West Virginia Highlands Conservancy et al v. Monongahela Power Co
Filing
35
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS MOTION TO AMEND COMPLAINT DKT. NO. 22 AND MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT DKT. NO. 28 AND DENYING DEFENDANTS MOTION TO DISMISS OR ISSUE A STAY DKT. NO. 11 AND DENIES WITHOUT PREJUDICE MOTION TO DISMISS DKT. NO. 30 Signed by District Judge Irene M. Keeley on 1/3/2012. (Copy counsel of record via CM/ECF)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
WEST VIRGINIA HIGHLANDS CONSERVANCY,
WEST VIRGINIA RIVERS COALITION and
SIERRA CLUB,
Plaintiffs,
v.
//
CIVIL ACTION NO. 1:11cv71
(Judge Keeley)
MONONGAHELA POWER COMPANY, doing
business as First Energy Corp.,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22]
AND MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
[DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
This case arises as a citizen suit brought pursuant to the
Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq. Before the Court
are the plaintiffs’ motions to amend their complaint and the
defendant’s motions to dismiss the plaintiffs’ complaint. For the
reasons stated at a hearing held on December 8, 2011 and discussed
below, the Court GRANTS the plaintiffs’ motion to amend their
complaint
(dkt.
no.
22),
GRANTS
the
plaintiffs’
motion
to
substitute a first corrected amended complaint (dkt. no. 28),
DENIES the defendant’s motion to dismiss based on abstention or,
alternatively, to issue a stay (dkt. no. 11), and DENIES WITHOUT
PREJUDICE the defendant’s motion to dismiss (dkt. no. 30).
WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
I.
The CWA was enacted “to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.” 33
U.S.C.
§
1251.
The
CWA
prohibits
unpermitted
discharges
of
pollutants into the navigable waters of the United States. 33
U.S.C. § 1311(a). Any such discharge must be in compliance with a
National Pollutant Discharge Elimination System (“NPDES”) permit or
NPDES-equivalent permit issued to the discharging party. 33 U.S.C.
§
1342.
These
Protection
permits
Agency
are
(“EPA”)
issued
by
or
a
by
the
state
U.S.
Environmental
agency
under
an
EPA-approved State Pollutant Discharge Elimination System Permit
program. 33 U.S.C. § 1342(b). West Virginia has an approved permit
program codified in the West Virginia Water Pollution Control Act
(“WVWPCA”) and its accompanying regulations. See W. Va. Code
§ 22-11-1 et seq.; West Virginia Code of State Rules (“WVCSR”)
§ 47-10-1 et seq. This program allows the West Virginia Department
of Environmental Protection (“WVDEP”) to issue NPDES-equivalent
discharge permits (“WV/NPDES” permits).
The Clean Water Act allows a citizen to “commence a civil
action on his own behalf ... against any person ... who is alleged
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WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
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).
The
definition
of
an
“effluent
standard
or
limitation” includes an NPDES “permit or condition thereof [.]" 33
U.S.C. § 1365(f).
II.
A.
The
defendant,
Monongahela
Power
Company
(“Mon
Power”),
operates the Albright Power Station (“Albright”), a coal-fired
power plant, in Preston County, West Virginia. Since 1987, Mon
Power has held a WV/NPDES permit, Permit No. WV0075281, which
regulates Albright’s discharge of pollutants into the surrounding
tributaries (“Albright tributaries”).
The 2008 amendments to the West Virginia Code of State Rules
(“WVCSR”) lowered the permissible levels of arsenic, a toxic
pollutant, for both Category A (human consumption) waters and
Category C (recreational use) waters. See WVCSR § 47-2 app’x E.
Specifically, the WVCSR now dictate that both Category A and
3
WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
Category C waters can contain no more than 10 parts per billion of
arsenic. Id. The WVDEP further classified the Albright tributaries
as Category C waters and also, for the first time, as Category A
waters.
Over Mon Power’s objection, on January 27, 2010, the WVDEP
reissued WV/NPDES Permit No. WV0075281 with the new, lowered
arsenic limits of 0.01 mg/L monthly, with separate daily limits for
the individual tributaries. The reissued permit, with its revised
effluent limitations, became effective on February 26, 2010.
Mon Power appealed the reissued permit to the Environmental
Quality Board on February 25, 2010, arguing that the new discharge
limitations were inappropriate given the actual character and use
of the Albright tributaries. During the course of the appeal,
however, it became apparent that the WVSCR would need to be
formally changed before the effluent limitations in Mon Power’s
permit could be altered. Accordingly, Mon Power reached what it
characterizes as an informal e-mail “settlement” with the WVDEP,
and it voluntarily withdrew its appeal on June 29, 2010.
