Sierra Club et al v. ICG Eastern, LLC

Filing 11

MEMORANDUM OPINION AND ORDER: It is ORDERED that Defendant's 6 Motion to Dismiss for Lack of Jurisdiction is hereby granted and this civil action is dismissed and ordered stricken from the active docket. Signed by Chief Judge John Preston Bailey on 6/29/11. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
SIERRA CLUB, et al.,
Plaintiffs,
v.

Civil Action No. 2:11-CV-23
Chief Judge John Preston Bailey

ICG EASTERN, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
Currently pending before this Court is Defendant ICG Eastern, LLC’s (“ICG”) Motion
to Dismiss [Doc. 6], filed April 25, 2011. The plaintiff responded to the Motion to Dismiss
on May 12, 2011 [Doc. 9], and the defendant replied on May 23, 2011 [Doc. 10]. The
Court has reviewed the record and the arguments set forth by the parties and, for the
reasons set forth below, concludes that the Motion to Dismiss should be GRANTED.
BACKGROUND
I.

Regulatory Structure
Plaintiffs’ claims are brought pursuant to the provisions for “citizen suits” found in

section 505(a) of the Clean Water Act (“CWA”), 33 U.S.C. § 1365(a), and section 520(a)
of the Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. § 1270(a). A
brief overview of the governing statutory and regulatory regimes will help to elucidate the
issues before this Court.
A.

Clean Water Act

The purpose of the Clean Water Act is “to restore and maintain the chemical,
1

physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In service
of those ends, the statute prohibits the “discharge of any pollutant by any person” unless
such discharge complies with the provisions of the CWA. See 33 U.S.C. § 1342(a)(1).
One such provision, codified at 33 U.S.C. § 1342, “established a National Pollution
Discharge Elimination System [“NPDES”] . . . that is designed to prevent harmful
discharges into the Nation’s waters.” Piney Run Pres. Ass’n v. County Comm’rs of
Carroll County, Maryland, 523 F.3d 453, 455-56 (2008) (quoting Nat’l Ass’n of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 650 (2007)).

NPDES requires

dischargers to obtain permits that contain effluent limitations – restrictions on the type and
quantity of pollutants that can be released into the water. S. Fla. Water Mgmt. Dist. v.
Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004). In effect, the NPDES program
transforms the generally applicable requirements of the CWA into specific obligations
imposed upon individual polluters. EPA v. California ex rel. State Water Res. Control
Bd., 426 U.S. 200, 205 (1976).
The Environmental Protection Agency (“EPA”) initially administers the NPDES
program for each state, but the states may apply for a transfer of permitting authority to
state officials. Nat’l Ass’n of Home Builders, 551 U.S. at 650. Once authority is
transferred, state officials are responsible for reviewing and approving NPDES permits.
Id. However, the EPA retains an oversight role in the permitting process; the state must
advise the EPA of each permit it proposes to issue, and the EPA may lodge an objection
to any permit. Id. at 650 n.1 (citing 33 U.S.C. §§ 1342(d)(1), (2); 40 C.F.R. § 123.44(c)).
If the state fails to resubmit a revised permit that satisfies the EPA’s objection, authority

2

over the permit reverts to the EPA. Id. at 650 n.1 (citing 33 U.S.C. § 1342(d)(4)).
B.

Surface Mining Control and Reclamation Act

Congress enacted the SMCRA in order to ensure that “coal mining operations are
so conducted as to protect the environment.” 30 U.S.C. § 1202(d). Like the CWA, the
SMCRA allows states to adopt their own regulatory programs, so long as those programs
comply with the requirements of federal law.1 See generally 30 U.S.C. § 1253. The West
Virginia Surface Coal Mining and Reclamation Act (“WVSCMRA”), West Virginia’s
regulatory program, empowers WVDEP to issue surface mining permits. See W.Va. Code
§ 22-3-2. Permits are subject to specific performance standards, and holders of such
permits must meet all applicable standards. See 38 C.S.R. § 2-14. One standard
mandated by the Act requires that mining activities be conducted in a manner which
“prevent[s] material damage to the hydrologic balance outside the permit area.” 38 C.S.R.
§ 2-14.5; see also 30 C.F.R. §§ 816.41(a), 817.41(a). A second standard directs that
“[d]ischarge . . . shall not violate effluent limitations or cause a violation of applicable water
quality standards.” 38 C.S.R. § 2-14.5b; see also 30 C.F.R. §§ 816.42, 817.42. Applicable
water quality standards include the effluent limitations imposed pursuant to the CWA;
therefore, if a permittee violates the terms of its CWA permit, the permittee is also in
1

