`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
`AT BLUEFIELD
`
`OHIO VALLEY ENVIRONMENTAL COALITION,
`WEST VIRGINIA HIGHLANDS CONSERVANCY,
`APPALACHIAN VOICES, and
`THE SIERRA CLUB
`
`Plaintiffs,
`
`v.
`
`BLUESTONE COAL CORPORATION,
`
`Defendant.
`
` CIVIL ACTION NO. 1:19-00576
`
`MEMORANDUM OPINION AND ORDER
`Pending before the court are plaintiffs’ motion for partial
`summary judgment, (ECF No. 54), and defendant’s motion for
`summary judgment. (ECF No. 56.) For the reasons that follow,
`plaintiffs’ motion for partial summary judgment is GRANTED in
`part and DENIED in part, and defendant’s motion for summary
`judgment is DENIED.
`I.
`Factual and Procedural Background
`A. The 2016 Consent Decree
`Defendant Bluestone Coal Corporation (“defendant”) is a
`subsidiary of Southern Coal Corporation (“SCC”), (ECF No. 9), and
`is therefore subject to the Consent Decree entered against SCC by
`the U.S. District Court for the Western District of Virginia on
`December 19, 2016. (ECF No. 8, Ex. 1.) The Consent Decree
`applies to all "facilities" and "future facilities" of SCC and
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`therefore includes the Red Fox Surface Mine, which is owned and
`operated by defendant. (ECF No. 8, Ex. 1 ¶¶ 7, 14.dd, 14.gg.)
`The Consent Decree sets forth a scheme of stipulated penalties
`for violation for effluent limit exceedances (daily, monthly or
`quarterly, as required by permits), failures to sample, reporting
`violations, non-compliance with terms of the Consent Decree, and
`for persistent non-compliance. (See ECF No. 8, Ex. 1 ¶¶ 84-96.)
`SCC must calculate stipulated penalties for violations, which are
`then included in the quarterly reports, and which must be paid by
`the date the quarterly reports are submitted. Those penalties as
`a non-exclusive remedy that would qualify for an offset against
`any statutory penalties that are subsequently assessed. (Id. Ex.
`1 ¶¶ 84–102.) The Consent Decree also contained a provision that
`“[t]his Consent Decree does not . . . limit the rights of third
`parties, not party to this Consent Decree, against Defendants,
`except as otherwise provided by law.” (Id. Ex. 1 ¶ 128.)
`
`B. Red Fox Mine violations in the Consent Decree
`The Consent Decree only adjudicated and prosecuted the
`violations of permit limitations identified in Appendix F. (Id.
`Ex. 1 ¶ 122; see also ECF No. 11, Ex. C (relevant excerpts of
`Appendix F).) Identified within Appendix F were a set of
`violations of West Virginia National Pollution Discharge
`Elimination System (“NPDES”) Permit No. WV1006304 at defendant’s
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`Red Fox Surface Mine. (ECF No. 11, Ex. C.) Those violations
`occurred between April 2011 and June 2015, and included some
`violations of specific permit limitations at Red Fox Mine Outlets
`001-008, 020, and 046, but the Consent Decree did not list or
`include any violations of the permit limitations for selenium at
`Outlets 005-008 chiefly at issue in this case. (See id.) Thus,
`there is no overlap between the violations prosecuted in the 2016
`Consent Decree and those alleged in the present action.
`The Red Fox Mine operates under WV/NPDES Permit WV1006304 and
`WV/SMCRA Permit S007282. (See ECF No. 9, Ex. 2.) The West
`Virginia Department of Environmental Protection (“WVDEP”) renewed
`that permit on March 12, 2014, for a five-year term ending on
`August 13, 2018. (ECF No. 55, Ex. B.) WVDEP has
`administratively extended the permit until August 13, 2020. (Id.
`Ex. C.) At the time the Consent Decree was entered, defendant’s
`WV/NPDES Permit No. WV1006304 did not contain a numerical
`effluent limit for selenium at Outlets 005-008. (See ECF No. 11,
`Ex. E.) Instead, the permit only contained a compliance schedule
`for selenium at those outlets. (See id. Ex. E.) That schedule
`was imposed in a permit modification that the WVDEP issued on
`June 21, 2016. (Id. Ex. E.) Under that modification, defendant
`had to monitor and report the selenium concentration at those
`outlets until June 22, 2018, but on and after June 22, 2018,
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`defendant’s discharges at Outlets 005-008 had to comply with
`numerical effluent limits for selenium.1 (See id. Ex. E.)