4
WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
In its e-mail exchange with the WVDEP, Mon Power expressed its
desire
to
formally
seek
reclassification
of
the
Albright
tributaries per the rulemaking process outlined in WVCSR § 46-64.2, which permits “[a]ny person seeking reclassification of a
designated use of a stream” to file an application with the WVDEP.
In turn, the WVDEP agreed to review Mon Power’s timely application
and follow the procedures outlined in WVCSR § 46-6-4.3, namely,
deciding
in
its
discretion
whether
Mon
Power’s
“requested
designated use reclassification is warranted” such that the WVDEP
should propose a legislative amendment to the regulations. The email exchange further stressed that the interim compliance schedule
of the existing permit would not be extended. As of the date of
this Order, this process remains ongoing.
On
May
Conservancy,
9,
2011,
West
the
Virginia
plaintiffs,
Rivers
West
Coalition,
Virginia
and
Highland
Sierra
Club
(collectively “the plaintiffs”), filed a complaint in this Court
pursuant to the citizen suit provision of the Clean Water Act, 33
U.S.C. § 1365. The plaintiffs allege that Mon Power has discharged
and continues to discharge impermissible amounts of arsenic into
the waters of the United States in violation of its current
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WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
WV/NPDES permit. The plaintiffs have identified fourteen (14)
separate permit violations occurring between July 2010 and November
2010.
B.
On November 14, 2011, the Court requested that the parties
brief whether the complaint had adequately pled the plaintiffs’
organizational standing. In response to this inquiry, on November
17, 2011, the plaintiffs moved to amend their complaint pursuant to
Fed. R. Civ. P. 15(a) (dkt. no. 22) and, on December 1, 2011, moved
to correct a factual error in that amended complaint (dkt. no. 28).
With no objection from Mon Power, the Court GRANTED both of these
motions at the December 8, 2011 hearing in this matter, finding
that the allegations in the First Corrected Amended Complaint were
sufficient to plead organizational standing. At the defendant’s
request, the Court then construed Mon Power’s December 7, 2011
response to the plaintiff’s motion to amend as a motion to dismiss
(dkt. no. 30), which the Court then DENIED WITHOUT PREJUDICE
subject to refiling
upon the completion of the first phase of
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WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
discovery. The Court now turns to Mon Power’s motion to dismiss
based on abstention or, alternatively, issue a stay (dkt. no. 11).
III.
A.
“Abstention doctrines constitute ‘extraordinary and narrow
exception[s]’
to
a
federal
court's
duty
to
exercise
the
jurisdiction conferred on it.” Martin v. Stewart, 499 F.3d 360, 363
(4th Cir. 2007) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 716, 728 (1996)). The doctrine of Burford abstention, named
for Burford v. Sun Oil Co., 319 U.S. 315 (1943), allows a federal
court to refrain from interfering with complex state regulatory
schemes
“[w]here
timely
and
adequate
state-court
review
is
available,” New Orleans Pub. Serv., Inc. v. Council of New Orleans,
491 U.S. 350, 361 (1989) (“NOPSI”), if a case
[1] presents difficult questions of state law bearing on
policy problems of substantial public import whose
importance transcends the result then at bar, or [2] if
its adjudication in a federal forum would be disruptive
of state efforts to establish a coherent policy with
respect to a matter of substantial public concern.
Quackenbush, 517 U.S. at 726–27 (quoting NOPSI, 491 U.S. at 361).
There is no “formulaic test” for applying Burford abstention;
7
WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
despite the doctrine's “many different forks and prongs, [its]
central idea has always been one of simple comity.” MLC Automotive,
LLC v. Town of S. Pines, 532 F.3d 269, 280 (4th Cir. 2008) (quoting
Johnson v. Collins Entm’t Co., 199 F.3d 710, 710 (4th Cir. 1999)).
B.
Mon
Power’s
abstention
argument
hinges
largely
on
its
characterization of the plaintiffs’ claims. Mon Power asks the
Court to abstain from this case because the plaintiffs’ claims are
an impermissible collateral attack on a permitting decision of the
WVDEP, i.e., “the [WVDEP’s] decision to resolve a permit dispute by
seeking modification of a rule that informs the questioned limits.”
(Dkt. No. 12 at 9). The plaintiffs, in contrast, characterize their
claim as a straightforward enforcement action brought against Mon
Power for violations of the effluent limitations contained in a
WV/NPDES permit, to which Burford abstention does not apply.
