Southern Appalachian Mountain Stewards et al v. A & G Coal Corporation

Filing 77

OPINION and ORDER denying 70 Motion to Supplement Evidence in Support of its Motion for Summary Judgment; denying 51 Motion for Summary Judgment; granting 54 Motion for Summary Judgment. Signed by Judge James P. Jones on 7/22/13. (flc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
SOUTHERN APPALACHIAN
MOUNTAIN STEWARDS, ET AL.,
Plaintiffs,
v.
A&G COAL CORPORATION,
Defendant.

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Case No. 2:12CV00009
OPINION AND ORDER
By: James P. Jones
United States District Judge

Benjamin A. Luckett and Isak Howell, Appalachian Mountain Advocates,
Lewisburg, West Virginia, for Plaintiffs; Corinne E. Martin, Stites & Harbison,
PLLC, Nashville, Tennessee, and W. Blaine Early, III, Stites & Harbison, PLLC,
Lexington, Kentucky, for Defendant.
This civil action arises under the Federal Water Pollution Control Act,
commonly referred to as the Clean Water Act (“CWA”), 33 U.S.C.A. §§ 1251–1387

(West 2001 & Supp. 2012), and the Surface Mining Control and Reclamation Act
(“SMCRA”), 30 U.S.C.A. §§ 1201-1328 (West 2007 & Supp. 2012). The plaintiffs
allege that the defendant coal mining company, which is admittedly discharging
selenium from one of its surface mines, is violating the law because its permits do not
allow it to discharge that pollutant. The defendant asserts the so-called permit shield
as a defense, arguing that because the permitting agency chose not to include effluent
limits for the discharge of selenium in the defendant’s CWA permit, compliance with
the plain language of its valid permits protects it from liability for selenium

discharges. In other words, the defendant argues that because it has a valid permit
that says nothing about selenium, it can discharge selenium with impunity. The
plaintiffs counter that because the defendant did not disclose the potential for
selenium discharge in its permit application, it cannot avail itself of the permit shield.
Both parties have moved for summary judgment. For the reasons set forth below, I
find that the plaintiffs are entitled to relief.

I
After complying with the relevant statutory notice requirements, plaintiffs
Southern Appalachian Mountain Stewards, Sierra Club, and Appalachian Voices
commenced this action against defendant A&G Coal Corporation (“A&G”), seeking
declaratory and injunctive relief and civil penalties. The plaintiffs contend that A&G
is discharging selenium 1 from its Kelly Branch Surface Mine without express
authorization to do so, and is thus violating the CWA and SMCRA. 2
The following undisputed facts are taken from the summary judgment record.
The Kelly Branch Surface Mine is located in Wise County, Virginia, and is
owned and operated by A&G. The mine is regulated by SMCRA Coal Surface
1

Selenium is a naturally occurring element that may be harmful in high
concentrations to aquatic life. Surface mining operations may expose selenium-bearing
earth materials. See Sierra Club v. ICG Hazard, LLC, Civil No. 11-148-GFVT, 2012 WL
4601012, at *1 (E.D. Ky. 2012); Ohio Valley Envtl. Coal. v. Apogee Coal Co., 555 F.
Supp. 2d 640, 641-42 (S.D.W. Va. 2008).
2

A&G does not challenge the standing of the plaintiffs to bring this action and I
find from the allegations of the Complaint that they do have such standing.
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Mining Operation Permit 1102052, and the mine discharges pollutants into waterways
from outfalls subject to the effluent limitations of Virginia National Pollution
Discharge Elimination System (“VA/NPDES”) Permit 0082052, issued pursuant to
the CWA. The VA/NPDES permit places limits on the concentrations of certain
pollutants that A&G can discharge into waterways adjacent to the mine, including
Kelly Branch, Callahan Creek, and the tributaries of Kelly Branch and Callahan
Creek.

The VA/NPDES permit does not expressly authorize the discharge of

selenium from the Kelly Branch Surface Mine.

