Ohio Valley Environmental Coalition et al v. Fola Coal Company, LLC
Filing
80
MEMORANDUM OPINION AND ORDER granting plaintiffs' 55 MOTION for Partial Summary Judgment on Jurisdictional Issues; denying defendant's 57 MOTION for Summary Judgment; granting summary judgment in favor of plaintiffs on the issue of jurisdiction. Signed by Judge Robert C. Chambers on 7/30/2014. (cc: counsel of record; any unrepresented parties) (taq)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
OHIO VALLEY ENVIRONMENTAL
COALITION, WEST VIRGINIA
HIGHLANDS CONSERVANCY,
and SIERRA CLUB,
Plaintiffs,
v.
CIVIL ACTION NO. 2:13-5006
FOLA COAL COMPANY, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs’ Motion for Partial Summary Judgment on
Jurisdictional Issues (ECF No. 55) and Defendant’s Motion for Summary Judgment (ECF No.
57). For the reasons explained below, Plaintiffs’ Motion is GRANTED and Defendant’s Motion
is DENIED. Specifically, the Court GRANTS summary judgment in favor of Plaintiffs on the
issue of jurisdiction.
I. Background
Plaintiffs Ohio Valley Environmental Coalition (“OVEC”), West Virginia Highlands
Conservancy, and Sierra Club filed this case pursuant to the citizen suit provisions of the Federal
Water Pollution Control Act (“Clean Water Act” or “CWA”), 33 U.S.C. § 1251 et seq., and the
Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. § 1201 et seq. Compl.,
ECF No. 1. Before proceeding to the parties’ arguments, the Court will first discuss the relevant
regulatory framework and then the factual background of this case.
1
A. Regulatory Framework
The primary goal of the CWA is “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To further this goal, the Act
prohibits the “discharge of any pollutant by any person” unless a statutory exception applies; the
primary exception is the procurement of a National Pollutant Discharge Elimination System
(“NPDES”) permit. 33 U.S.C. §§ 1311(a), 1342. Under the NPDES, the U.S. Environmental
Protection Agency (“EPA”) or an authorized state agency can issue a permit for the discharge of
any pollutant, provided that the discharge complies with the conditions of the CWA. 33 U.S.C. §
1342. A state may receive approval to administer a state-run NPDES program under the
authority of 33 U.S.C. § 1342(b). West Virginia received such approval, and its NPDES program
is administered through the West Virginia Department of Environmental Protection
(“WVDEP”). 47 Fed. Reg. 22363-01 (May 24, 1982). All West Virginia NPDES permits
incorporate by reference West Virginia Code of State Rules § 47-30-5.1.f, which states that
“discharges covered by a WV/NPDES permit are to be of such quality so as not to cause
violation of applicable water quality standards promulgated by [West Virginia Code of State
Rules § 47-2].” This is an enforceable permit condition. See, e.g., OVEC v. Elk Run Coal Co.,
Inc., No. 3:12-cv-0785, 2014 WL 29562, at *3, 6 (S.D. W. Va. Jan. 3, 2014).
Coal mines are also subject to regulation under the SMCRA, which prohibits any person
from engaging in or carrying out surface coal mining operations without first obtaining a permit
from the Office of Surface Mining Reclamation and Enforcement (“OSMRE”) or an authorized
state agency. 30 U.S.C. §§ 1211, 1256, 1257. A state may receive approval to administer a staterun surface mining permit program under the authority of 30 U.S.C. § 1253. In 1981, West
Virginia received conditional approval of its state-run program, which is administered through
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the WVDEP pursuant to the West Virginia Surface Coal Mining and Reclamation Act
(“WVSCMRA”). W. Va. Code §§ 22-3-1 to -33; 46 Fed. Reg. 5915-01 (Jan. 21, 1981).
Regulations passed pursuant to the WVSCMRA require permittees to comply with the terms and
conditions of their permits and all applicable performance standards. W. Va. Code R. § 38-23.33.c. One of these performance standards requires that mining discharges “shall not violate
effluent limitations or cause a violation of applicable water quality standards.” Id. § 38-2-14.5.b.
Another performance standard mandates that “[a]dequate facilities shall be installed, operated
and maintained using the best technology currently available . . . to treat any water discharged
from the permit area so that it complies with the requirements of subdivision 14.5.b of this
subsection.” Id. § 38-2-14.5.c.
