United States of America et al v. Arch Coal, Inc. et al

Filing 25

MEMORANDUM OPINION AND ORDER granting the citizen organizations' 5 MOTION to Intervene so as to permit them to be heard on the issues they raise, namely, (1) the suitability of the proposed civil penalty as it relates to the selenium viola tions, and (2) the putatively superior selenium treatment protocols; pursuant to the United States' 9 MOTION to enter the proposed consent decree, the court defers consideration at this time of whether an evidentiary hearing will be nec essary, directing that the citizen organizations, by 7/20/2011, to meet and confer with counsel for the United States pursuant to Local Rule of Civil Procedure 37.1(b) in an effort to narrow any areas of disagreement respecting the need for furt her discovery in light of the United States' voluntary disclosures in its recent briefing; the citizen organizations are permitted to move, in a particularized and specific way, to compel any further discovery that they deem necessary, wi th response and reply in accordance with the Local Rules of Civil Procedures, by 7/25/2011; if no further discovery is deemed necessary, the citizen organizations are to file a reasoned response to the United States' 5/2/2011 10 and 5 /31/2011 24 briefing respecting its request to enter the proposed consent decree, by 7/15/2011, the remaining parties may respond by 8/1/2011, with any reply filed 8/10/2011; denying the citizen organizations' 6 MOTION to consolidate.Signed by Judge John T. Copenhaver, Jr. on 6/22/2011. (cc: attys; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
UNITED STATES OF AMERICA and
STATE OF WEST VIRGINIA,
by and through the
WEST VIRGINIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION, and
COMMONWEALTH OF KENTUCKY,
by and through the,
ENERGY AND ENVIRONMENT CABINET,
Plaintiffs
v.

Civil Action No. 2:11-0133

ARCH COAL, INC. and
COAL MAC, INC. and
LONE MOUNTAIN PROCESSING, INC. and
CUMBERLAND RIVER COAL COMPANY and
MINGO LOGAN COAL COMPANY,
Defendants
MEMORANDUM OPINION AND ORDER
Pending are (1) the United States’ motion to enter the
proposed consent decree, filed May 2, 2011, (2) the motion to
intervene of Ohio Valley Environmental Coalition, Inc., Sierra
Club, and West Virginia Highlands Conservancy, Inc. (“citizen
organizations”)1, filed April 14, 2011, and (3) the citizen
Ohio Valley Environmental Coalition, Inc. ("OVEC") consists
of 1,500 members. It is a grassroots non-profit group dedicated
to environmental concerns, with a particular emphasis on water
quality. West Virginia Highlands Conservancy, Inc. ("the
Conservancy") is a non-profit group with 1,800 members. It has
for thirty years led citizen efforts to address pollution issues
in West Virginia. Sierra Club is a nonprofit organization
(continued...)
1

organizations’ motion to consolidate this civil action with Ohio
Valley Environmental Coalition, Inc. et al v. Coal-Mac, Inc., No.
3:10-0833 (“Huntington action”), presently pending before the
Honorable Robert C. Chambers, filed April 14, 2011.

The instant

case is referred to throughout as the “Charleston action.”

I.

A.

The Huntington Action

On April 14, 2010, the citizen organizations gave
notice to Coal-Mac, Inc. (“Coal-Mac”), Mingo Logan Coal Company
(“Mingo Logan”), the United States Environmental Protection
Agency (“EPA”), the Office of Surface Mining, Reclamation, and
Enforcement (“OSMRE”), and the West Virginia Department of
Environmental Protection (“WVDEP”) of their intention to
institute a civil action against Coal-Mac and Mingo Logan for
certain alleged federal environmental law violations.

(...continued)
boasting over 600,000 members and supporters nationwide, with
approximately 1,900 members residing in West Virginia. It too is
devoted to environmental concerns.
1

2

The citizen organizations allege that, despite this
notice, EPA, OSMRE, and WVDEP failed to seasonably commence a
civil or criminal action to redress the alleged violations, or an
administrative penalty action.

On June 11, 2010, however, the

United States informed the citizen organizations that it was in
negotiations with Arch Coal, Inc. (“Arch”), the parent
corporation of Coal-Mac and Mingo Logan.

The negotiations were

aimed, in part, at addressing violations of selenium discharge
limits by defendants.

One focus of the discussions was West

Virginia/National Pollution Discharge Elimination System
(“WV/NPDES”) permit WV1003763.2
The United States sought out the citizen organizations'
views at multiple points.

After months of intense negotiations,

the United States provided the citizen organizations with draft
language of the injunctive relief provisions found in the draft
proposed consent decree.

It also engaged the citizen groups and

their expert respecting the selenium treatment provisions of the
draft proposed consent decree.

Following these discussions, the

United States sent a detailed letter to the citizen organizations
purporting to address each of their concerns regarding selenium
West Virginia is authorized to administer a state-run NPDES
program pursuant to 33 U.S.C. § 1342(b). WVDEP is the permitting
authority for the state’s NPDES program.
2

3

treatment.

The United States then made revisions to the draft

proposed consent decree and finalized it.
On June 17, 2010, the citizen organizations instituted
the Huntington action for declaratory and injunctive relief.
They accused Coal-Mac and Mingo Logan of violating the Federal
Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (“Clean
Water Act” or “CWA”), and the Surface Mining Control and
Reclamation Act, 30 U.S.C. § 1201 et seq. (“SMCRA”).
The citizen organizations specifically alleged, inter
alia, that Coal-Mac and Mingo Logan are discharging selenium into
waters of the United States in persistent violation of section
301 of the Clean Water Act, 33 U.S.C. § 1311, and of the
conditions and limitations found in four

WV/NPDES permits issued

to those two defendants by the State of West Virginia.
One of the referenced WV/NPDES permits is WV1003763,
issued to Coal-Mac to regulate discharges at its Hobet No. 7
Mine.

The “permit governs discharges into the Left Fork of Right

Fork of Trace Fork of Pigeon Creek from Outfall 002.”

