Ohio Valley Envtl. Coal. v. Lexington Coal Co., CIVIL ACTION NO. 3:19-0573

OHIO VALLEY EVIRONMENTAL COALITION,WEST VIRGINIA HIGHLANDS CONSERVANCY, APPALACHIAN VOICES,and SIERRA CLUB, Plaintiffs, v. LEXINGTON COAL COMPANY, LLC, Defendant.

CIVIL ACTION NO. 3:19-0573

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON DIVISION

March 22, 2021

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiffs' Motion for Partial Summary Judgment on Jurisdiction and Liability (ECF No. 21). For the following reasons, the Court GRANTS the Motion.

I. BACKGROUND

Plaintiffs, Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Appalachian Voices, 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. §§ 1251-1388, and the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. §§ 1201-1328. The Complaint claims that Defendant, Lexington Coal Company, is liable under: (1) CWA section 402 for violating its permit limitations on selenium discharges; (2) CWA section 401 for discharging high levels of ionic pollutants and causing biological degradation; and (3) SMCRA regulations for discharging those same ionic pollutants.¹ Two mines give rise to these claims: (1) Low Gap No. 2 Mine, in Mingo County, West Virginia (SMCRA Permit S401395 and WV/NPDES Permit WV1016288); and (2) No. 10 Mine, also located in Mingo County, West Virginia (SMCRA Permit S501501 and WV/NPDES Permit WV1020579).² Pls.' Exs. 1-4.

Plaintiffs now seek summary judgment on jurisdictional issues (standing) and liability. Defendant does not contest Plaintiffs' arguments on standing or liability. Rather, Defendant argues that the Court does not have jurisdiction because the suit is precluded by West Virginia Department of Environmental Protection ("DEP") administrative enforcement actions. After stating the standard of review, the Court will address Defendant's preclusion argument then Plaintiffs' jurisdictional and liability claims.

II. STANDARD OF REVIEW

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). Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, that party nonetheless must offer some "concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 256. The nonmoving party must satisfy this burden of proof by offering more than a mere "scintilla of evidence." Id. at 252.

1. Preclusion

Defendant argues that Plaintiffs' claims are precluded by section 309(g) of the Clean WaterAct, which provides that a state enforcement action bars citizen suits of the same claim if:

(ii) a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, or

(iii) the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law.

33 U.S.C. § 1319(g)(6)(A).

Defendant submits five documents from DEP to support this claim. Defendant's Exhibit 1 is an Order for Compliance at the Low Gap No. 2 Mine (Outlets 02, 17, 24, 59, and 60) dated November 18, 2018. Exhibit 2 amended this November order to add outlet 019. Exhibit 3 is an Order for Compliance at the No. 10 Mine (Outlets 001, 012, 031, 045, and 047) dated April 21, 2017. Exhibit 4 amended the April order to remove Outlets 045 and 047. Both orders contain findings that Defendant exceeded limitations on selenium discharges and ordered Defendant to submit a Plan of Action for compliance. Neither order penalized Defendant or its predecessors for these violations.

Exhibit 5 is a Civil Penalty Assessment Notice and Proposed Consent Order. These records propose penalties for Defendant's noncompliance at three mines, including the Low Gap No. 2 Mine. The notice expressly provides that Defendant "ha[s] the option of choosing not to enter into the Draft Consent Order." ECF No. 25-5 at 1.

Defendant argues that these orders preclude Plaintiffs' claims and deprive the Court of jurisdiction. However, Defendant's conclusion grossly exceeds the evidence presented in at least three ways. First, Defendant fails to explain how these administrative actions preclude Plaintiffs' SMCRA claims, which are premised on different regulations. Second, Defendant fails to explain how these actions (which found selenium-related violations) preclude Plaintiffs' claims arising from ionic pollutants. And third, the Orders of Compliance exclude a number of outlets includedin Plaintiffs' claims while the Proposed Consent Order omits the No. 10 Mine entirely. Therefore, to the extent that Plaintiffs' claims are broader than the scope of these orders, the Court concludes that they are not barred.

As to the claims that do overlap with DEP's prior actions, the Court finds that neither the Proposed Consent Order nor the Orders for Compliance meet the section 309(g) criteria. First, the Proposed Consent Order falls under section 309(g)'s exception authorizing citizen suits which predate the "commencement" of the administrative action. 21 U.S.C. § 1319(g)(6)(B). Plaintiffs' June 4, 2019 Notice of Intent to File Citizen Suit predates the DEP's December 2020 Proposed Consent Order by more than a year and a half.