`
`C. Defendant’s permit violations and plaintiffs’ suit
`According to its quarterly reports, defendant violated its
`monthly average selenium limit 60 times and its daily maximum
`selenium limit 78 times at Outlets 005, 006, 007, and 008 from
`July 2018 through March 2020. (ECF No. 54, Ex. F.) Defendant
`does not deny that that its discharges at these Outlets exceeded
`permitted levels for selenium discharge. (ECF No. 57.)
`On June 4, 2019, plaintiffs mailed notice of the violations
`and their intent to file suit in letters addressed to defendant,
`the EPA, OSMRE, and the WVDEP, as required by § 505(b)(1)(A) of
`the Clean Water Act (“CWA”), 33 U.S.C. § 1365(b)(1)(A), and §
`520(b)(1)(A) of the Surface Mining Control and Reclamation Act
`(“SMCRA”), 30 U.S.C. § 1270(b)(1)(A). After waiting the required
`sixty days, during which neither the EPA, OSMRE, and/or the WVDEP
`commenced an action to redress the alleged violations, on August
`6, 2019, plaintiffs filed the instant Complaint against defendant
`pursuant to the citizen suit provisions of the CWA, 33 U.S.C. §§
`1251 et seq., and SMCRA, 30 U.S.C. §§ 1270 et seq. Plantiffs’
`suit seeks declaratory and injunctive relief as well as civil
`penalties against defendant for selenium limit violations at
`1 Those limits are a monthly average of 4.7 μg/l and a daily
`maximum of 8.2 μg/l. (Id. Ex. E.)
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`Outlets 005-008 at the Red Fox Surface Mine. (ECF No. 1.) The
`court notes that the Complaint does not address or seek relief
`for defendant’s violations of its compliance schedule for
`construction of a selenium treatment system. (See ECF No. 1.)
` Defendant, through SCC, paid approximately $278,000 in
`stipulated penalties for those selenium effluent violations at
`Red Fox Mine occurring from July 2018 to June 30, 2019. (ECF No.
`9.) Defendant states it has also paid additional stipulated
`penalties for violations occurring after June 30, 2019. (ECF No.
`57.) However, defendant has paid no stipulated penalties for 40
`violations of the daily maximum selenium limit at Outlets 005-008
`from July 2018 through the first quarter of 2020. (See ECF No.
`58, Ex. A.)
`
`D. Denial of Motion to Dismiss
`Defendant filed a motion to dismiss on September 25, 2019,
`arguing that plaintiff’s suit was precluded by the Consent
`Decree. (See ECF Nos. 8, 9.) On June 3, 2020, this court
`entered its Memorandum Opinion and Order denying defendant’s
`motion to dismiss. (ECF No. 60.) The court held that the
`Consent Decree did not preclude plaintiffs’ suit because the
`Consent Decree was not being diligently prosecuted. The court so
`found for the following reasons: the Consent Decree was not
`designed to require compliance with the permit violations at
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`issue in plaintiffs’ Complaint; plaintiffs’ claims were not
`related in origin and were separate and distinct from the
`violations in the Consent Decree; the court was not convinced
`that the Consent Decree will ensure defendants’ compliance with
`its permit limits; and the Consent Decree did not remove
`defendant’s economic incentives to violate its permit limits at
`Outlets 005-008. (See id.) The court also found that plaintiffs
`possessed Article III standing, as injury-in-fact, causation, and
`redressability were all present. (See id.)
`
`E. Motions for Summary Judgment
`Plaintiffs filed a motion for partial summary judgment on May
`8, 2020. (ECF No. 54.) Plaintiffs contend that summary judgment
`is appropriate on the issues of statutory and constitutional
`standing, and on liability. (ECF No. 55.) Defendant did not
`file a brief opposing plaintiffs’ motion for partial summary
`judgment on either standing or liability.