Ohio

Valley Environmental Coalition, Inc. v. Coal-Mac, Inc., No. 3:100833, --- F. Supp.2d ----, ----, 2011 WL 1237643, at *3 (S.D. W.
Va. Mar. 31, 2011).

The material allegations relating to
4

WV/NPDES WV1003763 are as follows:
Coal-Mac has accrued at least 440 days of violation of
the selenium limits on Outfall 002 by discharging
selenium in excess of the final effluent limitations
for selenium from Outfall 002 on 29 occasions . . . .
On the basis of Coal-Mac’s pattern of violations
of its effluent limitations . . . and the absence of
any evidence of any meaningful efforts by Coal-Mac to
eradicate the cause of the violations, Plaintiffs
allege that Coal-Mac is in continuing and/or
intermittent violation of the Clean Water Act . . . .
(Huntington Action Compl. ¶¶ 49-50).
On March 31, 2011, Judge Chambers entered a memorandum
opinion and order.

He concluded, inter alia, that the citizen

organizations were entitled to judgment as a matter of law
respecting their claim relating to WV/NPDES WV1003763.

The

effect of that ruling, however, was subject to the following
proviso:
The Consent Decree entered into by Defendant Coal-Mac
and the EPA [that is the subject of the Charleston
action] establishes a Selenium Compliance Plan with
regard to Coal-Mac’s WV/NPDES Permit 1003763, Outfall
002. The Consent Decree is currently before the court
in . . . [the Charleston action], and will only become
final if and when the court approves it. As the Court
finds that the Consent Decree [in the Charleston
action] most likely moots Plaintiffs’ claims with
respect to this permit, it STAYS the effect of this
Opinion on WV/NPDES Permit 1003763. When a decision is
reached on the Consent Decree [in the Charleston
action], the parties are DIRECTED to inform the Court
of its final disposition, at which point the Court will
determine whether Plaintiffs’ claims with regard to
Coal-Mac’s WV/NPDES Permit 1003763 should be dismissed
5

on mootness or res judicata grounds.
Ohio Valley Environmental Coalition, Inc. v. Coal-Mac, Inc., No.
3:10-0833, --- F. Supp.2d ----, ----, 2011 WL 1237643, at *27
(S.D. W. Va. Mar. 31, 2011).

B.

The Charleston Action

Plaintiffs in the Charleston action are the United
States, the State of West Virginia, by and through WVDEP, and the
Commonwealth of Kentucky, by and through the Kentucky Energy and
Environment Cabinet (“KEEC”).

The principal defendant is Arch.

The remaining defendants are Coal Mac, Lone Mountain Processing,
Inc., Cumberland River Coal Company, and Mingo Logan
(collectively “the subsidiary defendants”).
Arch manages, directs, or controls environmental
compliance at facilities owned by the subsidiary defendants.

As

a result of their coal mining and processing operations, the
subsidiary defendants generate coal slurry, wastewater, and other
spoil-type materials that consist of, or contain, pollutants
including iron, aluminum and manganese, certain solids, and
selenium.

6

On December 20, 2007, the EPA sought what appears to be
an effluent spreadsheet from Arch for various permits issued to
the subsidiary defendants.

EPA wished to ascertain all effluent

limitation exceedances occurring from January 1, 2003, through
January 1, 2008.

Arch ultimately produced the information

through December 30, 2010.

The document reflects a total of at

least 808 discharge violations.

Other illegal discharges were

cited or noticed by West Virginia and Kentucky as well.
Plaintiffs allege that the subsidiary defendants' unpermitted and
exceedance discharges caused, or have the potential to cause,
environmental harm, including degradation to various waterways
and associated aquatic ecosystems.
On March 1, 2011, plaintiffs instituted this action
against defendants.

It is brought pursuant to federal, West

Virginia, and Kentucky law.

Plaintiffs allege that defendants

have discharged, and will continue to discharge, pollutants into
waters of the United States, West Virginia, and Kentucky in
violation of those laws.
Plaintiffs also allege that defendants are in violation
of the conditions and limitations of NPDES permits issued by,
inter alia, West Virginia and Kentucky pursuant to state and
federal law.

They seek permanent injunctive relief and civil
7

penalties against defendants to halt the illegal discharges, as
authorized by the statutes proscribing the violations.

C.

The Proposed Consent Decree Lodged in the Charleston Action

Simultaneous with the institution of the Charleston
action, the United States filed the proposed consent decree
mentioned above, along with a notice reflecting its lodging with
the court (“notice of lodging”).

Some of the work preceding the

negotiated resolution is found in the memorandum in support of
the United States’ motion to enter the proposed consent decree:
The Decree was reached only after two and a half years
of arms-length negotiations between the parties, each
of whom was represented by qualified counsel. Many
issues were vehemently contested, and over the years of
negotiations there were multiple in-person meetings
along with countless phone calls and emails, resulting
in the exchange of numerous proposed injunctive relief
drafts. Negotiations were based on information provided
in response to EPA’s information request under Section
308 of the Act, information provided by WVDEP and
Kentucky, input from experienced scientists within the
relevant government agencies, input from expert
consultants hired by the United States, and visits to
facilities owned and operated by Defendants. Moreover,
the United States provided the Citizen Groups an
opportunity to comment on multiple occasions and
assessed those comments in determining the
appropriateness of the proposed settlement.
(U.S. Memo. in Supp. at 11).

8

It appears that the United States, on March 7, 2011,
published the notice of lodging in the Federal Register.

It

provided that "The Department of Justice w[ould] accept comments
relating to the proposed consent decree for a period of thirty
(30) days from the date of publication of th[e] notice."
76 Fed. Reg. 12369 (Mar. 7, 2011).

Not.,

In its March 1, 2011, notice

of lodging, the United States stated that, "If, after review and
evaluation of any comments received, the United States continues
to believe that the . . . [proposed consent decree] is fair,
reasonable, and in the public interest, it will move the Court to
enter" it.

Id.

