Court in Charleston. There, the EPA brought suit to enforce all effluent limitations (excepting those for selenium) contained in NPDES permits held by Patriot Coal subsidiaries in West Virginia. The case was filed on February 5, 2009, and resolved by consent decree on April 30, 2009. It warrants mentioning because it includes claims arising out of WV/NPDES Permit 1022911. However, the Patriot Coal case does not ultimately affect this Court's jurisdiction, because-as discussed in the Court's March 29, 2010 Order-it specifically excepts claims related to effluent limits for selenium. ² In addition to Patriot Coal, Hobet is (or has been) subject to several citizen suits before this Court, including Ohio Valley Environmental Coalition, Inc. v. Apogee Coal Company, LLC (“ Apogee ”) (3:07-cv-0413), filed on June 29,...