`Defendant also filed a motion for summary judgment on May 8,
`2020. (ECF No. 56.) Defendant seeks summary judgment on the
`same grounds it argued in its motion to dismiss – that
`plaintiffs’ suit is precluded because the Consent Decree is being
`diligently prosecuted. Plaintiffs filed a response on May 22,
`2020, (ECF No. 58), and defendant filed its reply on May 29,
`2020. (ECF No. 59.) The arguments made in these briefs closely
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`follow the arguments set forth in the briefings on defendant’s
`motion to dismiss.
`I.
`Standard of Review for Summary Judgment
`In evaluating summary judgment motions, Rule 56(a) of the
`Federal Rules of Civil Procedure provides that “[t]he court shall
`grant summary judgment if the movant shows that there is no
`genuine issue as to any material fact and that the movant is
`entitled to judgment as a matter of law.” Material facts are
`those necessary to establish the elements of a party’s cause of
`action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
`(1986). A genuine issue of material fact exists if, in viewing
`the record and all reasonable inferences drawn therefrom in the
`light most favorable to the non-moving party, a reasonable juror
`could return a verdict for the non-movant. Id.
` The moving party has the burden of establishing that there
`is an absence of evidence to support the nonmoving party’s case.
`Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This burden
`can be met by showing that the nonmoving party has failed to
`prove an essential element of the nonmoving party's case for
`which the nonmoving party will bear the burden of proof at trial.
`Id. at 322. If the moving party meets its burden, then the non-
`movant must set forth specific facts that would be admissible in
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`evidence that demonstrate the existence of a genuine issue of
`fact for trial. Id. at 322-23.
`II. Summary Judgment Analysis
`A. Plaintiff’s motion for partial summary judgment
`i. Plaintiffs’ members’ standing
`To satisfy Article III's standing requirements, a plaintiff
`must show: (1) it has suffered an “injury in fact” that is (a)
`concrete and particularized and (b) actual or imminent, not
`conjectural or hypothetical; (2) the injury is fairly traceable
`to the challenged action of the defendant; and 3) it is likely,
`as opposed to merely speculative, that the injury will be
`redressed by a favorable decision. Friends of the Earth, Inc. v.
`Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000).
`Plaintiffs’ members can show all three requirements.
`Dustin White is a member of OVEC and Erin Savage belongs to
`Appalachian Voices and Sierra Club. Mr. White has visited the
`receiving streams several times over the last four or five years,
`including in December 2019, and intends to return in the future.
`(ECF No. 54, Ex. L, White Decl., ¶¶ 4, 12, 13.) Mr. White
`refrains from fishing in the streams because they are impaired by
`mine pollution. (Id., ¶ 14.) Ms. Savage has visited the
`receiving streams since 2014, including in 2019, and intends to
`return in the future. (ECF No. 54, Ex. M, Savage Decl., ¶¶ 9,
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`14, 16.) Her aesthetic enjoyment of those streams is lessened
`because she knows that the streams are listed as impaired for
`selenium, and that selenium can adversely affects the aquatic
`life and fish in the streams. (Id., ¶¶ 6-8, 10-11.)
`To establish injury-in-fact, “a plaintiff need only show
`that he [or she] used the affected area and that he [or she] is
`an individual for whom the aesthetic and recreational values of
`the area [are] lessened by the defendant’s activity.” Piney Run
`Preservation Ass’n v. County Com’rs of Caroll County, MD, 268
`F.3d 255, 263 (4th Cir. 2001) (internal quotation marks omitted;
`modification in original). Concerns about selenium pollution are
`sufficient to support a finding that a user of the affected
`stream has a particularized injury. See Ohio Valley Envtl.
`Coal., Inc. v. Consol of Kentucky, Inc., 2014 WL 1761938, at *14
`(S.D.W. Va. Apr. 30, 2014) (Chambers, C.J.). Here, plaintiffs’
`members use the streams into which defendant discharges and the
`downstream waters of the Tug River, and they have concrete
`aesthetic and recreational interests that are harmed by
`defendant’s selenium discharges. This satisfies the injury-in-
`fact requirement.
`To satisfy the traceability prong, the Fourth Circuit has
`explained that “a plaintiff ‘must merely show that a defendant
`discharges a pollutant that causes or contributes to the kind of
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`injuries alleged’ in the specific geographic area of concern.”
`Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204
`F.3d 149, 161 (4th Cir. 2000) (quoting Resources Defense Council,
`Inc. v. Watkins, 954 F.2d 974, 980 (4th Cir. 1992)). The
`traceability prong for standing is met when “declarants claim
`that the injuries resulted from elevated pollution in the same
`streams into which [defendant] discharge[s] pollutants including
`selenium.” Ohio Valley Envtl. Coalition v. Marfork Coal, 2013 WL
`4509601, at *5 (S.D.W. Va. Aug. 23, 2013) (Chambers, C.J.).
`Defendant’s own monitoring and reporting data show it is
`discharging excessive levels of selenium from Outlets 005-008.
`This satisfies the traceability requirement.
`Plaintiffs seek civil penalties for defendant’s violations,
`among other remedies such as an injunction requiring defendant to
`immediately comply with the effluent limitations within permit
`WV1006304. (See ECF No. 1.) The Supreme Court has made clear
`that civil penalties provide a valid form of redress. See
`Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
`528 U.S. 167, 185-86 (2000) (“To the extent that [civil
`penalties] encourage defendants to discontinue current violations
`and deter them from committing future ones, they afford redress
`to citizen plaintiffs who are injured or threatened with injury
`as a consequence of ongoing unlawful conduct.”). Thus,
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`plaintiffs’ claims are redressable because they seek a remedy
`that this court possesses the power to grant and which would
`redress their injuries “by abating current violations and
`preventing future ones.” Id. at 187 (2000).
`ii. Plaintiffs’ organizational standing
`An organization has representational standing when: (1) at
`least one if its members would have standing to sue in his or her
`own right; (2) the organization’s purpose is germane to the
`interests that it seeks to protect; and (3) there is no need for
`the direct participation of the individual members in the action.
`Gaston Copper Recycling, 204 F.3d at 155 (citing Hunt v.
`Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)).
`Three of the plaintiff organizations are represented by at
`least one member who would have standing to sue in his or her own
`right: Dustin White is a member of OVEC and Erin Savage belongs
`to Appalachian Voices and Sierra Club. (ECF No. 54, Ex. L, White
`Decl., ¶ 2; id., Ex. M, Savage Decl., ¶¶ 2–4.) Therefore, OVEC,
`Appalachian Voices, and Sierra Club satisfy the first prong of
`organizational standing. However, the court has reviewed the
`record and finds that it has not been provided any evidence that
`plaintiff organization West Virginia Highlands Conservancy has a
`member who would have standing to sue in his or her own right.
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`As to the second prong, the court finds that this suit is
`germane to the purposes of plaintiff organizations OVEC,
`Appalachian Voices, and Sierra Club. (See id., Ex. L, White
`Decl., ¶ 2; id., Ex. M, Savage Decl., ¶¶ 3–4.) The court finds
`that this suit is also germane to the purposes of plaintiff West
`Virginia Highlands Conservancy. (See ECF No. 1, ¶ 11.)
` Lastly, because this action is one for injunctive and
`declaratory relief and not for monetary damages, the nature of
`the redress supports the conclusion that individual members are
`not required to participate in the action. Cf. Ohio Valley
`Envtl. Coalition v. Fola Coal Co., 274 F. Supp. 3d 378, 387
`(S.D.W. Va. 2017) (Chambers, C.J.). All four organizational
`plaintiffs therefore satisfy the third prong for organizational
`standing.
`As there is no genuine issue as to any material fact as to
`standing regarding plaintiff organizations OVEC, Appalachian
`Voices, and Sierra Club, the court hereby GRANTS summary judgment
`on the issue of standing to plaintiff organizations OVEC,
`Appalachian Voices, and Sierra Club. However, because there is a
`genuine issue of material fact as to standing regarding plaintiff
`West Virginia Highlands Conservancy, the court hereby DENIES
`summary judgment on the issue of standing to plaintiff
`organization West Virginia Highlands Conservancy.