On April 6, 2011, the citizen organizations

filed with the United States the only comments received
concerning the proposed consent decree.
The proposed consent decree specifically addresses
WV/NPDES WV1003763.
Selenium. This . . . [proposed consent decree] only
addresses violations of selenium effluent limits
relating to NPDES permit No. WV1003763, Outlet 002. The
provisions of this . . . [proposed consent decree] do
not otherwise apply to selenium effluent limits
applicable to Defendants’ Facilities or Future
Facilities.
(See Prop. Cons. Decr. ¶ 9).

Article VIII of the proposed

consent decree governs “SELENIUM INJUNCTIVE RELIEF.”
material provisions found there are as follows:
9

The

1.

Defendants have applied for the permits necessary to
implement the Selenium Compliance Plan attached as
Exhibit C to the proposed consent decree;

2.

The Selenium Compliance Plan calls for construction of
a passive biological treatment mechanism capable of
treating 60 gallons of water per minute from an 8.7
acre watershed;

3.

Within the later of 30 days after receiving the permits
or April 15, 2011, defendants must commence
construction of the Selenium Treatment System called
for in the proposed consent decree;

4.

No later than the later of 100 days after receiving the
permits or July 24, 2011, the Selenium Treatment System
must be operational;

5.

Once the Selenium Treatment System becomes operational,
and for 365 days after the December 31, 2011, Selenium
Compliance Deadline by which compliance with the
selenium limits must be achieved, defendants must
conduct rigorous sampling; and

6.

Within 180 days after commencing operation of the
Selenium Treatment System, but no later than November
1, 2011, defendants must submit to the United States
and West Virginia a Selenium Treatment System
Evaluation Report.3

The Selenium Treatment System Evaluation Report will
include:
3

(a) an evaluation of the System’s effectiveness in
removing selenium up to the time of the Selenium
Treatment System Evaluation Report; (b) an analysis of
the System’s impact, if any, on discharges of other
pollutants regulated by NPDES permit No. WV1003763;
[and] (c) an analysis, including supporting
documentation, of whether the system will ensure
compliance with Selenium Limits by the Selenium
Compliance Deadline, taking into account implementation
of any proposed changes to improve the performance of
(continued...)
10

The proposed consent decree also calls for an
Alternative Selenium Compliance Plan in the event that the
Selenium Treatment System fails to achieve certain specified
remedial benchmarks.

The Alternative Selenium Compliance Plan,

which appears to have already been presented to the United States
for approval, along with West Virginia for review, involves
installation of a “Reverse Osmosis or Active Biological Treatment
system [that will] . . . include a detailed schedule for design
and implementation of one of those systems.”

(Id. ¶ 68).

Plaintiffs have additionally “reserve[d] their right to
seek other injunctive relief for violations of the Selenium
Limits after the [December 31, 2011, deadline] . . . .”
71).

(Id. ¶

Stipulated penalties in amounts ranging from $1,000 to

$15,000 per day apply to any violations of the section of the
proposed consent decree dealing with selenium-related injunctive
relief.
Article XX of the proposed consent decree governs
termination, and provides as follows:
(...continued)
the system, if appropriate.
3

(Prop. Consent Decr. ¶ 64). Other reporting obligations appear
in paragraph 76 of the proposed consent decree.
11

After Defendants have completed the requirements
of Paragraphs 30-41 (Compliance Management System and
CMS Audit) of this Decree and have thereafter
maintained continuous satisfactory compliance with
Section VI (Compliance Requirements), Section VII
(Injunctive Relief), and Section IX (Reporting
Requirements) of this Consent Decree for a period of
four years; have completed the requirements of Section
VIII (Selenium Injunctive Relief); and have paid the
civil penalty and any accrued stipulated penalties as
required by this Consent Decree, Defendants may serve
upon the United States and the States a Request for
Termination, stating that Defendants have satisfied
those requirements, together with all necessary
supporting documentation.
(See Prop. Cons. Decr. ¶ 136 (emphasis added)).

D.

The Citizen Organizations’ Intervention Request

On April 14, 2011, the citizen organizations moved to
intervene in this action “for the limited purpose of objecting to
and challenging the proposed consent decree’s resolution of
claims related to unlawful selenium discharges regulated by
WV/NPDES . . . WV1003763.”

(Mot. to Interv. at 2).

They assert,

inter alia, that “flaws in the Proposed Consent Decree . . . .
will necessitate discovery in this matter.”

(Id. n.2).

In their

motion to consolidate, the citizen organizations suggest that
they may ultimately seek an evidentiary hearing.

12

The citizen organizations’ individual members assert
that they have suffered, or may suffer, injury to their
aesthetic, recreational, and environmental interests as a result
of Coal-Mac’s unlawful selenium discharges related to WV/NPDES
WV1003763.

Cindy Rank is a long-time member of the Sierra Club

and chairs the Conservancy’s mining committee.

She notes as

follows:
As I understand it, Coal-Mac, Inc., holds Clean
Water Act WV/NPDES Permit[] WV0003763 . . . which
regulate[s] discharges . . . to the Right Fork of Trace
Fork of Pigeon Creek upstream of the town of Scarlet. .
. .
Streams in these areas are known to have
unacceptable amounts of selenium. It angers me that
Coal-Mac is violating selenium limits set forth in
these permits. Were Coal-Mac to comply with the
company's permit limits for selenium it would improve
the water quality and protect aquatic life downstream.
It would also greatly increase my own enjoyment of the
streams.
(Aff. of Cindy Rank at 3).
She

describes the “scene upstream from Scarlet[, WV,]

along Trace Fork” of Pigeon Creek as “lovely, especially the bit
of waterfall near the houses at the end of the paved road.”
at 4).

(Id.

She has “delighted in splashing” the cool water of Trace

Fork of Pigeon Creek with her hands.

(Id.)

She notes, however,

that her “enjoyment of that area is . . . hampered by the
knowledge the discharges upstream are selenium laden and threaten
13

the aquatic life in the area.” (Id.)