Mon Power relies heavily on Palumbo v. Waste Technologies
Indus., 989 F.2d 156 (4th Cir. 1993). In Palumbo, the defendant had
obtained hazardous waste permits from both the federal and state
EPAs. The plaintiffs brought suit under the Resource Conservation
and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., “challenging
8
WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
the validity of the defendants’ state and federal hazardous waste
permits, and seeking to enjoin the eventual operation of the East
Liverpool incinerator.” Id. at 158. The Fourth Circuit found that
Burford abstention was appropriate “[t]o the extent the plaintiffs
challenge separately the permitting decisions of the Ohio EPA.” Id.
at 159. This general rule, that a district court should abstain
under Burford if a suit brings a collateral attack against a stateissued permit, has been reaffirmed by the Fourth Circuit and
followed by this Court. See Sugarloaf Citizens Ass'n v. Montgomery
County, Md., No. 93-2475, 1994 WL 447442, at *4 (4th Cir. 1994);
Jamison v. Longview Power, LLC, 493 F.Supp.2d 786, 792 (N.D. W. Va.
2007).
Mon Power’s attempt to recharacterize the plaintiffs’ rather
ordinary citizen enforcement suit as a collateral attack on an
agency decision is unavailing. The plaintiffs, as citizens, have
brought a suit pursuant to 33 U.S.C. § 1365 for violation of 33
U.S.C. § 1311(a), which prohibits any discharge of pollutants that
is inconsistent with 33 U.S.C. § 1342, or, put differently, in
violation of a NPDES permit. The complaint makes no mention of, and
seeks no relief against, Mon Power’s current attempts to alter the
9
WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
WVCSR so that it may seek modification of its permit. The current
effluent limitations in WV/NPDES Permit No. WV0075281 have not been
suspended or modified and are, as such, currently enforceable
against Mon Power through a CWA citizen suit.
C.
Having characterized the plaintiffs’ claims as an ordinary
citizen suit brought pursuant to the CWA, the Court now turns to
the application of the Burford abstention doctrine.
1.
The first step in the Burford abstention analysis is whether
“timely and adequate state court review” is available. NOPSI, 491
U.S. at 361. “Only if a district court determines that such review
is available, should it turn to the other issues.” Riley v.
Simmons, 45 F.3d 764, 771 (3d Cir. 1995).
There is no citizen enforcement provision in the West Virginia
Water Pollution Control Act. See W. Va. Code § 22-11-1 et seq.
Accordingly, the plaintiffs would not be able to get “timely and
adequate” review of their enforcement claims in state court, and
the threshold requirement of Burford abstention cannot be met. See
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WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
Ohio Valley Environmental Coalition v. Maple Coal Co., -- F. Supp.
2d ––, 2011 WL 3874576, at *20 (S.D. W. Va. 2011)(“West Virginia
does not have a citizen suit provision through which Plaintiffs
could obtain state court review of their enforcement challenges.”).
Although Mon Power argues that the rulemaking process contained in
the WVCSR provides the plaintiffs with an adequate forum for their
claim, this “would only be dispositive if Plaintiffs’ current
actions were seeking a review of those proceedings; instead,
Plaintiffs are pursuing [a] federal citizen enforcement action.”
Id. (quoting Ohio Valley Environmental Coalition, Inc., et al. v.
Coal-Mac, Inc., 775 F.Supp.2d 900, 917 (S.D. W. Va. 2011)).
2.
Citizen enforcement suits under the CWA also do not present
“difficult issues of state law bearing on policy problems of
substantial public import whose importance transcends the result in
the case . . . at bar,” as would warrant Burford abstention.
Quackenbush, 517 U.S. at 726–27 (quoting NOPSI, 491 U.S. at 361).
To the contrary, the regulation of water pollution is a matter of
both state and federal concern, as evidenced by the cooperative
structure of the CWA and the WVWPCA. See, e.g., Coal-Mac, 775
11
WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
F.Supp.2d
at
918
(the
questions
in
citizen
suits
“are
not
complicated questions of state law; they are complicated questions
regarding the overlap of federal and state law provisions”); see
also Or. State Pub. Interest Research Grp., Inc. v. Pac. Coast
Seafoods Co., 341 F.Supp.2d 1170, 1178 (D. Or. 2004) (“To avoid
violating federal law [under the CWA], state laws and regulations
must satisfy specific requirements set forth in the federal laws
and
regulations.
Accordingly,
state
courts
have
no
greater
competence or expertise than federal courts in interpreting such
laws.”).
3.