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`iii. Statutory standing
`As to statutory standing requirements, OVEC sent the
`required 60-day notice letter prior to filing suit under the CWA
`and SMCRA, and plaintiffs waited more than the required 60 days
`before filing the Complaint. Fola Coal, 274 F. Supp. 3d at
`387–88 (citing 33 U.S.C. § 1365(b)(1)(A); 30 U.S.C. §
`1270(b)(1)(A)); see also ECF No. 54, Ex. I, Becher Decl., ¶ 2.
`The notice letter alleged violations of both the selenium
`discharge limits and the construction schedule for the selenium
`treatment system. (Id., Ex. I, Becher Decl., Ex. 1.) Plaintiffs
`have shown that neither WVDEP nor EPA has filed the type of
`administrative or judicial enforcement action that has preclusive
`effect on this citizen suit. Plaintiffs therefore have statutory
`standing to sue and meet all jurisdictional requirements under
`both the CWA and SMCRA.
`Additionally, plaintiffs have satisfied the jurisdictional
`standard set forth in Chesapeake Bay Foundation, Inc. v. Gwaltney
`of Smithfield, 484 U.S. 49 (1987). In that case, the Supreme
`Court held that to invoke the jurisdiction of the federal courts,
`citizen plaintiffs must “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.” Id. at
`57. On remand from the Supreme Court, the Fourth Circuit held
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`that the plaintiffs could establish jurisdiction under this
`standard “either (1) by proving violations that continue on or
`after the date the complaint is filed, or (2) by adducing
`evidence from which a reasonable trier of fact could find a
`continuing likelihood of a recurrence in intermittent or sporadic
`violations.” Chesapeake Bay Found., Inc. v. Gwaltney of
`Smithfield, Ltd., 844 F.2d 170, 171–72 (4th Cir. 1988).
`Here, the present case satisfies the first test for proving
`ongoing violations. Plaintiffs’ complaint was filed on August 6,
`2019. (ECF No. 1.) Defendant’s reports show that it violated
`its selenium limits at Outlets 005-008 in every month from August
`2019 through February 2020. (ECF No. 54, Exs. D, E, F.)
`Defendant also has still not built the selenium treatment system
`that its permit requires. Accordingly, the risk of further
`violations has not been eliminated. See Gwaltney of Smithfield,
`844 F.2d at 172 (4th Cir. 1988). This court therefore has
`subject matter jurisdiction over defendant’s selenium permit
`violations from Outlets 005-008.
`iv. Liability under the CWA
`Summary judgment may be rendered on the issue of liability
`alone, although there may be an issue as to the remedy. Fed. R.
`Civ. P. 56(a). The Supreme Court has explained that “[w]here the
`record taken as a whole could not lead a rational trier of fact
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`to find for the non-moving party, there is no ‘genuine issue for
`trial.’” Matsushita Electric Industrial Co. v. Zenith Radio
`Corp., 475 U.S. 574, 587 (1986). Here, there are no genuine
`issues of material fact as to defendant’s liability.
`Enforcement of the Clean Water Act (“CWA”) is “intentionally
`straightforward.” United States v. CPS Chemical Co., Inc., 779
`F. Supp. 437, 442 (E.D. Ark. 1991). The CWA achieves the goal of
`expedited enforcement in two ways. First, it places the burden
`of measuring and reporting pollutant levels on permit holders.
`Enforcement is thus made easy and inexpensive because evidence of
`violations must be compiled and documented by the permit holders
`themselves. PIRG v. Elf Atochem, 817 F. Supp. 1164, 1178 (D.N.J.
`1993). Second, the CWA imposes strict liability for permit
`violations. Am. Canoe Ass’n v. Murphy Farms, 412 F.3d 536, 540
`(4th Cir. 2005) (“[T]he CWA creates a regime of strict liability
`for violations of its standards.”). A discharger’s culpability
`or good faith does not excuse a violation. CPS Chemical, 779 F.
`Supp. at 442. Consequently, a violation of a permit requirement
`by a discharger is an automatic violation of the CWA. PIRG v.
`Rice, 774 F. Supp. 317, 325 (D.N.J. 1991). As this court has
`observed, when determining liability under the CWA, “[a]ll the
`court . . . is called upon to do is compare the allowable
`quantities of pollution listed in the permits with the available
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`statistics on actual pollution.’” Ohio Valley Envtl. Coal., Inc.