She plans on visiting the

Scarlet and Trace Fork area of Pigeon Creek in the future.
Vivian Stockman is a long-time member of both OVEC and
the Conservancy.

She states that she has frequently traveled in

the vicinity of Coal-Mac’s mining operation regulated by WV/NPDES
Permit WV1003763.

She notes that she has “visited Right Fork of

Trace Fork of Pigeon Creek above the town of Scarlet immediately
downstream of the discharges from the Coal Mac permits” and that
she intends to return to this area in the future.
Vivian Stockman at 3).

(Am. Decl. of

She also observes that:

[t]he stream here is small but lovely, very inviting on
a summer day. Mint grows along the stream and
wildflowers, too. But the water seems strangely and
disturbingly devoid of life. When I picked up rocks to
look, I saw few critters nestled underneath and I saw
no minnows. I am concerned that selenium may be having
an effect on the aquatic life in this stream.
(Id.)

She elaborates further on the damage that she perceives

Coal Mac is responsible for:
I . . . understand that Coal-Mac has
violating the selenium discharge limits in
WV0003763]. The selenium pollution coming
mines greatly concerns me and decreases my
the reaches downstream of the mines.

been
[WV/NPDES
from the
enjoyment of

I can’t help but wonder about what is going on
upstream -- whether pollution from the mines is harming
the creatures that depend on clean water. My enjoyment
of the stream is harmed because of my concern over
water pollution. I am also very concerned about the
cumulative impacts of water pollution coming from the
mines upstream.
14

If Coal-Mac complied with selenium permit limits
and was meeting Clean Water Act requirements, it would
increase my enjoyment of the streams downstream from
the discharges.
(Id. at 2).
The discussion proceeds in two parts.

First, the court

analyzes the intervention request, including the governing law,
Article III standing considerations, the limitations, if any,
that might be placed upon the participation of intervenors of
right in a federal civil case, and the further development of
this action necessary for the mature consideration of the
proposed consent decree.

Second, the court addresses the

consolidation request.

II.

A.

Motion to Intervene

1.

The Law Governing Intervention

The intervention request is based upon Federal Rule of
Civil Procedure 24(a)(1) and CWA section 505(b)(1)(B), 33 U.S.C.
§ 1365(b)(1)(B).

Rule 24(a)(1) provides in pertinent part that
15

“the court must permit anyone to intervene who . . . is given an
unconditional right to intervene by a federal statute . . . .”
Id.

Section 1365(b)(1)(B) states as follows:
No [citizen suit] . . . may be commenced . . . if the
Administrator or State has commenced and is diligently
prosecuting a civil or criminal action in a court of
the United States, or a State to require compliance
with the standard, limitation, or order, but in any
such action in a court of the United States any citizen
may intervene as a matter of right.

33 U.S.C. § 1365(b)(1)(B) (emphasis added); Chesapeake Bay
Foundation v. American Recovery Co., Inc., 769 F.2d 207, 209 (4th
Cir. 1985).

2.

Standing to Support Intervention

Defendants assert that the citizen organizations lack
standing to intervene.

They contend that the citizen

organizations “assert only amorphous claims that distinctly are
not particularized to the selenium discharges at issue.”
Resp. to Mot. to Interv. at 2).

(Defs.’

The assertion appears aimed at

the first two requirements for Article III standing:
[The citizen organizations’ members who assert standing
have failed to demonstrate either] (i) a concrete
injury or (ii) that whatever harm may exist is
traceable to the upstream discharges from the outlet.
In the absence of any supporting factual information,
the Court has no basis to conclude that . . . [the
members] suffer[] concrete harm from selenium or that
16

the harm can be traced to the selenium discharges from
the Arch outlet.
(Id. at 4).
Some courts of appeal require that those seeking to
intervene in an action must demonstrate Article III standing, an
element of justiciability, as a constitutional prerequisite.4
Allen v. Wright, 468 U.S. 737, 750 (1984).

Standing “tends to

assure that the legal questions presented to the court will be
resolved, not in the rarefied atmosphere of a debating society,
The parties and citizen organizations do not discuss an
apparent split of authority in the circuits respecting the
necessity of putative intervenors demonstrating Article III
standing. See, e.g., Tyler R. Stradling & Doyle S. Byers,
Intervening in the Case (or Controversy): Article III Standing,
Rule 24 Intervention, and the Conflict in the Federal Courts,
2003 B.Y.U. L. Rev. 419, 424-25 (2003) (“Eight of the federal
circuits have considered whether Article III standing is required
of intervenors, and their holdings are split. This split is a
result of two different approaches to standing: some courts view
standing as a requirement on every party that comes before the
court while other courts view standing as a requirement the court
must ensure is satisfied by at least one party before it can
maintain jurisdiction.”); Juliet Johnson Karastelev, On the
Outside Seeking In: Must Intervenors Demonstrate Standing to Join
a Lawsuit?, 52 Duke L.J. 455, 467 (2002).
At least insofar as permissive intervention is concerned,
the author of the article immediately preceding notes our court
of appeals’ decision in Shaw v. Hunt, 154 F.3d 161, 166 (4th Cir.
1998). In Shaw, it was observed as follows: “As previously
noted, plaintiff-intervenors' right to party status -- given
their lack of standing -- is dependent upon the existence of at
least one plaintiff with Article III standing.” Id. at 167.
The brief language in Shaw does not constitute a definitive
analysis on the point. The court need not further address the
issue in view of the standing analysis found infra.
4

17

but in a concrete factual context conducive to a realistic
appreciation of the consequences of judicial action.”

