United States of America v. Alpha Natural Resources, Inc. et al

Filing 10

MEMORANDUM OPINION AND ORDER granting the United States' 4 MOTION to enter the proposed consent decree and its addendum; the proposed consent decree and addendum are entered this same date; and this action is dismissed and stricken fro m the docket, with the court retaining jurisdiction pursuant to Article XVIII of the consent decree and any other provision therein contemplating the potential for future action by the court. Signed by Judge John T. Copenhaver, Jr. on 11/26/2014. (cc: attys; any unrepresented parties) (taq)

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

Civil Action No. 2:14-11609

ALPHA NATURAL RESOURCES, INC. and
ALPHA APPALACHIA HOLDINGS, INC.
ALEX ENERGY, INC. and ALPHA PA COAL TERMINAL, LLC
AMFIRE MINING COMPANY, LLC and ARACOMA COAL CO., INC. and
BANDMILL COAL CORP. and BELFRY COAL CORP. and
BIG BEAR MINING CO. and BROOKS RUN MINING COMPANY, LLC and
BROOKS RUN SOUTH MINING LLC and CLEAR FORK COAL CO.
CUMBERLAND COAL RESOURCES, LP, and DELBARTON MINING CO. and
DICKENSON-RUSSELL COAL COMPANY, LLC and DUCHESS COAL CO. and
EAGLE ENERGY, INC. and ELK RUN COAL CO., INC. and
EMERALD COAL RESOURCES, LP and ENTERPRISE MINING COMPANY, LLC
and GOALS COAL CO. and GREYEAGLE COAL CO. and
HARLAN RECLAMATION SERVICES LLC and
HERNDON PROCESSING CO., LLC and HIGHLAND MINING CO. and
INDEPENDENCE COAL COMPANY, INC. and JACKS BRANCH COAL CO. and
KANAWHA ENERGY CO. and KEPLER PROCESSING CO., LLC and
KINGSTON MINING, INC. and KINGWOOD MINING CO., LLC and
KNOX CREEK COAL CORP. and LITWAR PROCESSING CO., LLC and
MARFORK COAL CO. and MARTIN COUNTY COAL CORP. and
NEW RIDGE MINING CO. and OMAR MINING CO. and
PARAMONT COAL COMPANY VIRGINIA, LLC and
PAYNTER BRANCH MINING, INC. and PEERLESS EAGLE COAL CO. and
PERFORMANCE COAL CO. and PETER CAVE MINING and
PIGEON CREEK PROCESSING CORP. and PIONEER FUEL CORP. and
POWER MOUNTAIN COAL CO. and PREMIUM ENERGY, LLC and
RAWL SALES & PROCESSING CO. and RESOURCE DEVELOPMENT, LLC and
RESOURCE LAND CO. and RIVERSIDE ENERGY CO., LLC and
ROAD FORK DEVELOPMENT CO. and ROCKSPRING DEVELOPMENT, INC. and
RUM CREEK COAL SALES, INC. and SIDNEY COAL CO. and
SPARTAN MINING CO. and STIRRAT COAL CO. and

SYCAMORE FUELS INC. and TENNESSEE CONSOLIDATED COAL COMPANY and
TRACE CREEK COAL CO. and TWIN STAR MINING, INC.,
Defendants
MEMORANDUM OPINION AND ORDER
Pending is the United States= motion to enter the
proposed consent decree and its addendum, filed June 13, 2014.

I.

A.

Procedural Background

Defendants’ coal mining operations are subject to
National Pollutant Discharge Elimination System (“NPDES”)
permits inasmuch as they discharge water at multiple points
throughout their mining operations.

These discharges emanate

from various impoundments and settlement ponds, outlets,
ditches, and other conveyances that qualify as “point sources”
emitting “pollutants” as those two terms are defined under
federal law for Clean Water Act (“CWA”) purposes.
The NPDES permits at issue here contain effluent
limits for multiple pollutants, including aluminum, iron,
manganese, osmotic pressure, pH, selenium, and total suspended
2

solids.

The limits are drawn from technology-based standards

set by EPA and water quality-based standards set by the state of
West Virginia.
Alpha Appalachia Holdings, Inc., previously Massey
Energy Company (“Massey”), and its subsidiaries, have at times
failed to comply with the CWA.

On May 10, 2007, the United

States sued Massey and its subsidiaries for discharges of
pollutants into waters of the United States in violation of
Section 301 of the CWA and violations of the conditions and
limitations of certain NPDES permits.

The claims against Massey

and its subsidiaries included over 5,100 NPDES permit violations
and over 250 additional violations of NPDES permit conditions or
unpermitted water discharge-related violations.
On April 9, 2008, the court approved and entered a
consent decree (“Massey CD”) resolving the claims alleged in the
May 10, 2007, complaint.

The Massey CD was designed to address

a long history of NPDES permit limit violations at Massey coal
mining operations.

It imposed a series of auditing, data

management, and violation response requirements.

Massey

operations, however, continued to accrue numerous violations of
NPDES permit limits.