Moreover, even if DEP "commenced" its assessment of penalties before Plaintiffs' Notice of Intent, the Proposed Consent Order does not satisfy section 309(g) because the DEP did not bring the Proposed Consent Order under "comparable" law. See 33 U.S.C. § 1319 (g)(6)(ii), (iii). As Plaintiffs argue, the Proposed Consent Order does not meet this requirement because West Virginia's penalty provisions are not comparable to the CWA.

In United States v. Smithfield Foods, Inc., 191 F.3d 516 (4th Cir. 1999), the Fourth Circuit affirmed the district court's ruling that the EPA's enforcement action was not precluded by section 309(g) because Virginia's enforcement scheme "did not give the Commonwealth authority to assess administrative penalties without the violator's consent." Smithfield Foods, 191 F.3d at 525. This Court has reached the same conclusion when contrasting West Virginia's administrative penalty provisions to the CWA. In Sierra Club v. Powellton Coal Co., LLC, Judge Copenhaver held that West Virginia law is "markedly different" from section 309(g) "because [it] does not provide for the assessment of administrative penalties without the violator's consent." 662 F. Supp. 2d 514, 530 (S.D. W. Va. 2009). Judge Copenhaver reasoned that this difference is significant"because W. Va. Code R. § 47-1-5.4 allows alleged violators to terminate administrative proceedings 'at any time and for any reason,' . . . . [and] provides violators with ample opportunity to attempt to avoid citizen suits by manipulation of the West Virginia administrative enforcement process." Id. at 530 (comparing W. Va. Code R. § 47-1-2.2 with 33 U.S.C. § 1319(g)(1)).

This Court agrees with Judge Copenhaver's application of Smithfield Foods and holds that West Virginia's administrative enforcement provisions are not comparable to the CWA because Defendant has the authority to reject the Proposed Consent Order and avoid civil penalties at any point and for any reason. Since Powellton Coal, West Virginia recodified W. Va. Code R. § 47-1-5.4 as W. Va. Code R. § 47-30B-5. However, alleged violators may still terminate the DEP's enforcement action "at any time and for any reason." W. Va. Code R. 47-30B-5.4. This authority is expressly stated in the notice attached to the Proposed Consent Order. The potential for abuse and manipulation of this authority undermines the purpose of the CWA, which does not require alleged violators to consent to penalties. Powellton Coal Co., 662 F. Supp. 2d at 530. Therefore, the Proposed Consent Order does not preclude the claims here.

As for the Orders of Compliance, the Court finds that these are final orders that cannot preclude Plaintiffs' claims because DEP did not impose monetary penalties. Section 309(g) only precludes citizen suits if the state has "issued a final order not subject to further judicial review and the violator has paid a penalty assessed . . . . " 33 U.S.C. § 1319(g)(6)(iii). Defendants do not allege that they have paid any penalties and there is no evidence to this effect in the orders. Accordingly, the Court concludes that no existing or final administrative action precludes this suit under section 309(g).

2. Plaintiffs' Claims

Plaintiffs seek summary judgment on their standing to bring suit as well as three causes ofaction. Bearing in mind that Defendant has not disputed Plaintiffs' arguments or presented any evidence to raise a dispute of material fact, the Court will now turn to Plaintiffs' evidence to confirm that they are entitled to judgment as a matter of law.

a. Plaintiffs have standing.

Federal courts do not have jurisdiction over a suit unless the plaintiff can establish standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Standing requires three elements: (1) an injury in fact that is both concrete and actual or imminent; (2) a causal connection between the injury and the defendant's alleged wrongdoing; and (3) a substantial likelihood that a favorable judgment will redress the injury. Id.

Plaintiffs have offered sufficient evidence to satisfy each of these elements. First, they have demonstrated that at least one of their members suffered concrete harm. They submit a declaration from Ms. Donna Branham, who has visited Ben Creek and Pigeon Creek since her childhood. According to her declaration, she has noticed that the creeks' conditions have since degraded. She described the creeks as "discolored" and containing "no visible aquatic life." Pls.' Ex. 15. These aesthetic and recreational harms are...