Valley

Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 472 (1982).
To satisfy the standing prerequisite, an intervenor
must show, at an “irreducible constitutional minimum,” that (1)
it has suffered an “‘injury in fact’” that is concrete and
particularized, and is actual or imminent, (2) the injury is
fairly traceable to the challenged action of the defendant; and
(3) the injury likely will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(citations omitted).
With respect to the standing inquiry in water quality
cases, our court of appeals recently observed as follows:
[A] plaintiff is not required to show environmental
harm to establish an injury in fact. . . . [Our
precedent discloses] that CLEAN member Shealy
established an injury in fact by asserting a reasonable
fear and concern about the effects of the facility's
discharge on his use and enjoyment of his lake, which
is located four miles downstream of Gaston's facility.
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629
F.3d 387, 394 (4th Cir. 2011) (emphasis added) (“Gaston Copper
II”);

Ohio Valley Environmental Coalition v. Aracoma Coal Co.,

556 F.3d 177, 193 (4th Cir. 2009) (further observing that
18

“environmental plaintiffs adequately allege injury in fact when
they aver that they use the affected area and are persons for
whom the aesthetic and recreational values of the area will be
lessened by the challenged activity.”) (internal quotation marks
omitted) (quoting Friends of the Earth, Inc. v. Laidlaw
Environmental Servs., 528 U.S. 167, 183 (2000)) (quoting Sierra
Club v. Morton, 405 U.S. 727, 735 (1972)).
For many years the Supreme Court and our court of
appeals have similarly, and consistently, observed that damage to
an individual’s aesthetic or recreational interests “may be
vindicated in the federal courts.”

See, e.g., Laidlaw, 528 U.S.

at 184; Friends of the Earth, Inc. v. Gaston Copper, 204 F.3d
149, 154 (4th Cir. 2000) (“Gaston Copper I”)(en banc) (citing
cases).

In the end, “If the plaintiff can show that his claim to

relief is free from excessive abstraction, undue attenuation, and
unbridled speculation, the Constitution places no further
barriers between the plaintiff and an adjudication of his
rights.”

Gaston Copper I, 204 F.3d at 155.
If an individual with standing belongs to a

representative organization wishing a role in the litigation, the
court next examines if the organizational plaintiff may properly
appear.

That appearance will be authorized if the requirements
19

for representational standing are met:
[A]n association may have standing to sue in federal
court either based on an injury to the organization in
its own right or as the representative of its members
who have been harmed. An organization has
representational standing when (1) at least one of its
members would have standing to sue in his own right;
(2) the organization seeks to protect interests germane
to the organization's purpose; and (3) neither the
claim asserted nor the relief sought requires the
participation of individual members in the lawsuit.
Gaston Copper I, 204 F.3d at 155 (citations omitted).

3.

Standing Analysis

Defendants offer a number of assertions designed to
demonstrate that both Ms. Rank and Ms. Stockman, and thus the
citizen organizations to which they belong, lack standing.
Defendants first appear to assert that Ms. Rank and Ms. Stockman
do not own property in the area downstream from the outfall
responsible for the selenium discharges in this action.
ownership interest is not required.

An

See, e.g., American Canoe

Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 517 (4th Cir. 2003)
(“In the environmental litigation context, the standing
requirements are not onerous. ‘[E]nvironmental plaintiffs
adequately allege injury in fact when they aver that they use the
affected area and are persons “for whom the aesthetic and
20

recreational values of the area will be lessened” by the
challenged activity.”’”) (quoting Laidlaw, 528 U.S. at 183
(quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)).
Next, defendants contend that Ms. Rank and Ms. Stockman
are simply “roving environmental ombudsm[e]n seeking to right
environmental wrongs wherever . . . [they] might find them.”
Gaston Copper I, 204 F.3d at 157.

Ms. Rank is aware of Coal-

Mac’s selenium discharges under WV/NPDES WV0003763.

She

specifically states that compliance by Coal-Mac would improve
water quality in the area, protect aquatic life, and, most
importantly, greatly increase her enjoyment of the water in the
area.

She is quite familiar with the vicinity of the discharges,

describing the location in detail.

She also specifies her use of

the waters downstream and notes that she will visit the area in
the future.
Ms. Stockman frequently travels in southern West
Virginia and mentions specifically the area around Coal-Mac's
mining operation regulated by WV/NPDES WV1003763.
intends to return to this area in the future.

She also

She describes the

location downstream and the harm that she perceives as a result
of Coal-Mac’s selenium discharges under WV/NPDES WV1003763.
Additionally, if Coal-Mac brought its discharges into compliance
21

with its permit, Ms. Stockman states, like Ms. Rank, that it
would increase her enjoyment of the streams in the area.
These are the precise type of concrete and
individualized interests sanctioned by our court of appeals’
decisions in Gaston Copper I, Gaston Copper II, and OVEC.
Defendants' contention is thus not well taken.
Third, defendants assert that neither Ms. Rank nor Ms.
Stockman have alleged that their injuries are fairly traceable to
Coal-Mac’s actions.

Ms. Rank alleges that (1) streams in the

area have unacceptable amounts of selenium, (2) Coal-Mac has
violated its selenium limits under the relevant permit, and (3)
water quality and aquatic life would improve if Coal-Mac
complied.

As noted, Ms. Stockman asserts that Coal-Mac’s

compliance with its selenium permit limits would increase her
enjoyment of the areas downstream from the discharges.

These

tailored allegations satisfy the second prong of the standing
inquiry.

There is a clear link alleged between Coal-Mac’s

selenium exceedances and Ms. Rank’s and Ms. Stockman’s alleged
injuries.
Fourth, defendants contend that Ms. Rank’s “interest is
in something other than the stream at issue in this decree.”
22

(Def.’s Resp. at 3).

They contend that her interest in visiting

“Trace Fork” is essentially irrelevant inasmuch as the permitted
discharge flows first into an unnamed tributary, then into the
Left Fork of Trace Fork, and only then into Trace Fork.

They

note as well that Ms. Stockman appears to have visited the Right
Fork, as opposed to the Left Fork, of Trace Fork, the latter of
which is where the permitted discharges occur.
It is the case that the allegations identified by
defendants could have been more particularized.

If defendants

persist in their standing challenge hereafter, the court will
require further detail respecting how far downstream the selenium
effect might be found and the precise location where Ms. Rank and
Ms. Stockman use the waterway.

At this stage, however, at least

four considerations are noteworthy.