Though SMCRA does assure that minimum national standards for surface mining are
enforced, it delegates greater regulatory authority to the states than does the CWA. Bragg
v. West Virginia Coal Ass’n, 248 F.3d 275, 294 (4th Cir. 2001). The CWA “anticipates
a partnership” between state and federal governments, in which regulatory authority is
shared, Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992), whereas the SMCRA
encourages “exclusive” state regulation in which standards are attained by state
enforcement of its own law. Bragg, 248 F.3d at 294; see 30 U.S.C. § 1253(a)(1). If a
state fails to enforce those standards, it does not automatically forfeit its regulatory rights;
rather, a process begins which may eventually lead to federal withdrawal of state authority.
Id. (citing 30 U.S.C. §§ 1271, 1267).
3

violation of the performance standards imposed by its SMCRA permit.2
C.

Citizen Suits

The enforcement schemes established by both the CWA and SMCRA carve out a
role for ordinary citizens, who are empowered to bring suit against polluters for their
violations of the law. See 33 U.S.C. § 1365; 30 U.S.C. § 1270. Citizen suits, while not the
primary mechanism of enforcement for either statute, “can serve as a check to ensure the
state and federal governments are diligent in prosecuting . . . violations.” Piney Run, 523
F.3d at 456. While citizen suit provisions are “critical” to the enforcement of these statutes,
they are meant “to supplement rather than to supplant governmental action.” Id. (quoting
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987).
Citizen suits are only proper, therefore, if governmental agencies “fail to exercise their
enforcement responsibilities.” Gwaltney, 484 U.S. at 60; see also Envtl. Conserv. Org.
v. City of Dallas, 529 F.3d 519, 528 (5th Cir. 2008) (“The primary function of a citizen suit
is to spur agency enforcement of the law.”).
In service of that aim, Congress carefully restricted the right to bring a citizen suit.
Both the CWA and SMRCA expressly stipulate that no citizen suit may be brought if the
government “has commenced and is diligently prosecuting a civil or criminal action . . . to
require compliance” with the CWA or SMCRA. 30 U.S.C. § 1270(b)(1)(B); see also 33
U.S.C. § 1365(b)(1)(B).

2

Plaintiffs thus allege that because defendant is in violation of the terms of its WV/NPDES
permit issued pursuant to the CWA, defendant is also in violation of the terms of its
WVSCMRA permit issued pursuant to SMCRA. Plaintiffs’ Complaint at ¶ 107.
4

II.

Factual Background
This case arises out of a coal company’s alleged noncompliance with the conditions

of two permits issued pursuant to the Clean Water Act and the Surface Mining Control and
Reclamation Act. At all times relevant to this action, defendant ICG owned and operated
the Knight-Ink No. 1 Surface Mine located in Webster County, West Virginia. Plaintiffs’
Complaint at ¶ 11. That mine, which is regulated by WVSCMRA Permit S201988,
discharges pollutants via several outfalls into the waters surrounding the mine. See id. at
¶ 38. Those discharges are regulated by WV/NPDES Permit WV0094889, which limits the
type and quantity of pollutants which may permissibly be discharged. See id. at ¶¶ 38-39.
A.