The permit includes certain

conditions, including the following:
Any and all product, materials, industrial wastes, and/or wastes
resulting from the purchase, sale, mining, extraction, transport,
preparation, and/or storage of raw or intermediate materials, final
product, by-product or wastes, shall be handled, disposed of, and [sic]
and/or stored in such a manner so as not to permit discharge of such
product, materials, industrial wastes, and/or other wastes to State waters,
except as expressly authorized herein.
(Pls.’ Exs. in Supp. Mot. Summ. J., Ex. 12 ¶ (p)(2), ECF No. 57-2.)
When A&G applied for its VA/NPDES Permit, it disclosed to the permitting
agency, the Virginia Department of Mining, Minerals, and Energy (“DMME”), that it
expected to discharge certain pollutants from its bituminous coal mining operation.
Selenium was not among the pollutants A&G disclosed in its application. According
to A&G, it neither knew nor had any reason to believe that it would discharge
selenium from the mine. Water samples taken by both the plaintiffs and A&G,
however, reveal that the Kelly Branch Surface Mine is in fact discharging selenium
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from two artificial ponds at the mine site. 3 The record contains evidence that DMME
was generally aware of elevated selenium levels in the geographic area at the time
A&G submitted its permit application for the Kelly Branch Surface Mine. Neither the
VA/NPDES permit nor the SMCRA permit for the Kelly Branch Surface Mine make
any mention of selenium.
The plaintiffs have moved for summary judgment on both their CWA and
SMCRA claims. As to the CWA claim, the plaintiffs assert that because A&G is
discharging selenium without a permit that authorizes it to do so, and because it did
not disclose the potential for selenium discharge in its permit application, it is
violating the CWA as a matter of law. In response, A&G argues that because it
disclosed those pollutants it knew or had reason to believe it would discharge, and
because its permit contains no selenium limits, it is protected by the permit shield and,
as a matter of law, is not violating the CWA. This argument is also the basis for
A&G’s Motion for Summary Judgment.
Regarding the SMCRA claim, the plaintiffs allege that the undisputed evidence
shows that A&G is violating SMCRA by (1) violating state water quality standards,

(2) violating the CWA, (3) causing material damage to the hydrologic balance
outside its permit area, and (4) failing to install adequate water treatment facilities.
3

A&G disputes whether the samples were taken in stream and whether they show
the presence of selenium in excess of chronic levels, but these factual issues are irrelevant
to the applicability of the permit shield defense and to resolution of the plaintiffs’ CWA
claim. A&G concedes that it is discharging selenium and that none of its permits
expressly allow it to do so.
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A&G argues that state water quality standards are not independently enforceable in
a citizen suit. A&G further argues that the plaintiffs cannot use SMCRA to
enforce an alleged CWA violation where a defense exists to the CWA action
because SMCRA’s savings clause provides that SMCRA shall not be construed to
modify or supersede the CWA. Finally, A&G contends that a factual issue exists
with respect to whether the samples cited by the plaintiffs demonstrate violation of
in-stream water quality standards.
The cross motions for summary judgment have been fully briefed and orally
argued.

Following oral argument, A&G moved to supplement the summary

judgment record with a letter dated August 8, 1997, purportedly sent from the
United States Environmental Protection Agency (“EPA”) to the Virginia Division
of Mined Land Reclamation (“DMLR”), a division of DMME. According to
A&G, the letter indicates that EPA and DMLR policy did not require A&G to test
for and disclose selenium because DMLR was routinely analyzing metals from
selected mining discharges. The plaintiffs argue that A&G should not be permitted
to supplement the record because it has offered no reason for its failure to find and
produce this evidence earlier. The plaintiffs further argue that the letter is at best
ambiguous and does not strengthen A&G’s position with respect to the
applicability of the permit shield.

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For the following reasons, I will deny A&G’s Motion to Supplement
Evidence in Support of its Motion for Summary Judgment as well as its Motion for
Summary Judgment, and I will grant the plaintiff’s Motion for Summary
Judgment. I agree with the plaintiffs that the permit shield defense is inapplicable
here, and I find that it is unnecessary to resolve the issues surrounding the SMCRA
claim.