`v. Hobet Min., LLC, 723 F. Supp. 2d 886, 896 (S.D.W. Va. 2010)
`(Chambers, J.).
`Defendant prepared and submitted the DMRs and quarterly
`reports on which plaintiffs base this motion. Federal and state
`regulations required defendant to certify under penalty of
`perjury that the monitoring results in its DMRs were accurate. 40
`C.F.R. §§ 122.22(b),(d); id. § 122.41(k)(1); W. Va. Code R. § 47-
`30-4.7.d. Defendant’s quarterly reports under the 2016 Consent
`Decree require the same certification. (ECF No. 8, Ex. 1.)
`Based on defendant’s own reported violations, the court finds
`that there is no genuine issue of material fact that defendant is
`liable for 60 violations of its monthly average limit for
`selenium and 78 violations of its daily maximum limit for
`selenium. (See ECF No. 54, Ex. F.)
`Each violation of a monthly average limit is treated as a
`violation for every day in the month in which the violation
`occurred, rather than as a single violation for that month.
`United States v. Smithfield Foods, Inc., 972 F. Supp. 338, 340
`(E.D. Va. 1997), aff’d, 191 F.3d 516, 527 (4th Cir. 1999).
`Defendant’s 60 monthly average violations therefore comprise
`1,826 days of violation. (See ECF No. 54, Ex. F.) Adding those
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`to defendant’s 78 days of violation of its daily maximum limit
`results in a total of 1,904 days of violation under the CWA.
`Defendant is also liable for violating the compliance schedule
`in its 2016 WV/NPDES permit for construction of a selenium
`treatment system. Section 1365(f) of the CWA defines an
`enforceable effluent standard or limitation as “a permit or
`condition thereof issued under section 1342 of this title.” 33
`U.S.C. §1365(f). Defendant’s WV/NPDES permit imposed a
`construction schedule for a selenium treatment system as an
`enforceable condition of its permit. See Locust Lane v. Swatara
`Twp. Auth., 636 F. Supp. 534, 539 (M.D. Pa. 1986) (“there is no
`reason to distinguish between effluent limitations and compliance
`schedules for purposes of § 1365”). Furthermore, the legislative
`history of the CWA provides that “citizens are granted authority
`to bring enforcement actions for violations of schedules or
`timetables of compliance . . . .” S. Rep. No. 414, 92nd Cong.,
`2d Sess., reprinted in 1972 U.S. CODE CONG. & AD. NEWS 3668, 3747.
`Each day that defendant violated the compliance schedule is an
`additional day of violation. Defendant has been in violation of
`the compliance schedule since at least the June 21, 2017 deadline
`to commence construction of a selenium treatment system. The
`court has no indication that, since the filing of plaintiffs’
`motion for summary judgment, defendant has commenced construction
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`of a selenium treatment system. Therefore, as of July 24, 2020,
`that constitutes 1,129 days of violation. Altogether then, there
`is no genuine issue of material fact that defendant is liable for
`3,033 days of violations of the CWA. For these reasons, the
`court hereby GRANTS summary judgment to plaintiffs on the issue
`of liability under the CWA.
`v. Liability under SMCRA
`Defendant’s violations of the selenium effluent limitations in
`its WV/NPDES permit are also violations of its state-issued
`Surface Mining Control and Reclamation Act (“SMCRA”) permit.
`Coal mines are also subject to regulation under SMCRA and the
`West Virginia Surface Coal Mining and Reclamation Act
`(“WVSCMRA”). The scheme under the SMCRA is somewhat different
`from the CWA, exhibiting greater deference to the states. See
`Bragg v. W.Va. Coal Ass'n, 248 F.3d 275, 293 (4th Cir. 2001).
`SMCRA was enacted to “strike a balance between the nation's
`interests in protecting the environment from the adverse effects
`of surface coal mining and in assuring the coal supply essential
`to the nation's energy requirements.” Id. at 288 (citing 30
`U.S.C. § 1202(a), (d) and (f)). To achieve these goals, SMCRA
`relies on “a program of cooperative federalism that allows
`States, within limit established by federal minimum standards, to
`enact and administer their own regulatory programs, structured to
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`meet their own particular needs.” Molinary v. Powell Mountain
`Coal Co., Inc., 125 F.3d 231, 234 (4th Cir. 1997) (citing Hodel
`v. Va. Surface Min. & Reclam. Ass'n, 452 U.S. 264, 289 (1981)).