Permit Requirements

Defendant’s WV/NPDES permit places limits on, inter alia, the concentrations of
selenium3 that defendant may release into the water from eight discharge points: Outfalls
001, 002, 005, 014, 021, 031, 034, and 036. Id. at ¶ 40. Regulatory actions related to
selenium are relatively new in West Virginia; it was not until 2003 that state and federal
agencies realized the elevated potential of selenium pollution attendant to strip mining.
See Ohio Valley Envtl. Coal. v. Coal-Mac, Inc., –– F.Supp.2d ––, 2011 WL 1237643, *3
(S.D.W.Va. 2011). Accordingly, defendant’s WV/NPDES permit did not impose selenium
limitations on defendant’s Outfalls 031, 034, and 036 until July 2006. See Plaintiffs’
Complaint at ¶ 40. Although selenium limitations were also placed on the other five outlets
in question, the effective date of those limitations was delayed by a WVDEP order (“Order

3

Selenium is a naturally occurring element that is common in the environment but toxic at
high levels. Ohio Valley Envtl. Coal., Inc. v. Hobet Mining, 723 F.Supp.2d 886, 900
(S.D.W.Va. 2010).
5

731") until April 2010. See id. at ¶ 42.
Order 731 also included a compliance schedule which required ICG to begin
construction of selenium treatment facilities by October 2008, and to complete the
installation of such facilities by April 5, 2010, the same day the remaining limitations would
go into effect. See id. at ¶ 43; Defendant’s Exhibit 2 at 3. Additionally, Order 731 required
that a more detailed plan for installation of the treatment facilities be submitted to WVDEP
within one year, and stipulated that the plan would be “considered . . . a modification to the
NDPES Permit.” Defendant’s Exhibit 2 at 3. In accordance with that requirement, ICG
submitted its detailed plan in April 2008, which set forth a schedule for the construction and
installation of wetland treatment facilities at Outlets 001, 002, 005, 014, and 021.
Defendant’s Exhibit 3 at 5. The plan was approved by WVDEP on April 8, and appended
to ICG’s WV/NPDES permit. Defendant’s Exhibit 3 at 1.
In October 2009, ICG applied to WVDEP for another modification of its permit which
would extend the April 5, 2010 effective date for the selenium limitations at Outfalls 001,
002, 005, 014, and 021 until July 1, 2012. See id. at ¶ 46; Defendant’s Memorandum of
Law at 3. In February 2010, WVDEP gave public notice of its intent to grant the requested
extension. Id. at ¶ 47. However, in March 2010, the Environmental Protection Agency
filed a formal objection to the extension, halting the permit modification process. Id. at ¶¶
47-48. On April 2, 2010, three days before the selenium limitations were slated to take
effect, WVDEP had not yet resolved the EPA’s objection or made a final decision regarding
the permit modification; thus, ICG filed an administrative appeal with the West Virginia
Environmental Quality Board which (1) challenged the timeliness of WVDEP’s
decisionmaking process with respect to the requested permit modification and (2)
6

requested that the selenium limitations be stayed from taking effect pending disposition of
the appeal. Id. at ¶ 51; see Defendant’s Exhibit 5 at 2-3. The EQB granted the stay.
Defendant’s Exhibit 5 at 26-27. Concurrently with filing its appeal and request for stay with
the EQB, ICG also filed a petition with the Circuit Court of Kanawha County requesting that
the selenium limitations be enjoined from taking effect. See Defendant’s Exhibit 7. The
Kanawha County court granted the requested injunction. Id.
Because WVDEP was unable to resolve the EPA’s objection, ICG’s permit
modification request was ultimately denied. Id. at ¶ 48; Defendant’s Memorandum of Law
at 4. In September 2010, ICG filed an appeal of the denial with the EQB, which included
a request that the previously granted stay be extended to apply to the new appeal. See
Defendant’s Exhibit 8. A hearing in the new appeal, set for February 2011, was continued
on ICG’s motion pending the outcome of the Webster County action described below. See
Plaintiffs’ Exhibit 1.
B.

The Webster County Action

On April 14, 2010, plaintiffs sent a Notice of Intent letter (“NOI”) to ICG, informing
the company of its alleged effluent violations and expressing intent to file suit at the end
of the statutory 60-day waiting period. Plaintiffs’ Complaint at ¶¶ 59-60. Three days prior
to the expiration of that waiting period, WVDEP filed suit against ICG in the Circuit Court
of Webster County, West Virginia. Id. at ¶ 63. About six months later, WVDEP released
for public comment a proposed Consent Decree (“Draft Consent Decree”), which if
ultimately approved would resolve the Webster County action. Id. at ¶ 64. The terms of
the Draft Consent Decree set forth a schedule of tiered interim limitations on selenium

7

discharges at all eight outfalls, coupled with increasingly heavy daily fines for violation of
those interim limits as the final compliance dates approach. Defendant’s Exhibit 11 at 1420. Those final selenium compliance limitations will be enforced beginning on August 1,
2012 for Outfalls 001, 002, 005, 006, and 014, and on December 1, 2012 for Outfalls 007,
021, 031, 034, and 036.4 For settlement of ICG’s past effluent violations, the Draft
Consent Decree orders ICG to pay WVDEP a civil penalty of $288,750.00. Id. at ¶¶ 64,
72.
III.