II

I will first address A&G’s motion to supplement. A court is not required to
consider evidence in support of summary judgment that was not submitted prior to
the summary judgment hearing. Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir. 1993)
(affirming district court’s refusal to consider documents that were presented on the
morning of oral argument). Rule 6 of the Federal Rules of Civil Procedure governs
extensions of time. Rule 6(b) provides that when a party moves for an extension of
time after the prescribed time period for performance of an act has expired, the
court may, for good cause, extend the time “if the party failed to act because of
excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). “In determining whether a party
has shown excusable neglect, a court will consider: (1) the danger of prejudice to
the non-moving party; (2) the length of delay and its potential impact on judicial
proceedings; (3) the reason for the delay; and (4) whether the movant acted in good
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faith.” Colony Apartments v. Abacus Project Mgmt., Inc., 197 F. App’x 217, 223
(4th Cir. 2006) (unpublished). The reason for the delay is the most important
factor. Id.
Although A&G’s motion to supplement is not styled as a motion for an
extension of time, I will treat it as such. 4 A&G filed its motion, seeking to add
new evidence in support of its summary judgment motion and in opposition to the
plaintiff’s summary judgment motion, well after the summary judgment briefing
deadlines. A&G’s belated filing of the evidence prejudices the plaintiffs because
they will not have the opportunity to depose the pertinent witnesses about the
contents of the letter and spreadsheet, the circumstances of their creation, or their
distribution. A&G’s argument that this new evidence merely supports its longasserted permit shield defense is unavailing, because the evidence creates a new
contention supporting A&G’s claim that it was not required to disclose selenium

4

A&G argues that I should instead apply Rule 56(e)(1), which states, “If a party
fails to properly support an assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . . give an opportunity to
properly support or address the fact.” Fed. R. Civ. P. 56(e)(1). A&G did not simply fail
to address an assertion of fact in its summary judgment filings. Rather, A&G gathered
new evidence following the discovery and summary judgment deadlines and seeks to add
this newly uncovered evidence, never before seen by the plaintiffs, to the summary
judgment record. Therefore, I find that Rule 56(e) is not applicable. Even if Rule 56(e)
applied here, that rule also gives me discretion to consider the fact in question undisputed
for purposes of the summary judgment motion or to issue any other appropriate order.
See Fed. R. Civ. P. 56(e)(2)-(4). For the reasons discussed with respect to Rule 6(e), I am
not inclined to give A&G any further opportunity to address the agency’s permit
application requirements and will decline A&G’s request for relief pursuant to Rule
56(e)(1).
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discharges in its permit application. As for the length of the delay and its impact
on the proceedings, A&G filed its motion to supplement the record more than two
months after the plaintiffs placed the permit application instructions in issue by
discussing them in their brief in support of their motion for summary judgment.
A&G then had ample opportunity to ask agency representatives about the permit
application requirements. Were I to grant the motion to supplement, it would be
necessary to reopen discovery and allow for additional proceedings to provide the
plaintiffs with an adequate opportunity to address the new evidence. This would
result in significant additional litigation expense to the parties.
A&G has offered no reason why it could not have obtained this evidence
during discovery or why it waited until after oral argument to contact DMLR to
inquire about the agency’s selenium disclosure policy for permit applications.
A&G’s failure to contact the agency prior to filing its summary judgment motion
and briefs is inexplicable. While there is no clear evidence that A&G’s motion to
supplement was made in bad faith, there appears to have been no good reason for
A&G’s delay. Consideration of the applicable factors leads me to conclude that
A&G has not established the requisite basis for granting its motion to supplement
the record.
Moreover, the admissibility of the newly proffered evidence is questionable.
“Only evidence that would be admissible at trial may be considered for summary
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judgment purposes.” Hunter v. Prince George’s Cnty., Md., 36 F. App’x 103, 106
(4th Cir. 2002) (unpublished). “[H]earsay evidence, which is inadmissible at trial,
cannot be considered on a motion for summary judgment.”

Md. Highways

Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251 (4th Cir.1991). The plaintiffs
have not objected to the admissibility of the 1997 letter and attached spreadsheet of
purported sampling data on hearsay grounds; nevertheless, the letter and
spreadsheet appear to be inadmissible hearsay, and A&G has offered no argument
as to why this evidence would be admissible at trial. The letter appears to be an
exchange between representatives of two agencies who are not parties to this case,
and A&G seeks to have the letter admitted for the truth of the matters asserted
regarding agency sampling and permit application disclosure requirements.
Even if the letter were admissible under a hearsay exception, the relevance
of the letter is doubtful. A&G does not contend that it ever received the letter or
knew of the policy discussed therein.