First, as observed earlier,

both Ms. Rank and Ms. Stockman contend that Coal-Mac’s compliance
with its selenium permit limits would increase their enjoyment of
the areas downstream from the discharges.

Second, defendants

have consented in the Charleston action to the installation of a
costly selenium treatment protocol relating to discharges under
WV/NPDES Permit WV1003763 that flow downstream.5

Third, Judge

The United States’ memorandum in support of its motion to
enter the proposed consent decree elaborates upon the
(continued...)
5

23

Chambers, in the Huntington action, relied upon the same
affidavits filed in this action to conclude that Ms. Rank and Ms.
Stockman had satisfied the standing rubric.

Ohio Valley

Environmental Coalition, Inc. et al v. Coal-Mac, Inc., No.
3:10-0833, --- F. Supp. 2d ---, ---, 2011 WL 1237643, at *9-11
(S.D. W. Va. Mar 31, 2011).

It is noteworthy as well that Judge

Chambers entered judgment as a matter of law in favor of the
citizen organizations respecting their claims relating to
WV/NPDES WV1003763.

All of these considerations taken together

sufficiently establish the necessary link at this stage between
the harms alleged by Ms. Rank and Ms. Stockman and the permit
exceedances.

(...continued)
circumstances that gave rise to defendants’ apparent concession:
5

Defendants disclosed [midway through negotiations with
the United States] that Coal Mac, Inc. was out of
compliance with effluent limits for selenium applicable
to Outlet 002 for NPDES permit No. WV1003763. Given
the unique treatability issues presented by selenium,
the parties began negotiating selenium-specific
injunctive relief for that outlet. Defendants hired
CH2M Hill, a consultant with experience implementing
selenium treatment technologies at coal mining
operations in West Virginia, to develop an
outlet-specific treatment plan.
(U.S. Memo. in Supp. at 5).
24

Defendants next assert that the citizen organizations
have not submitted scientific evidence of elevated selenium
levels at the stream locations visited by Ms. Rank and Ms.
Stockman.

The court of appeals in Gaston Copper I explained a

similar hurdle set by the district court in that case:
The [district] court pointed to the supposed absence of
certain types of evidence: “No evidence was presented
concerning the chemical content of the waterways
affected by the defendant's facility. No evidence of
any increase in the salinity of the waterways, or any
other negative change in the ecosystem of the waterway
was presented.” The district court therefore concluded
that “[n]o evidence was presented that any plaintiff
member has been adversely affected by the defendant's
conduct.”
Gaston Copper I, 204 F.3d at 155.

The court of appeals parted

company with the analysis:
We disagree. CLEAN has surpassed the threshold that
Article III and the Clean Water Act set for
establishing a case or controversy. Wilson Shealy is a
classic example of an individual who has suffered an
environmental injury in fact fairly traceable to a
defendant's conduct and likely to be redressed by the
relief sought. The trial court erred therefore in
creating evidentiary barriers to standing that the
Constitution does not require and Congress has not
embraced. In fact, the legislative branch has invited
precisely the type of suit brought by CLEAN. The
judicial branch is not at liberty to impede its
resolution on the merits.
Id. at 155-56.

Defendants’ contention lacks merit.

Based upon the foregoing discussion, the court
concludes that Ms. Rank and Ms. Stockman have adequately alleged
25

the three prerequisites for Article III standing.

Inasmuch as

(1) at least one of them is a member of each of the citizen
organizations, (2) the citizen organizations seek to protect
interests related to their purposes, and (3) no party asserts
that either Ms. Rank or Ms. Stockman need personally be involved
in this action, the requirements for representational standing
are likewise satisfied.

Finally, satisfaction of the Article III

standing requirement satisfies the rigors of its statutory
counterpart.

See Gaston Copper I, 204 F.3d at 155

(“Thus, if a

Clean Water Act plaintiff meets the constitutional requirements
for standing, then he ipso facto satisfies the statutory
threshold as well.”).
Based upon the foregoing discussion, it is ORDERED that
the citizen organizations’ motion to intervene be, and it hereby
is, granted so as to permit them to be heard on the issues they
raise, namely, (1) the suitability of the proposed civil penalty
as it relates to the selenium violations, and (2) the putatively
superior selenium treatment protocols.6

The proposed complaint in intervention appears to address
issues in addition to those identified by the citizen
organizations in the briefing related to their intervention
request. The court, accordingly, does not order the proposed
complaint in intervention filed at this time.
6

26

4. The Necessity of Discovery

The United States notes, without objection, that the
citizen organizations challenge only “the resolution of
approximately four percent of the violations” resolved by the
proposed consent decree in the Charleston action.
Mot. to Interv. at 1, 4 n.2).

(U.S. Resp. to

As noted, however, as to that four

percent alone, the citizen organizations suggest that they should
be permitted discovery and an evidentiary hearing.

The United

States’ position is encapsulated below:
[S]hould the Court grant intervention, the United
States respectfully requests that the Court place
reasonable limits on the Citizen Groups’ participation,
given the procedural posture of this case. The
settlement . . . is the product of lengthy negotiations
supported by substantial information gathering. Under
well-settled case law, this Court is tasked with
determining whether the proposed Decree is fair,
reasonable, adequate, and consistent with public
interest -- not with conducting a trial on the merits
after full discovery. Further factual discovery at this
point in time is neither necessary nor appropriate,
particularly in the context of a fair settlement
reached by the government on behalf of the public.
(Id. at 2).

The United States asserts that if intervention is

granted, the citizen organizations should be limited to filing
legal briefs and appealing the proposed consent decree if it is
entered.

Defendants join in the United States’ contentions.