B. Factual Background
Defendant holds WV/NPDES Permit WV1014005 and West Virginia Surface Mining
Permit S200995, which regulate Defendant’s mining activities at Surface Mine No. 3, located in
Clay and Nicholas Counties, West Virginia. Compl. ¶¶ 33-35. This mine’s Outfall 29 discharges
into Stillhouse Branch, close to the Branch’s confluence with Twentymile Creek. Id. ¶ 36.
Defendant’s WV/NPDES Permit WV1014005 incorporates by reference the WV/NPDES
Rules for Coal Mining and Facilities found in Title 47, Series 30, which include § 47-30-5.1.f:
“The discharge or discharges covered by a WV/NPDES permit are to be of such quality so as not
to cause violation of applicable water quality standards promulgated by [West Virginia Code of
State Rules § 47-2]. . . .” WV/NPDES Permit WV1014005 § C (2009 renewal of permit, noting
that, among the terms and conditions incorporated by reference from the WV/NPDES Rules for
Coal Mining and Facilities are the provisions found in § 47-30-5.1), ECF No. 57-8. This
incorporation by reference is in accordance with state rules, which require that the water quality
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standards rule—among other rules —“be incorporated into the WV/NPDES permits either
expressly or by reference.” W. Va. Code R. § 47-30-5.
West Virginia’s narrative water quality standards are violated if wastes discharged from a
surface mining operation “cause . . . or materially contribute to” 1) “[m]aterials in concentrations
which are harmful, hazardous or toxic to man, animal or aquatic life” or 2) “[a]ny other condition
. . . which adversely alters the integrity of the waters of the State.” Id. § 47-2-3.2.e, -3.2.i.
Additionally, “no significant adverse impact to the chemical, physical, hydrologic, or biological
components of aquatic ecosystems shall be allowed.” Id. § 47-2-3.2.i. In their Complaint,
Plaintiffs allege that Defendant violated these narrative water quality standards and, therefore,
the CWA and the SMCRA, by discharging excessive amounts of ionic pollution, measured as
conductivity and sulfates, into the waters of West Virginia in violation of its WV/NPDES Permit
and its West Virginia Surface Mining Permit.1
Plaintiffs have moved for partial summary judgment in their favor on jurisdictional
issues. Pls.’ Mot. Part. Summ. J.; see also Pls.’ Mem. Supp. Mot. Part. Summ. J., ECF No. 56.
Specifically, Plaintiffs assert that they have standing as a matter of law through their members
James Tawney and Cindy Rank. Defendant filed a Response in opposition, ECF No. 61, and
Plaintiffs filed a Reply, ECF No. 65. Additionally, Defendant has moved for summary judgment
on the grounds that 1) Plaintiffs have failed to establish standing, 2) Defendant is protected from
liability based on the CWA’s permit shield,2 3) treating West Virginia’s water quality standards
1
The Complaint also alleges that Defendant violated these statutes by discharging excessive
amounts of selenium into the waters of West Virginia. However, the parties subsequently filed a
joint motion to dismiss the claims relating to selenium, ECF No. 72, which this Court granted,
ECF No. 75. Therefore, Plaintiffs’ selenium claims need not be discussed.
2
Under the permit shield defense, a permit holder cannot be held liable for CWA violations if
the permit holder is in compliance with the terms of its permit. See 33 U.S.C. § 1342(k).
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as effluent limits in the manner Plaintiffs advocate is an impermissible permitting “shortcut,” 4)
Plaintiffs fail to sufficiently demonstrate any violation of West Virginia’s narrative water quality
standards in that they rely solely on West Virginia Stream Condition Index (“WVSCI”) scores,
and 5) Plaintiffs’ SMCRA claims are barred because their CWA claims are barred. Plaintiffs
filed a Response, ECF No. 64,3 and Defendant filed a Reply, ECF No. 66.
Defendant acknowledges that its second, third, and fourth arguments were raised by
defendants Elk Run Coal Company, Inc., and Alex Energy, Inc., and rejected by this Court in
OVEC v. Elk Run Coal Company, Inc., et al., No. 3:12-cv-00785, 2014 WL 2526569 (June 4,
2014). Therefore, there is no need for the Court to discuss those previously rejected arguments in
this Memorandum Opinion and Order. Additionally, because the Court finds that Plaintiffs’
CWA claims are not barred for the reasons explained below, it is unnecessary to address
Defendant’s fifth argument.