A&G admits that its initial permit

application was submitted in 2000, three years after the date of the subject letter,
and that the permit it now possesses was issued following a renewal application it
submitted in 2009, twelve years after the date of the letter. Thus, the applicability
of the letter to A&G’s particular permit applications is unclear. Additionally, the
letter instructs DMLR that if it plans to use its own metal analyses to satisfy
individual companies’ permit application disclosure obligations, it should so
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indicate in the application or the instructions for completing the application. The
application submitted by A&G and the instructions thereto do not have any such
indication. Therefore, to assume that the policy discussed in this letter applied to
A&G’s application would be speculative. Finally, the relevance of the spreadsheet
attached to the 1997 letter is not immediately apparent. At most, the spreadsheet
indicates that DMLR was aware in 2004 that two out of 17 mines tested were
discharging selenium. The Kelly Branch Surface Mine is not one of the 17 mines
listed on the spreadsheet. Even if this data were admissible and interpreted as
A&G suggests, it would be difficult to infer from the spreadsheet that DMME
somehow knew based on this data that the Kelly Branch Surface Mine would
discharge selenium.
For these reasons I will deny A&G’s motion to supplement the record
because A&G has not shown excusable neglect, and because the newly proffered
evidence is at best unpersuasive and at worst inadmissible and irrelevant.

III
Summary judgment is appropriate when there is “no genuine issue of
material fact,” given the parties’ burdens of proof at trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); see Fed. R. Civ. P. 56(a). In this case, the
undisputed material facts warrant partial summary judgment for the plaintiffs.

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The CWA broadly bans “the discharge of any pollutant by any person,”
subject to some exceptions. 33 U.S.C.A. § 1311(a). The “discharge of a pollutant”
includes “any addition of any pollutant to navigable waters from any point source.”
33 U.S.C.A. § 1362(12). The term “pollutant” includes “dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste
discharged into water.” 33 U.S.C.A. §1362(6).
The discharge of pollutants is not uncommon in the mining industry,
however, and mining companies can apply for permits that will allow them to
discharge pollutants in limited amounts.

See 33 U.S.C.A. § 1342; W. Va.

Highlands Conservancy, Inc. v. Huffman, 625 F.3d 159, 162, 166 (4th Cir. 2010);
Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md., 523 F.3d 453, 456
(4th Cir. 2008). The CWA’s permit program, the National Pollution Discharge
Elimination System (“NPDES”), is generally administered by the federal EPA, but
the EPA has delegated to a number of states, including Virginia, the authority to
run their own NPDES permit programs. W. Va. Highlands Conservancy, 625 F.3d
at 162; see 33 U.S.C.A. § 1342 (a)-(c). In Virginia, DMME is the agency that
issues CWA and SMCRA permits for coal mining operations.

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NPDES permits limit the amounts of certain pollutants that a permit holder
can discharge. These limits are known as effluent limits. A permit holder need not
comply with water quality standards that measure the levels of pollutants in the
receiving waterway. Rather, under the CWA, permit holders need only ensure that
they do not discharge pollutants in amounts greater than the effluent limits
specified in their permits, and that they comply with various monitoring, testing,
and reporting requirements.

See generally Piney Run Pres. Ass’n v. Cnty.

Comm’rs of Carroll Cnty., Md., 268 F.3d 255, 264-66 (4th Cir. 2001). The CWA
contains a shield provision, which indicates that a permit holder complies with the
CWA if it complies with its NPDES permit. 33 U.S.C.A. § 1342(k); Atl. States
Legal Found., Inc. v. Eastman Kodak Co., 12 F.3d 353, 357 (2d Cir. 1993).
In Piney Run Preservation Association v. County Commissioners of Carroll
County, Maryland, the seminal case addressing the scope of the CWA’s permit
shield, the Fourth Circuit held that a permit holder’s discharge of a pollutant not
specifically listed in its permit does not violate the CWA as long as:
(1) the permit holder complies with the express terms of the permit
and with the Clean Water Act’s disclosure requirements and (2) the
permit holder does not make a discharge of pollutants that was not
within the reasonable contemplation of the permitting authority at the
time the permit was granted.
Piney Run, 268 F.3d at 259. Finding that the CWA’s statutory shield provision
was ambiguous, the Piney Run court deferred to the EPA’s reasonable