Procedural History
On March 23, 2011, plaintiffs filed suit against ICG Eastern in the United States

District Court for the Northern District of West Virginia based on federal question
jurisdiction, pursuant to 28 U.S.C. § 1331, and the citizen suit provisions of the Clean
Water Act, 33 U.S.C. § 1365, and the Surface Mining Control and Reclamation Act, 30
U.S.C. § 1270. The Complaint [Doc. 2] brings three Claims for Relief: first, for violations
of the effluent limitations of defendant’s WV/NPDES permit, actionable under the CWA;
second, for violation of the terms of Order 731, also actionable under the CWA; and third,
for violation of the performance standards of defendant’s WVSCMRA permit, actionable
under SMCRA. Plaintiffs seek declaratory and injunctive relief from this Court.
STANDARD OF REVIEW
Defendant moved to dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1), claiming, inter alia, that plaintiffs’ suit is precluded under the CWA and
SMCRA. The plaintiff bears the burden of proving that subject matter jurisdiction exists.
4

Final effluent limits for Outfalls 031, 034 and 036, which have been in effect since July
2006, were not subject to the permit modifications requested by ICG.
8

See, e.g., Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). Challenges to
jurisdiction under Rule 12(b)(1) may be raised in two critically different ways. First, the
movant may argue that the complaint fails to allege facts upon which subject matter
jurisdiction can be based. E.g., Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In
that case, all the facts alleged in the complaint are assumed to be true and all reasonable
inferences are drawn in favor of the nonmovant. See id. Second, the movant may
challenge the veracity of the material jurisdictional facts. Id. In that type of challenge –
the type presented by this action – “[u]nlike the procedure in a 12(b)(6) motion where there
is a presumption reserving the truth finding role to the ultimate factfinder, the court in a
12(b)(1) hearing weighs the evidence to determine its jurisdiction,” and may consider
evidence outside the pleadings without converting the proceeding to one for summary
judgment. Id.
DISCUSSION
I.

Jurisdiction Over Plaintiffs’ Claims as to Effluent Limit Violations
Both the CWA and SMCRA bar citizens from suing if the federal or state

government has already commenced, and is “diligently prosecuting,” an enforcement
action “to require compliance with [the law].” Piney Run, 523 F.3d at 456 (quoting Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 175 (2000)); see
also Ohio Valley Envtl. Coal., Inc. v. Hobet Mining, LLC, 723 F.Supp.2d 886, 905
(S.D.W.Va. 2010). This “statutory bar is an exception to the jurisdiction granted [by the
statutes], and jurisdiction is normally determined as of the time of the filing of a complaint.”
Piney Run, 523 F.3d at 456 (quoting Chesapeake Bay Found. v. American Recovery

9

Co., 769 F.2d 207, 208 (4th Cir. 1985) (per curiam)).
Enforcement actions are considered “diligent” if they are “capable of requiring
compliance with the Act and [are] in good faith calculated to do so,” and as both parties to
this action acknowledge, diligence is presumed. Piney Run, 523 F.3d at 459. Citizenplaintiffs bear a heavy burden when challenging the diligence of a prosecution; merely
showing that the government’s prosecution is less aggressive than plaintiffs would prefer
is insufficient to overcome the presumption. Id.; see also Karr v. Hefner, 475 F.3d 1192,
1198 (10th Cir. 2007). Moreover, when the government and the alleged polluter enter into
a consent decree designed to cure violations of the CWA, courts “must be particularly
deferential to the [government] agency’s expertise.” Piney Run, 523 F.3d at 459. Such
deference serves an important practical purpose: if citizens could file suit “in order to seek
the civil penalties that [the government] chose to forgo, then [the government’s] discretion
to enforce the Act in the public interest would be curtailed considerably.” Gwaltney, 484
U.S. at 61. The deference owed, however, is not unlimited; the analysis requires more
than “mere acceptance at face value of the potentially self-serving statements of a state
agency and the violator.” Hobet Mining, 723 F.Supp.2d at 906.
It is undisputed that WVDEP was prosecuting an action against defendant in state
court at the time plaintiffs filed their Complaint. As previously discussed, that action
resulted in the drafting of a Consent Decree between WVDEP and defendant, which if
approved would resolve the Webster County litigation. In spite of those uncontroverted
facts, plaintiffs argue that this suit is not barred by the language of the citizen-suit
provisions. First, plaintiffs contend, the Draft Consent Decree is not capable of requiring