27

The citizen organizations respond that due process
demands they be allowed to gather and present sufficient
information to the court in order to facilitate a thorough
evaluation of their objections to the proposed consent decree.
They point to an insufficient record on two issues central to the
fairness, adequacy, and reasonableness of the accord:
First, the United States has been consistently
unwilling to explain how it arrived at the civil
penalty in the Consent Decree as it relates to the
selenium violations that are part of Proposed
Intervenors’ CWA citizen suit. That information is
crucial to evaluating Proposed Intervenors’ claims that
the Consent Decree is not in the public interest
because the record does not establish that the civil
penalty is sufficient to recoup the company’s economic
benefit from non-compliance and thus may be
insufficient to deter future violations. Although the
United States asserts that the penalty is greater than
Arch Coal’s economic benefit from violating the CWA, it
has provided no justification for that conclusion.
Second, the United States has not meaningfully
responded to Proposed Intervenors’ concerns that the
selenium-related injunctive relief in the Consent
Decree may fail to achieve compliance with the Clean
Water Act. Proposed Intervenors have repeatedly raised
the concern, supported by sound science, that the trial
period for the passive biological treatment system
improperly ends before the system’s performance in cold
weather high flow conditions can be evaluated.
(Citiz. Orgs. Reply at 9-10).

The citizen organizations seek

eight weeks for discovery, voluntarily limiting themselves to (1)
a period of two weeks to submit requests for production, (2) the
taking of three depositions, and (3) the service of five
interrogatories.
28

As the citizen organizations observe, the court is
obliged to assess the fairness, adequacy, and reasonableness of
the proposed consent decree.

That obligation is not without

substance:
[The court must] ensure that it is able to reach “an
informed, just and reasoned decision.” In particular,
the “court should consider the extent of discovery that
has taken place, the stage of the proceedings, the want
of collusion in the settlement and the experience of
plaintiffs' counsel who negotiated the settlement.”
United States v. North Carolina, 180 F.3d 574, 581 (4th Cir.
1999) (citations omitted) (emphasis added).

At the same time, it

is also well established that “an intervenor is admitted to the
proceeding as it stands, and in respect of the pending issues,
but is not permitted to enlarge those issues or compel an
alteration of the nature of the proceeding.”

Vinson v.

Washington Gas Light Co., 321 U.S. 489, 498 (1944); 7 Cyc. of
Federal Proc. § 24:22 (3rd ed. elec. 2011); see David Shapiro,
Some Thoughts on Intervention Before Courts, Agencies, and
Arbitrators, 81 Harv. L. Rev. 721, 754 (1968)(“Another area of
potential limitation is on the injection of new issues or the
addition of parties by the . . . [intervenor]. Here again the
administrative agencies have acted with some success in limiting
intervention to particular issues and in resisting undue
expansion of the proceedings.”).
29

To avoid the unnecessary prolongation and
multiplication of the proceedings, some courts have imposed
conditions upon intervenors of right such as the citizen
organizations here.

The propriety of that course of action has

been the subject of some debate, much of which surrounds the
impact of the Advisory Committee Notes to Rule 24.

Compare,

e.g., Fed. R. Civ. P. 24(a), Advis. Comm. Notes (“An intervention
of right under the amended rule may be subject to appropriate
conditions or restrictions responsive among other things to the
requirements of efficient conduct of the proceedings.”) (emphasis
added); United States v. Albert Inv. Co., Inc.,

585 F.3d 1386,

1396 (10th Cir. 2009) (quoting and applying Advisory Committee
Notes); Fund For Animals, Inc. v. Norton, 322 F.3d 728, 737 n.11
(D.C. Cir. 2003) (same); Beauregard, Inc. v. Sword Services LLC,
107 F.3d 351, 353 (5th Cir. 1997) (affirming “a firmly
established principle that reasonable conditions may be imposed
even upon one who intervenes as of right”); United States v. Duke
Energy Corp., 171 F. Supp. 2d 560, 565 (M.D.N.C. 2001)
(recognizing the court’s ability to impose limitations on
intervention as of right, such as restricting an intervenor’s
“ability to initiate unilateral independent discovery without
leave of the court”), with Edwards v. City of Houston, 78 F.3d
30

983, 1003 (5th Cir. 1996) (en banc) (noting as follows in case
involving intervening applicants challenging a consent decree:
“Lastly, the applicants were allowed to argue their objections to
the court, but did so without the benefit of any discovery. . . .
The perfunctory process employed in this case belittles our
notion of fairness.

That these applicants were deprived not only

of the opportunity to participate in this proceeding with the
rights and privileges of full parties, but also of the
opportunity to adequately prepare and present objections to the
proposed decree, precludes us from concluding that the district
court's denial of intervention was harmless.”); Cotter v.
Massachusetts Ass'n of Minority Law Enforcement Officers, 219
F.3d 31, 36 (1st Cir. 2000) (“The traditional sense was that a
court could not impose conditions on an intervention as of right.
However, the 1966 Amendment to Federal Rule of Civil Procedure
24(a) may have changed this rule. District courts have frequently
imposed such conditions, and courts of appeals have sometimes
embraced them, but courts of appeals have commonly reserved the
issue, leaving the extent to which such conditions may be imposed
unclear . . . .”) (citations omitted); United States v. Ketchikan
Pulp Co., 74 F.R.D. 104, 108 (D.C. Alaska 1977) (“The government,
while agreeing that intervention is proper, seeks an order
limiting the rights of the intervenors. Nothing in the . . .
31

[Federal Water Pollution Control Act] supports this theory of
limited intervention.”).
The leading commentators on the Federal Rules of Civil
Procedure, however, take a dim view of the Advisory Committee’s
position mentioned supra:
The Advisory Committee cites no authority for this
statement and it may be said here, as was said of the
Committee in a similar context, “the Advisory
Committee's qualification in the Notes of important
textual language is a questionable technique.” Thus,
however desirable it may be that the courts have the
power to impose reasonable conditions on intervention
of right, the fact that the Committee Note says that
they have the power does not create the power if it
does not otherwise exist. Nevertheless several courts
have shown a willingness to accept the Note at face
value and to allow the imposition of conditions on an
intervenor of right. So long as these conditions are
reasonable and are of a housekeeping nature, this view
is likely to prevail. It seems very doubtful, however,
that the court has the right to make significant
inroads on the standing of an intervenor of right; in
particular, it should not be allowed to limit the
intervenor in the assertion of counterclaims or other
new claims.
7C Charles A. Wright et al., Federal Practice and Procedure §
1922 (3rd ed. elec. 2011).7
There is language supportive of the citizen organizations'
position on unrestricted participation in Columbus-America
Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 469–70
(4th Cir. 1992). The court of appeals, however, did not decide
whether restrictive conditions on intervenors of right are ever
appropriate. Additionally, the case did not involve a proposed
consent decree crafted over a substantial period of time by an
(continued...)
7

32

In any event, the issue need not be resolved at this
time.