Finally, adjudication of CWA citizen enforcement suits in
federal court does not “disrupt[] . . . state efforts to establish
a coherent policy with respect to a matter of substantial public
concern,” and, as such, these suits do not implicate the remaining
Burford concerns. Quackenbush, 517 U.S. at 726–27 (quoting NOPSI,
491 U.S. at 361). Here, as the plaintiffs are merely seeking
compliance
with
an
existing
WV/NPDES
permit,
the
Court’s
involvement in this dispute will serve to enforce, and not disrupt,
12
WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
West Virginia’s environmental policy. See Coal-Mac, 775 F.Supp.2d
at 918 (no disruption of state policy in CWA enforcement suit).
D.
A district court typically abstains under Burford in the
interests of comity and to avoid federal court involvement in
matters of essentially local concern. See MLC Automotive, 532 F.3d
at
280.
A
citizen
suit
brought
pursuant
to
the
cooperative
federalism structure of the CWA, however, involves matters of both
federal and state concern and, even more importantly, is brought
pursuant to a specific statutory structure which grants federal
courts jurisdiction over those claims. See, e.g., Long Island
Soundkeeper Fund, Inc. v. New York City Dept. of Envtl. Protection,
27 F.Supp.2d 380, 385 (E.D.N.Y. 1998) (abstaining from CWA citizen
suit would “essentially deprive [the plaintiffs] of the statutory
right that Congress saw fit to confer upon them”).
As Judge Copenhaver recently noted in Maple Coal Co., “‘[i]f
the Court abstains under the Burford doctrine, thereby not reaching
the merits of [the plaintiffs'] arguments, it would be neglecting
its duty to ensure that the federal law requirements are complied
with, and it would deny Plaintiffs a forum for their citizen
13
WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
enforcement suit.’” 2011 WL 3874576, at *21 (quoting Coal-Mac,
Inc., 775 F.Supp.2d at 917). Here, because the plaintiffs’ claims
are properly characterized as an ordinary citizen suit brought
pursuant to the CWA, the Court DENIES Mon Power’s motion to dismiss
this case on Burford abstention grounds.
IV.
In the alternative, Mon Power requests that the Court stay the
proceedings in this case pending the outcome of the rulemaking
process. A motion to stay is committed to the sound discretion of
the district court. Gisper v. Simplicity, Inc., No. 5:10-CV-21,
2011 WL 128776, at *3 (N.D. W. Va. Jan. 14, 2011); see also Landis
v. North Am. Co., 299 U.S. 248, 254-55 (1936).
for
the
Court’s
consideration
include
“(1)
Relevant factors
the
interests
of
judicial economy; (2) hardship and equity to the moving party if
the action is not stayed; and (3) potential prejudice to the
non-moving party.” Tolley v. Monsanto Co., 591 F.Supp.2d 837, 844
(S.D. W. Va. 2008).
Here, the rulemaking procedure undertaken by the defendant is
steeped in uncertainty. The process could take any number of
14
WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
months,
and
Mon
Power’s
ultimate
likelihood
of
success
is
unpredictable at best. Such a nebulous and potentially lengthy stay
would essentially excuse Mon Power from complying with the legal
requirements of its current permit and cause significant prejudice
to the plaintiffs, who seek injunctive relief in addition to
statutory damages. Moreover, it would contravene the purpose of the
CWA
to
indefinitely
stay
a
citizen
suit
when
the
statutory
conditions precedent for filing such a suit are satisfied. See
generally St. Bernard Citizens for Environmental Quality, Inc. v.
Chalmette Refining, L.L.C., 348 F.Supp.2d 765, 767-68 (E.D. La.
2004) (declining to stay CAA case because the plaintiffs had met
the statutory requirements and to do so would “interfere with
Congress’s allocation of resources”). Accordingly, the Court DENIES
Mon Power’s motion to stay this case.
V.
In conclusion, for the reasons discussed, the Court GRANTS the
plaintiffs’ motion to amend their complaint (dkt. no. 22), GRANTS
the plaintiffs’ motion to substitute a first corrected amended
complaint (dkt. no. 28), DENIES the defendant’s motion to dismiss
15
WEST VIRGINIA HIGHLANDS, ET AL. v. MONONGAHELA POWER
1:11cv71
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO AMEND COMPLAINT [DKT. NO. 22] AND
MOTION TO SUBSTITUTE FIRST CORRECTED AMENDED COMPLAINT
DKT. NO. 28] AND DENYING DEFENDANT’S MOTION TO DISMISS OR
ISSUE A STAY [DKT. NO. 11] AND MOTION TO DISMISS [DKT. NO. 30]
based on abstention or, alternatively, issue a stay (dkt. no. 11),
and DENIES WITHOUT PREJUDICE the defendant’s motion to dismiss
(dkt. no. 30).
The Court directs the Clerk of Court to transmit copies of
this Memorandum Opinion and Order to counsel of record.
DATED: January 3, 2012
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
16
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