10

defendant’s compliance because (1) the fine it imposes for defendant’s past violations is
extremely small, and (2) it grants yet another deadline extension in a continual series of
such extensions – thus giving defendant no meaningful incentives, pecuniary or otherwise,
to obey its effluent limits. Second, plaintiffs suggest that WVDEP has acted in bad faith
by “using a state court proceeding to preclude a real enforcement action” against
defendant. Third, plaintiffs argue that the Webster County action does not seek to
prosecute defendant for any violations which took place during the period of time in which
the EQB and Kanawha County stays were in force. This Court holds, on the record before
it, that plaintiffs have failed to meet their high burden of establishing that WVDEP’s
prosecution of defendant was not diligent.
A.

The Draft Consent Decree is Capable of Requiring Compliance

In this Court’s view, it cannot convincingly be contended that the Draft Consent
Decree between defendant and WVDEP is incapable of requiring compliance with the
permit limitations. The Draft Consent Decree requires that defendant immediately take
measures to ensure compliance with all effluent limits and sets out a detailed plan to
ensure compliance for the outfalls at issue in this litigation. Each outfall is subject to a
triphasic effluent limitation schedule. Each phase levies increasingly significant fines for
every day of violation, starting at $1,000/day and increasing to $10,000/day. Additionally,
failure to conform to the deadlines for installation, reporting, and compliance set forth in
the detailed plan triggers another tiered set of daily fines from $500/day to $1000/day over
a 30-day period of time. In light of these significant financial incentives, the Draft Consent
Decree is surely capable of requiring defendant’s compliance. See Piney Run, 523 F.3d

11

at 460.
Plaintiffs argue that the “unconscionably small” civil penalty imposed for defendant’s
past violations is evidence that the Draft Consent Decree cannot require compliance. But
“a citizen-plaintiff cannot overcome the presumption of diligence by showing that the
agency’s prosecution strategy is less aggressive than he would like or that it did not
produce a completely satisfactory result.” Id. at 459. Although the fine is less than
plaintiffs would have imposed themselves, that fact alone does not render WVDEP’s
prosecution lacking in diligence. See Gwaltney, 484 U.S. at 60-61; see also City of
Dallas, 529 F.3d at 531 (“That [citizen-plaintiff] might have sought stiffer penalties against
[polluter] does not change the result; [citizen-plaintiff] is not permitted to upset the primary
enforcement role of the EPA by seeking civil penalties that the Administrator chose to forgo
. . . ”); Comfort Lake Ass’n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351 (8th Cir. 1998)
(“While [citizen-plaintiff] might have preferred more severe civil penalties, [the state
enforcement agency] has the primary responsibility for enforcing the Clean Water Act.”).
Here, defendant is subject to a strict schedule of fines for future violations in addition to the
cost it will incur by installing new treatment technologies to ensure its outfalls come into
and remain in compliance.
Plaintiffs cite Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 890
F.Supp. 470 (D.S.C. 1995), for the proposition that a prosecution which does not recover
the economic benefit of a polluter’s noncompliance is non-diligent. Significantly, however,
the Consent Order entered in Laidlaw purported to settle not only past violations of the
polluter’s effluent limits, but also all future violations of those limits. 890 F.Supp. at 490.