In its May 2, 2011, memorandum in support of its motion to

enter the proposed consent decree, and in its reply brief filed
May 31, 2011, the United States offers significant detail
respecting the two issues to which the citizen organizations take
exception.

The United States attaches, and discusses, materials

respecting (1) calculation of the proposed civil penalty, and (2)
the reasons underlying the selection of the proposed selenium
treatment protocol.
The court has not as yet had the benefit of the citizen
organizations’ reasoned views on the recent details offered by
the United States.8

For this reason, the court defers

(...continued)
agency of the federal sovereign with regulatory jurisdiction over
the party to be charged thereunder.
7

On May 19, 2011, the citizen organizations sought leave to
file a response to the United States’ motion to enter the consent
decree. The proposed response attached to that motion states
only as follows:
8

Proposed Intervenors oppose . . . [the] Motion to Enter
Consent Decree . . . for the reasons articulated in
their [April 6, 2011] comments on the Proposed Consent
Decree and the arguments made in support of their
motion to intervene and to consolidate. Proposed
Intervenors incorporate those by reference as if
written herein.
(Citizen Orgs. Prop. Resp at 1). It would be the court’s
expectation that the citizen organizations would fully address
(continued...)
33

consideration at this time of whether an evidentiary hearing will
be necessary.
1.

The court additionally ORDERS as follows:

That the citizen organizations be, and they hereby are,
directed no later than July 20, 2011, to meet and
confer with counsel for the United States pursuant to
Local Rule of Civil Procedure 37.1(b) in an effort to
narrow any areas of disagreement respecting the need
for further discovery in light of the United States’
voluntary disclosures in its recent briefing;

2.

That to the extent further disagreement remains on the
necessity of further discovery, the citizen
organizations be, and they hereby are, permitted to
move, in a particularized and specific way, to compel
no later than July 25, 2011, any further discovery that
they deem necessary, with response and reply in
accordance with the Local Rules of Civil Procedures;

3.

That if no further discovery is deemed necessary, the
citizen organizations be, and they hereby are, directed
to file no later than July 15, 2011, a reasoned

(...continued)
why the United States’ position, stated in its May 2 and May 31,
2011, filings, does not adequately explain the choices reflected in
the proposed consent decree.
8

34

response to the United States’ May 2 and May 31, 2011,
briefing respecting its request to enter the proposed
consent decree, to which the remaining parties may
respond by August 1, 2011, with any reply filed no
later than August 10, 2011.

B.

Motion to Consolidate
The citizen organizations move to consolidate the

claims in the Huntington and Charleston actions regarding the
selenium exceedances at WV/NPDES WV1003763.

Federal Rule of

Civil Procedure 42(a) provides as follows:
If actions . . . involve a common question of law or
fact, the court may: . . . join for hearing or trial
any or all matters at issue in the actions; . . .
consolidate the actions; or . . . issue any other
orders to avoid unnecessary cost or delay.
Fed. R. Civ. Proc. 42(a).
Our court of appeals has given the district courts a
wide berth on questions arising under Rule 42(a), recognizing the
superiority of the trial court in determining how best to
structure similar pieces of litigation.

See A/S J. Ludwig

Mowinckles Rederi v. Tidewater Const. Co., 559 F.2d 928, 933 (4th
Cir. 1977) (“District courts have broad discretion under
F.R.Civ.P. 42(a) to consolidate causes pending in the same
35

district.”)

Nevertheless, the court of appeals has also provided

guidelines for district courts engaging in the discretionary
exercise.

See Arnold v. Eastern Air Lines, Inc., 681 F.2d 186,

193 (4th Cir. 1982):
The critical question for the district court in the
final analysis was whether the specific risks of
prejudice and possible confusion were overborne by the
risk of inconsistent adjudications of common factual
and legal issues, the burden on parties, witnesses and
available judicial resources posed by multiple
lawsuits, the length of time required to conclude
multiple suits as against a single one, and the
relative expense to all concerned of the single-trial,
multiple-trial alternatives.
Id. at 193.
As the citizen organizations concede, there is little
risk of inconsistent adjudications.

Judge Chambers has held in

abeyance any further development in the Huntington action of the
permit exceedances at issue in the Charleston action.

He has

also forecast that the proposed consent decree likely moots the
claim in the Huntington action on that point.

In view of Judge

Chambers’ ruling, and the intervention of the citizen
organizations allowed by the court herein, nothing appears to be
gained by consolidation.

Judge Chambers reached a similar

conclusion recently in the Huntington action.

36

Ohio Valley

Environmental Coalition, Inc. et al v. Coal-Mac, Inc., No. 3:100833, slip op. at 3 (S.D. W. Va. Jul. 16, 2011).9
The court, accordingly, ORDERS that the citizen
organizations’ motion to consolidate be, and it hereby is,
denied.
The Clerk is requested to transmit this written opinion
and order to all counsel of record and to any unrepresented
parties.
DATED:

June 22, 2011

John T. Copenhaver, Jr.
United States District Judge

The citizen organizations emphasize that they seek a
narrow consolidation. They assert the court could join before a
single judge all claims for selenium exceedances under WV/NPDES
WV1003763. Again, little is gained by that approach. It would
involve either (1) severing out important provisions of an
interwoven and comprehensive consent decree, or (2) transferring
a claim in a complex environmental case to a judicial officer who
did not adjudicate the matter of liability related thereto. Both
options are unsuitable.
9

37