Both Motions are ripe for resolution. In Section II, the Court discusses the legal standard
applicable to motions for summary judgment. In Section III, the Court examines the parties’
arguments concerning standing. In Section IV, the Court briefly explores Plaintiffs’ notice of
intent to sue.
II.
Legal Standard for Summary Judgment
To obtain summary judgment, the moving party must show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the
evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
3
The day after filing their Response, ECF No. 63, Plaintiffs filed a “corrected” Response, ECF
No. 64, which made a minor edit to the previously filed version. The Court will consider the
“corrected” Response instead of the initial filing.
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249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in
the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most
favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S.
at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on
an essential element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). The nonmoving party must satisfy this burden of proof by offering more than a mere
“scintilla of evidence” in support of his position. Anderson, 477 U.S. at 252.
“‘[W]here the moving party has the burden—the plaintiff on a claim for relief or the
defendant on an affirmative defense—his showing must be sufficient for the court to hold that no
reasonable trier of fact could find other than for the moving party.’” Proctor v. Prince George’s
Hosp. Ctr., 32 F. Supp. 2d 820, 822 (D. Md. 1998) (quoting Calderone v. United States, 799
F.2d 254, 259 (6th Cir. 1986)). “Thus, if the movant bears the burden of proof on an issue, . . . he
must establish beyond peradventure all of the essential elements of the claim or defense to
warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).
Having discussed the standard for review of motions for summary judgment, the Court now turns
to the parties’ arguments concerning standing.
III.
Plaintiffs’ Standing
A. Legal Standard for Standing
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In order to bring any action in federal court, a plaintiff must have standing—that is, a
plaintiff must have a sufficient personal stake in the outcome of the matter being litigated to
make it justiciable under Article III of the Constitution. See Friends of the Earth, Inc. v. Gaston
Copper Recycling Corp. (“Gaston Copper I”), 204 F.3d 149, 153 (4th Cir. 2000); see also U.S.
Const. art. III (restricting federal courts to adjudicating “cases” and “controversies”). In order to
satisfy the minimum constitutional requirements for standing, an individual plaintiff must
demonstrate:
(1) [he] has suffered an “injury in fact” that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it is likely, as opposed
to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). In environmental cases, “a
plaintiff need only show that he used the affected area, and that he is an individual ‘for whom the
aesthetic and recreational values of the area [are] lessened’ by the defendant’s activity.” Piney
Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., MD, 268 F.3d 255, 263 (4th Cir. 2001)
(quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). Furthermore, “[t]he relevant showing
for purposes of Article III standing . . . is not injury to the environment but injury to the
plaintiff.” Laidlaw, 528 U.S. at 181.
As this Court explained in OVEC v. Maple Coal Company, a court is not required to
determine the merits of the environmental violations alleged when deciding if standing exists.
808 F. Supp. 2d 868, 882 (S.D. W. Va. 2011) (citing Laidlaw, 528 U.S. at 181). “What
[standing] does require is a demonstration that if the allegations of Clean Water Act violations
are true, the impacts of the alleged violations are felt in an area with which the plaintiffs have ‘a
direct nexus.’” Id. (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.
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(“Gaston Copper II”), 629 F.3d 387, 395 (4th Cir. 2011)). Plaintiffs “may rely on circumstantial
evidence such as proximity to polluting sources, predictions of discharge influence, and past
pollution to prove both injury in fact and traceability.” Gaston Copper I, 204 F.3d at 163. To
require more would contravene the otherwise “straightforward Clean Water Act issue of whether
[the defendant] has violated its permit limitations,” thereby “throw[ing] federal legislative efforts
to control water pollution into a time warp by judicially reinstating the previous statutory regime
in the form of escalated standing requirements.” Id. at 163-64.
When the plaintiff in question is an organization, that organization “has standing to sue
on behalf of its members when ‘(a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c)
neither the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.’” Am. Canoe Ass’n, Inc. v. Murphy Farms, Inc., 326 F.3d 505, 517 (4th
Cir. 2003) (quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)).