12

Unlike defendant in the instant action, the Laidlaw polluter was not subject to interim
effluent limits and future fines designed to force compliance with the law; the fine imposed
by the Consent Order represented the sum total of its pecuniary punishment. Id.
Furthermore, the Laidlaw court “did not hold that [the failure to recover economic benefit],
standing alone, would always support a finding of non-diligent prosecution . . . [t]he
economic benefit issue was a factor, but was by no means the only factor, upon which the
decision rest[ed].” Order on Motion for Reconsideration, Laidlaw, 890 F.Supp. at 498-99.
B.

WVDEP Has Not Acted in Bad Faith

This Court is unpersuaded by plaintiffs’ assertions that WVDEP’s enforcement
action was not in good faith calculated to require compliance. Plaintiffs point again to the
size of the fine assessed against defendant and to the extension of final compliance dates
in an attempt to substantiate their claims. In this Court’s view, those matters provide no
basis to impute a wrongful motive to WVDEP. The Webster County suit did not languish
for a long period of time without action; only six months passed between the time the
complaint was filed and lodging of the Draft Consent Decree. Cf. Jones v. City of
Lakeland, 224 F.3d 518, 522 (6th Cir. 2000) (10-year enforcement action which waived
deadlines contained in four Consent Decrees not diligent). As previously discussed, the
Draft Consent Decree requires defendant’s immediate compliance with interim limitations
and imposes a meaningful daily fine for any violations. “Government prosecution need not
be zealous or far-reaching – only diligent.” Piney Run, 523 F.3d at 459 (quoting Karr, 475
F.3d at 1197).

13

C.

Validity or Invalidity of the Stays is Irrelevant

Finally, plaintiffs argue that their First and Third Claims for Relief seek to prosecute
defendant for certain violations not covered by WVDEP’s Webster County complaint –
specifically, any violations that occurred during the period of time the EQB and Kanawha
County stays were in force. Plaintiffs allege that those stays were invalid, and therefore
that WVDEP has not prosecuted defendant for any violations that fell within that window.
This Court need not decide, however, whether the stays were valid to resolve the pertinent
jurisdictional question. “The focus of the statutory bar to citizen’s suits is . . . on whether
corrective action already taken and diligently pursued by the government seeks to remedy
the same violations as duplicative civilian action.” N. and S. Rivers Watershed Ass’n,
Inc. v. Town of Scituate, 949 F.2d 552, 556 (1st Cir. 1991). The Draft Consent Decree
orders defendant’s compliance with “all effluent limits for all Outfalls 001-036” (emphasis
added). That order unequivocally requires defendant to comply with all of its effluent
limitations; plaintiffs’ claims, therefore, are duplicative, as WVDEP has taken the
appropriate corrective action.5
Because there is no basis upon which to conclude that WVDEP’s prosecution of
defendant for its effluent limitation violations is non-diligent, this Court holds that plaintiffs’
5

Plaintiffs point out that WVDEP has reserved its right to seek future penalties for violations
occurring during the time that the stays were in force. That reservation is not germane to
the instant jurisdictional question because it was included in the revised Consent Decree,
promulgated after plaintiffs filed their Complaint in this action. But even if the Draft
Consent Decree had included such a reservation, this Court would be skeptical of its
relevance to the diligent prosecution analysis. The primary purpose of a citizen suit is to
cure a polluter’s violations, not to levy pecuniary penalties. “Duplicative actions aimed at
exacting financial penalties in the name of environmental protection at a time when
remedial measures are well underway . . . are impediments to environmental remedy
efforts.” Scituate, 949 F.2d at 556.
14

citizen suit as to their First and Third Claims for Relief is barred by statute. This holding,
however, does not fully extinguish the jurisdictional inquiry.
II.

Jurisdiction Over Plaintiffs’ Claims as to Order 731
As both parties agree, plaintiffs’ Second Claim for Relief is not included in WVDEP’s

ongoing enforcement action, and is therefore not subject to the statutory bar concerning
diligent prosecution. Order 731 required that defendant begin construction of selenium
treatment facilities by October 2008 and that such construction be completed by April
2010. Plaintiffs allege in their Second Claim for Relief that defendant failed to meet those
deadlines and thus is in ongoing violation of the Order, an actionable offense under the
CWA.6
Article III of the Constitution mandates that a court hear only continuing cases and
controversies. See United States v. Ala. S.S. Co., 253 U.S. 113, 116 (1920). A case
becomes moot when the issues presented are no longer “live,” or when then parties lack
a legally cognizable interest in the outcome. Incumaa v. Ozmint, 507 F.3d 281, 286 (4th
Cir. 2007) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). If a case has been
rendered moot, the federal courts are divested of subject matter jurisdiction to decide the
questions it presents. Simmons v. United Mortgage and Loan Inv., LLC, 634 F.3d 754,
762 (4th Cir. 2011).
Developments in a government action subsequent to the filing of a citizen-plaintiff’s