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interpretation: a permit holder is shielded from liability for discharging pollutants
not listed in its permit if it adequately disclosed the nature of its discharges during
the application process and the pollutants being discharged were within the
reasonable contemplation of the permitting authority at the time the permit was
issued. Id. at 267-68; see In Re Ketchikan Pulp Co., 7 E.A.D. 605, 621 (EAB
1998) (“[W]hen the permittee has made adequate disclosures during the
application process regarding the nature of its discharges, unlisted pollutants may
be considered to be within the scope of an NPDES permit, even though the permit
does not expressly mention those pollutants. The converse is also true: where the
discharger has not adequately disclosed the nature of its discharges to permit
authorities, and as a result thereof the permit authorities are unaware that unlisted
pollutants are being discharged, the discharge of unlisted pollutants has been held
to be outside the scope of the permit.”).
In this case, A&G contends that it has satisfied both prongs identified in
Piney Run and should be shielded from liability for discharging selenium. As to
the first prong, A&G asserts that it complied with the CWA’s disclosure
requirements, which mandate disclosure of pollutants that the applicant “knows or
has reason to believe . . . will be present in the discharges from any outfall.” 40
C.F.R. §§ 122.21(k)(5)(iii) (2012). According to A&G, it did not know or have
reason to believe that it would discharge selenium, so it was not required to
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disclose selenium in its application. A&G also argues that it adequately disclosed
the nature and source of its discharges — bituminous coal mining — which it says
is sufficient to invoke the permit shield. As to the second prong, A&G contends
that because DMME was generally aware of elevated selenium levels in the
geographic area, the possibility of selenium discharge from the Kelly Branch
Surface Mine would have been within DMME’s reasonable contemplation when it
issued the VA/NPDES permit.
The plaintiffs’ view of the permit shield is much more straightforward.
According to them, a permittee can only invoke the permit shield as to an unlisted
pollutant if it actually disclosed the unlisted pollutant in its permit application.
No court has yet addressed A&G’s precise argument that the permit shield
applies where a permittee did not disclose an unlisted pollutant because the
permittee did not have reason to know that it would discharge the pollutant. After
carefully considering the court of appeals’ decision in Piney Run, as well as the
EPA’s reasoning in Ketchikan Pulp, I hold that a permittee must have actually
disclosed a pollutant in its permit application in order to avail itself of the permit
shield as to that pollutant.
The major flaw in A&G’s position is that it hinges upon the applicant’s
knowledge of pollutants at the time of the application. As the Piney Run and
Ketchikan Pulp decisions make clear, however, the crucial factor for application of
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the permit shield is whether the permitting agency contemplated the discharge and
chose not to include an effluent limit for the pollutant in the permit. The Piney
Run court emphasized,
Because the permitting scheme is dependent on the permitting
authority being able to judge whether the discharge of a particular
pollutant constitutes a significant threat to the environment,
discharges not within the reasonable contemplation of the permitting
authority during the permit application process . . . do not come within
the protection of the permit shield.
Piney Run, 268 F.3d at 268. Similarly, the Environmental Appeals Board indicated
that “the disclosures made by permit applicants about their operations and
wastestreams are critical to the success of the overall permitting scheme” because a
permit’s effluent limitations are based primarily on information provided by the
applicant. Ketchikan Pulp, 7 E.A.D. at 619.
In this case, it is undisputed that A&G did not know or have reason to believe
that it would discharge selenium from its mine site. Even if A&G dutifully complied
with the permit application requirements, the evidence simply does not support a
conclusion that DMME contemplated what A&G did not. I find unpersuasive A&G’s
argument that it adequately disclosed the nature of its discharges by informing the
DMME that it would perform bituminous coal mining operations.