B. Application
1. Injury in Fact
Plaintiffs assert standing through Cindy Rank and James Tawney. See James Tawney
Decl., ECF No. 55-2; Cindy Rank Decl., ECF No. 55-3; James Tawney Dep., ECF No. 57-9;
Cindy Rank Dep., ECF No. 57-12. Cindy Rank is a member of all three plaintiff organizations.
Rank Decl. ¶¶ 1, 5, 7. She first visited Twentymile Creek around 1994 as part of a statesponsored interagency mine tour, and in 1997 she compiled a map of surface mining permitting
in the area. Id. ¶¶ 11, 12. In July 2010 Ms. Rank visited the creek as part of a citizen inspection,
and in September 2010 she visiting again with James Tawney to become more familiar with the
area. Id. ¶¶ 16, 17. During the latter visit, Ms. Rank “enjoyed the sights and sounds of the stream
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but was very concerned about the damage to aquatic life from pollution coming from the mines
upstream, including Fola’s Surface Mine No. 3.” Id. ¶ 19. She stops and visits the creek when
driving through the area for meetings, enjoying views of the wildlife and the water, and she
“would be upset if the number and variety of birds, wildlife, fish or insects have been or will be
reduced as a result of mining activities upstream.” Id. ¶¶ 20-22. Ms. Rank has visited the creek
fairly consistently over the past few years, including visits in 2013. See Rank Dep. 22-27
(discussing her two visits to Twentymile Creek in August 2013 to view the scenery and stating
that she has visited once or twice a year for the past five years).
Ms. Rank asserts that she “see[s] red when [she] think[s] about the harm that is being
done to the environment and to communities downstream,” Rank Decl. ¶ 13, and that her
“enjoyment of Twentymile Creek would greatly improve if mining companies[,] including
Fola[,] were forced to clean up the pollution and comply with their permits,” id. ¶ 14. See also
Rank Dep. 42 (noting that she wishes conductivity and sulfate levels would improve). Ms. Rank
also explains her knowledge of studies showing the negative effects of ionic stress in
Twentymile Creek. Id. at 40-41. She notes that she has not personally witnessed any degradation
or damage within the areas at issue in this case caused by mining, other than road work. Id. at 3638. However, she “understand[s] that upstream mining and the discharge of pollutants such as
. . . conductivity has diminished stream life and harmed the ecosystem of Twentymile.” Rank
Decl. ¶ 22. Ms. Rank’s knowledge of the degradation caused by mining “puts a damper on [her]
visits in many ways.” Rank Dep. 36; see also id. at 39 (“[K]nowing that streams are covered and
knowing what is on the paper in terms of the permits, I know that there is damage being done
from some of the discharges, and that upsets me.”). Lastly, she asserts that she will visit
Twentymile Creek in the future. Rank Decl. ¶ 26.
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James Tawney is also a member of all three plaintiff organizations. Tawney Decl. ¶¶ 2, 45. Mr. Tawney first visited Twentymile Creek as a child, swimming and fishing in the area, and
made up to fifty visits by the time he was around twenty years old. Id. ¶¶ 9-10. Thereafter, he
visited once or twice a year to hike, hunt, and gather ginseng. Id. ¶ 12. He would see fewer fish
as time went by and noticed that deep fishing holes were becoming filled with sediment; he also
stopped eating any fish he caught because he was afraid to eat them due to pollution. Id. ¶¶ 14,
15. He believes that mining pollution—including conductivity—is hurting the fish population.
Id. ¶ 20. He says that he “would enjoy the creek more if [he] knew the mines were not polluting
the stream” and would also visit more frequently. Id. ¶ 15. He is afraid to swim in the creek
because of pollution. Id. ¶ 22. He has visited Twentymile Creek more than once a year for the
past several years. Id. ¶ 16. For example, he visited Blue Hole—located approximately a few
miles downstream from Stillhouse Branch’s confluence with Twentymile Creek—last year to go
fishing. Tawney Dep. 43-45. He intends to visit Twentymile Creek “many times in the future.”
Tawney Decl. ¶ 28; see also Tawney Dep. 50.
Mr. Tawney acknowledges that he has not seen any personal evidence of harm caused by
conductivity in the area but that he bases his belief that damage is occurring on scientific
evidence. Tawney Dep. 48-49. For example, he states that the WVDEP classified Twentymile
Creek and Stillhouse Branch as biologically impaired. Tawney Decl. ¶ 19; see also Tawney Dep.