6

Defendant additionally argues that plaintiffs’ claims as to Order 731 must be dismissed
because any violations of the Order are “wholly past,” and therefore barred under
Gwaltney, 484 U.S. at 58-59. However, under Gwaltney, a plaintiff need not actually
prove that violations are currently occurring; all that is necessary to confer jurisdiction is “a
good-faith allegation of continuous or intermittent violation.” 484 U.S. at 64.
15

complaint may moot the citizen suit. See Chesapeake Bay Found., 769 F.2d at 209.
While the standard applied when a polluter voluntarily complies with the law is a formidable
one,7 the standard for evaluating a mandatory consent decree is more lenient: “the consent
decree will moot the citizen suit, unless the citizen-plaintiff ‘proves that there is a realistic
prospect that the violations alleged in its complaint will continue notwithstanding
[government enforcement].’” Hobet Mining, 723 F.Supp.2d at 909 (quoting City of Dallas,
529 F.3d at 528) (emphasis added). This more lenient standard respects Congress’ intent
that citizen suits supplement, rather than supplant, government action, while still reserving
a role for citizen-plaintiffs to “spur enforcement of the law.” City of Dallas, 529 F.3d at
528.
In the instant case, a legally binding Consent Decree was entered in the Webster
County court in April 2011. See Defendant’s Exhibit 13. Plaintiffs argue that the Consent
Decree does not resolve their claims as to Order 731, and that defendant’s mootness
argument is premature. This Court disagrees. Plaintiffs complain that defendant failed to
begin and complete construction of selenium treatment facilities by the dates set forth in
Order 731. The Consent Decree sets forth a detailed schedule for implementation of such
facilities that requires defendant to install technologies other than wetland systems,
including ion exchange treatment and microbial reduction technologies, with start-up scale
systems to be in place within 90 days from the date of the Consent Decree. The Consent
Decree requires defendant to make regular reports to WVDEP regarding those treatment

7

“The defendant must demonstrate that it is absolutely clear the alleged wrong behavior
could not reasonably be expected to recur.” Gwaltney, 484 U.S. at 66 (internal quotations
omitted) (emphasis in original); see also City of Dallas, 529 F.3d at 527.
16

systems and to hire an independent consultant, who will also report to WVDEP, to review
and analyze the effectiveness of the treatment systems. Importantly, the Consent Decree
does not bind defendant to the use of any particular technology; the schedule set forth is
designed in a fashion that allows defendant and outside experts to ascertain, through
testing and reporting, what sort of treatment facilities will successfully bring defendant into
compliance with its effluent limitations. Noncompliance with the terms of the Consent
Decree, including the schedule for implementation of all necessary treatment facilities,
carries with it meaningful financial consequences that are not contingent upon the success
or failure of any particular technology.
Taking all these facts into consideration, this Court holds that there is little reason
to believe that any of defendant’s violations related to the installation of treatment facilities
will “continue in the sense that [they] will not be cured even after the remedial plan imposed
by the consent decree has been fully implemented in accordance with reasonable
timetables.” See Hobet Mining, 723 F.Supp.2d at 910 (citing City of Dallas, 529 F.3d at
530) (internal quotations omitted). Therefore, plaintiffs’ Second Claim for Relief must be
dismissed as moot.
CONCLUSION
For the foregoing reasons, this Court finds that Defendant’s Motion to Dismiss [Doc.
6] should be, and hereby is, GRANTED.

Accordingly, this civil action is hereby

DISMISSED and ORDERED STRICKEN from the active docket of this Court.
It is so ORDERED.
The Clerk is hereby directed to transmit copies of this order to counsel of record.

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DATED: June 29, 2011

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