The record

contains no evidence that DMME reasonably contemplated the discharge of selenium
simply because it knew that the Kelly Branch Surface Mine was a bituminous coal

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mine. Indeed, A&G claims that it had no reason to know it would discharge selenium,
despite the fact that it clearly knew it would operate a bituminous coal mine.
I am also unpersuaded by A&G’s argument that the discharge of selenium from
the Kelly Branch Mine Site was within DMME’s reasonable contemplation because
DMME understood that there were elevated levels of selenium in the general area.
The Environmental Appeals Board rejected a similar argument in Ketchikan Pulp.
There, the permittee argued that its permit implicitly allowed discharge of cooking
acid because “the Agency was generally aware that spills occur in pulp mills.”
Ketchikan Pulp, 7 E.A.D. at 629-30. The Environmental Appeals Board found that
such general knowledge was insufficient to apprise the permitting authority of the
possibility that the permittee would discharge cooking acid. Id. I likewise find that
DMME’s general knowledge of the presence of selenium in the geographic area is
insufficient to satisfy the requirements for invoking the permit shield. A&G has
offered no evidence that DMME anticipated a discharge of selenium from this
particular mine. Because the discharge of selenium was not within the reasonable
contemplation of DMME when it issued the VA/NPDES permit, the permit shield
does not apply.
A&G does not dispute that it has been discharging selenium from the Kelly
Branch Mine Site, nor does it contest the fact that its permit contains no explicit
authorization to discharge selenium. Because the permit shield does not apply here,
A&G’s selenium discharges are unlawful discharges of pollutants in violation of the
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CWA. Based on the undisputed facts, the plaintiffs are entitled to summary judgment
on the issue of liability under the CWA.
At oral argument, counsel for the plaintiffs represented that the court could
provide the plaintiffs full relief based solely upon the CWA claim. Accordingly,
because I hold that A&G has violated the CWA as a matter of law, I need not rule on
the merits of the plaintiffs’ SMCRA claim.
A&G has objected to several of the plaintiffs’ proposed remedies. The parties
have submitted briefs regarding appropriate remedies. The plaintiffs request that I
require A&G to apply expeditiously to DMME for a permit modification to address
selenium discharges, and to submit all the selenium test results in the record in this
case along with its request for modification. The plaintiffs further request that I wait
to determine any civil penalties until after the permit modification process is complete
or until one of the parties moves to establish a modified schedule. The plaintiffs also
ask me to require A&G to submit quarterly status reports to the court pending
completion of the modification process, to perform daily tests for selenium from both
its outfalls and the water column of the tributary streams immediately downstream
from the ponds’ discharges, and to monthly submit those test results to the plaintiffs
and to DMME for consideration during the permit modification process.

The

plaintiffs contemplate that I may use the results of the testing, quarterly status reports,
and sampling data to assess the seriousness of A&G’s violations for the purpose of
determining civil penalties.
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I find that the plaintiffs’ proposed interim remedies are reasonable and
appropriate, and that I have the authority to order them. Therefore, I will grant the
relief requested by the plaintiffs.

V
For the reasons stated, it is ORDERED as follows:
1. Defendant A&G Coal Corporation’s Motion to Supplement Evidence in
Support of its Motion for Summary Judgment (ECF No. 70) is DENIED;
2. Defendant A&G Coal Corporation’s Motion for Summary Judgment
(ECF No. 51) is DENIED;
3. Plaintiffs’ Motion for Summary Judgment (ECF No. 54) is GRANTED;
4. Within thirty (30) days after the date of entry of this Order, A&G Coal
Corporation must apply to the Virginia Department of Mines, Minerals,
and Energy (“DMME”) for a modification of its Virginia National
Pollution Discharge Elimination System permit to address its selenium
discharges;
5. A&G Coal Corporation must submit to DMME all selenium test results
that are part of the record in this case along with its request for permit
modification;

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6. The parties must submit quarterly status reports to the court pending
submission and consideration by DMME of the permit modification
application;
7. Beginning seven (7) days after the date of entry of this Order, A&G Coal
Corporation must perform daily tests for selenium from its outfalls and
from the water column of the tributary streams immediately downstream
of Pond 08A and Pond 11A;
8. A&G Coal Corporation must submit the results of its daily testing
monthly to the plaintiffs and DMME; and
9. The court shall retain jurisdiction in this case in order to determine any
further relief pending submission and any determination of A&G Coal
Corporation’s permit modification application.

ENTER: July 22, 2013
/s/ James P. Jones
United States District Judge

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