31 (noting that high conductivity, which he believes is caused by mining, is one parameter that
concerns him), 39-41 (noting his concern and belief that high levels of sulfate and conductivity
can kill insects and fish), 59 (stating that he believes Stillhouse Branch is listed as an impaired
stream based on its ionic content and that Twentymile also is impaired), 60-61 (noting his
concerns about the effects of conductivity on insects and the larger “chain of life”).
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Defendant points out that neither Ms. Rank nor Mr. Tawney can describe any evidence of
degradation that they have personally observed regarding the pollutants at issue in this case,
which, Defendant argues, makes these declarants unable to show an injury to themselves as is
required for standing. The Court acknowledges that in many other cases the declarants involved
could see the harmful effects of the activities for which they sought redress. See, e.g., Am. Soc’y
for Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 317 F.3d 334,
337 (D.C. Cir. 2003) (finding that the declarant showed an injury in fact concerning the circus’s
treatment of elephants where he could attend that circus and “observe either direct physical
manifestations of the alleged mistreatment of the elephants . . . or detect negative effects on the
animals’ behavior”); Piney Run, 268 F.3d at 263 (finding that the declarant showed an injury in
fact where the increase in green algae in a stream interfered with her use and enjoyment of the
stream by making rocks slippery and reducing the water’s clarity); Animal Lovers Volunteer
Ass’n Inc., (A.L.V.A.) v. Weinberger, 765 F.2d 937, 938-39 (9th Cir. 1985) (for injury in fact to
occur, there must be a “direct sensory impact” upon the declarants (citation omitted) (internal
quotation marks omitted)). However, Plaintiffs have sufficiently alleged standing here even
without direct sensory observations by Ms. Rank and Mr. Tawney.
Although it is true that Ms. Rank and Mr. Tawney have not personally observed any
obvious injury to the physical environment, they have nonetheless sufficiently alleged an injury
based on their frequent use of the affected area and their beliefs—based on scientific evidence
and information from individuals they trust—that high conductivity and sulfate levels are
causing harm to that area. Even though they may not be able to see this alleged harm, this does
not mean that harm is not occurring, and the Court believes that their interactions with the
environment while having this knowledge about the effects of mining are sufficient to allege
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injury in fact. That the alleged pollution has not reached the point where its impact could be
readily observed does not preclude declarants from experiencing an injury at this point.
Defendant also argues that the concerns raised by Mr. Tawney—such as the fish being
toxic or the water being unsafe for swimming—are unrelated to the actual effects of high levels
of ionic salts, as reflected by high conductivity and sulfate levels. However, both Ms. Rank and
Mr. Tawney have demonstrated a long-standing persistent interest in the possible harm that high
conductivity and sulfate levels can have on the area affected by Defendant’s discharges. They
have demonstrated concern about the effects of high conductivity and sulfate levels and have
gained information about the possible effects of pollutants on the affected area. The fact that
some of their concerns may be unrelated to high conductivity and sulfate levels does not
eliminate their claims of injury arising from such levels. Defendant also argues that Ms. Rank
has been unable to identify specific ways in which mining has diminished the enjoyment of her
trips. The Court disagrees with the Defendant’s characterization and finds that Ms. Rank and Mr.
Tawney have alleged specific ways in which Defendant’s mining—and the resulting levels of
conductivity and sulfates specifically—harm their enjoyment of the affected area. Additionally,
based on their history of connection and visits to the area, the Court finds that Ms. Rank and Mr.
Tawney have sufficiently alleged their intent to visit in the future.
Defendant points to several supposed weaknesses in Mr. Tawney’s declaration and
testimony. For example, Defendant seems to fault Mr. Tawney for not having visited the area
near Stillhouse Branch other than an October 2010 visit and a second visit with an expert
witness. However, Stillhouse Branch is not the exclusively affected area in this case; rather,
Twentymile Creek, to some point downstream of its confluence with Stillhouse Branch—
certainly within the area visited by the declarants—is an affected area as well. Defendant also
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makes much of the point that while Mr. Tawney’s declaration states that he traveled up the
public road along Twentymile Creek many times in 2013, in his deposition he said that he only
did so once. Defendant also suggests that Mr. Tawney misspoke in another case about his future
intentions to visit a certain affected area. The Court does not believe that Mr. Tawney has misled
the Court or that the nature of his testimony is such that it should be discounted. Even setting
aside his alleged misstatement concerning recent drives along the creek, Mr. Tawney clearly
made at least one visit to the affected area in 2013 for recreational purposes, namely, fishing at
Blue Hole. He has therefore sufficiently demonstrated a direct nexus to the affected area.