`West Virginia’s federally-approved SMCRA standard provides
`that SMCRA permittees “shall not violate effluent limitations.”
`W. Va. Code R. § 38-2-14.5.b. A citizen may commence a citizen
`suit “against any other person who is alleged to be in violation
`of any rule, regulation, order or permit issued pursuant to
`[SMCRA].” 30 U.S.C. § 1270(a)(1). Although Bragg precludes
`plaintiffs from bringing a claim based upon the violations of
`federal regulations, plaintiffs may pursue a claim based on
`violations of state regulations passed pursuant to SMCRA, and
`therefore plaintiffs can enforce West Virginia’s SMCRA
`performance standard against WVSMCRA permittees, such as
`defendant. Ohio Valley Envtl. Coal., Inc. v. Apogee Coal Co.,
`LLC, 531 F. Supp. 2d 747, 760–64 (S.D.W. Va. 2008) (Chambers, J.)
`(allowing citizen plaintiffs to “pursue their claim based on
`violations of state regulations passed pursuant to SMCRA”).
`Summary judgment on liability may be granted under both
`statutes. See, e.g., Ohio Valley Envtl. Coal., Inc. v. Maple
`Coal Co., 808 F. Supp. 2d 868, 898-99 (S.D.W. Va. 2011)
`(Chambers, J.) (granting summary judgment to plaintiffs under
`both the CWA and SMCRA for violations of selenium limits in a
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`Case 1:19-cv-00576 Document 73 Filed 07/27/20 Page 20 of 21 PageID #: 1052
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`mining company’s WV/NPDES permit). There is no genuine issue of
`material fact that defendant is liable for 60 monthly average
`effluent limitation violations and 78 daily maximum effluent
`limitation violations, for a total of 138 SMCRA violations. For
`these reasons, the court hereby GRANTS summary judgment to
`plaintiffs on the issue of SMCRA liability.
`
`B. Defendant’s motion for summary judgment
`The court previously rejected defendant’s preclusion
`argument in its order denying defendant’s motion to dismiss.
`(See ECF No. 60.) The court has reviewed the briefings and the
`record and finds no valid reason to overturn its earlier
`judgment. The court again finds that the Consent Decree is not
`being diligently prosecuted as to selenium violations at Outlets
`005-008 at defendant’s Red Fox Surface Mine, and thus plaintiffs’
`suit is not precluded. The court therefore DENIES defendant’s
`motion for summary judgment for the reasons expressed in its
`earlier order. (See id.)
`
`C. Remaining Issues
`As the parties noted in the Integrated Pretrial Order, (ECF
`No. 68), if plaintiffs’ motion for partial summary judgment is
`granted, there will be no need to hear evidence on jurisdiction
`and liability, and the trial will be limited to the issues of the
`amount of civil penalties and the scope and timing of injunctive
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`relief. The court has herein so granted plaintiffs’ motion for
`partial summary judgment and denied defendant’s motion for
`summary judgment.
`Therefore, as the parties also identified in the Integrated
`Pretrial Order, there are two remaining contested issues of fact
`and law: 1) whether defendant should be assessed a civil penalty
`under the CWA for its violations of the terms and conditions of
`its WV/NPDES Permit, and if so, the appropriate amount; and 2)
`whether defendant should be enjoined to compel compliance with
`the CWA and SMCRA and be required to install selenium treatment
`systems at any or all outlets with continuing selenium
`violations, and, if so, the timeframe of the systems’ completion.
`I.
`Conclusion
`For the reasons expressed above, plaintiffs’ motion for
`partial summary judgment is GRANTED in part and DENIED in part,
`and defendant’s motion for summary judgment is DENIED.
`The Clerk is directed to send copies of this Memorandum
`Opinion and Order to all counsel of record.
`IT IS SO ORDERED this 27th day of July, 2020.
`
`Enter:
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`21
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`David A. Faber
`Senior United States District Judge
`
`