In summary, Ms. Rank and Mr. Tawney have demonstrated a concrete and actual harm to
their aesthetic and recreational interests as a result of ionic pollution in Twentymile Creek.
2. Traceability
Plaintiffs’ injuries are fairly traceable to Defendant’s discharges of ionic pollution in
alleged violation of its WV/NPDES Permit because the declarants claim that their injuries
resulted from elevated pollution in the same waterway into which Defendant discharges
pollutants. OVEC v. Marfork Coal Co., Inc., No. 5:12-cv-1464, 2013 WL 4509601, at *5 (S.D.
W. Va. Aug. 23, 2013). Defendant does not argue that the areas used by Plaintiffs’ declarants in
Twentymile Creek are not affected by its mining and discharges. Therefore, traceability has been
shown.
3. Redressability
The Court finds that Plaintiffs also satisfy the final standing element, redressability.
Plaintiffs seek injunctive relief requiring Defendant to reduce its discharge of ionic pollution to
comply with the terms of its permit. This relief would provide redress for Plaintiffs’ injuries by
reducing the amount of ionic pollution in Stillhouse Branch and Twentymile Creek.
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4. Organizational Standing
The Court finds that Plaintiffs have constitutional standing. Declarants are members of all
of the plaintiff organizations. They have demonstrated: (1) injuries in fact which are (2) fairly
traceable to Defendant’s alleged violations and which (3) are able to be redressed by a favorable
decision in this case. These two declarants support Plaintiffs’ organizational standing because,
A) as individual members, they would have standing to sue in their own right, B) the interests
Plaintiffs seek to protect are germane to Plaintiffs’ overall purpose to conserve and preserve the
environment and natural resources, and C) neither the claims asserted nor the relief requested
requires the participation of individual members.
IV.
Sixty Days’ Notice
Under the CWA and the SMCRA, no citizen suit may be commenced prior to the
provision of sixty days’ notice to the alleged violator, the Administrator of the EPA (for CWA
citizen suits) or the Secretary of the Department of the Interior (for SMCRA citizen suits), and
the state in which the alleged violation occurs. 30 U.S.C. § 1270(b)(1)(A); 33 U.S.C. §
1365(b)(1)(A). On December 7, 2012, Plaintiffs sent a letter to the appropriate recipients which
appears to provide the necessary details for valid notice of suit. See Notice Intent, ECF No. 55-4.
This lawsuit was commenced over sixty days later, on March 13, 2013. Plaintiffs specifically
address the sufficiency of their Notice of Intent to Sue in their Memorandum in Support of their
Motion for Partial Summary Judgment. Defendant does not challenge the sufficiency of the
Notice in its Response or in its pleadings regarding its own Motion for Summary Judgment.
However, in the Proposed Integrated Pretrial Order, Defendant argues for the first time that the
Notice of Intent “failed to identify sufficiently the pollutants that Plaintiffs contend are violating
an effluent standard or limitation,” without further elaboration. ECF No. 79 at 10. The Court is
14
not inclined to now consider Defendant’s argument on this point given that it failed to respond to
this issue earlier. However, even were this argument considered on the merits, the Court would
find that the Notice is sufficient in that it properly puts Defendant on notice of Plaintiffs’
concerns about conductivity and sulfate levels caused by discharges from Outfall 029. Plaintiffs’
Notice of Intent to Sue meets applicable statutory requirements.
V.
Conclusion
For the reasons explained above, Plaintiffs’ Motion for Partial Summary Judgment on
Jurisdictional Issues is GRANTED and Defendant’s Motion for Summary Judgment is
DENIED. Specifically, the Court GRANTS summary judgment in favor of Plaintiffs on the
issue of jurisdiction.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to
counsel of record and any unrepresented parties.
ENTER:
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July 30, 2014
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