The EPA undertook an investigation of

Massey’s failure to comply.

Over a period of three years, EPA

3

gathered and analyzed data from Massey and state regulators,
inspected numerous Massey facilities, and met repeatedly with
Massey senior corporate officials regarding its compliance
record.
The investigation resulted in EPA issuing Massey
notices of noncompliance for violations of paragraphs 43
(quarterly reports), 27(d) (violation response), and 39 (stream
restoration) of the Massey CD.

EPA additionally determined that

measures beyond those required by the Massey CD would be
necessary to ensure compliance.

On May 31, 2011, the United

States Department of Justice notified Massey that EPA had
referred claims for CWA violations against the company for
potential legal action.

Massey was invited to engage in pre-

filing negotiations.
Also following entry of the Massey CD, several of its
subsidiaries were subject to additional enforcement efforts for
continuing pollutant discharges in violation of their NPDES
permits.

In April 2010, citizen groups instituted an action

against five of Massey’s subsidiaries for violations of effluent
limitations based on its self-reported Discharge Monitoring
Reports (“DMRs”). See Ohio Valley Environmental Coalition,
(“OVEC”) v. Elk Run Coal Company, 2:10-cv-00673 (S.D. W. Va.

4

Apr. 27, 2010).

On August 8, 2011, the court entered a consent

decree addressing the claims.

In June 2010, the same citizen

groups instituted another civil action against two of Massey’s
subsidiaries for violations of selenium limits based on the
subsidiaries’ self-reported DMRs. See OVEC v. Independence Coal
Company, Inc. and Jacks Branch Coal Company, 3:10-cv-0836 (S.D.
W. Va. Jun. 17, 2010).

On January 24, 2012, the court entered a

consent decree addressing the claims.

The subsidiaries,

however, have continued to discharge pollutants in violation of
their NPDES.

On June 1, 2011, Alpha Natural Resources, Inc.
(“Alpha”) acquired Massey.

Alpha began negotiations with the

United States shortly thereafter on the CWA claims against the
former Massey operations.

EPA had already begun separate

investigations into Alpha’s own CWA compliance history by that
point.

The negotiations thus broadened to cover both entities

and their respective subsidiaries.

Ultimately, West Virginia,

Pennsylvania, and Kentucky joined in the discussions as well.
Over the ensuing two and a half years, exhaustive
negotiations occurred, with plaintiffs all the while continuing
their investigations of the CWA noncompliance at Alpha.

These

included additional site inspections, two separate requests for
5

information under Section 308 of the CWA, analysis of available
state permitting and enforcement data, and resort to the
scientific and technical resources independently available to
the federal and state sovereigns.

Both sides hired consultants,

were represented by experienced counsel, met multiple times,
exchanged dozens of draft consent decrees, thousands of emails
and letters, and innumerable phone calls.
During this same time period of investigation and
negotiation, the United States engaged citizen groups.

The

United States had multiple conversations with Appalachian
Mountain Advocates regarding continuing CWA violations at the
prior Massey operations.

The United States received multiple

notices of intent to sue (“NOIs”) from citizen groups for claims
overlapping those that were part of the negotiations between the
enforcement agencies and the defendants.

The United States

provided the citizen groups with notice of its negotiations in
advance of any citizens’ complaint.

The citizen groups were

also offered opportunities to provide input concerning the
injunctive relief portions of the proposed consent decree. In
each instance, the citizen groups chose to institute actions.
It is noteworthy, however, that two of the citizen
suits with claims overlapping some of the claims here made were

6

voluntarily dismissed with prejudice after lodging of the
proposed consent decree discussed infra.

See OVEC v. Alex

Energy, Inc., 2:12-03412 (S.D. W. Va. May 23, 2014); OVEC v.
Marfork Coal Company, Inc., 5:12-cv-01464 (S.D. W. Va. May 23,
2014).

Another case is presently stayed pending the disposition

of this matter.

See Citizens Coal Council v. Emerald Coal

Resources, LP, 2:13-00003 (W.D. Pa. Jun 10, 2014).

B.

The Instant Enforcement Action

The United States, on behalf of the EPA, the West
Virginia Department of Environmental Protection, the
Pennsylvania Department of Environmental Protection (“PADEP”),
and the Commonwealth of Kentucky (collectively, “plaintiffs”),
instituted this action pursuant to section 309(b) and (d) of the
CWA, 33 U.S.C. §§ 1319(b) and (d), section 22 of the West
Virginia Water Pollution Control Act (“WPCA”), West Virginia
Code section 22-11-22, sections 601 and 605 of the Pennsylvania
Clean Streams Law (“PCSL”), 35 Pennsylvania Statutes sections
691.601 and 691.605, and Kentucky Revised Statutes Chapter 224,
Kentucky Revised Statutes section 224.99.

7

Based on self-reported information from the
defendants, the complaint alleges over 6,200 violations of
applicable effluent limits at defendants’ coal mining operations
over the past six years, as well as unpermitted discharges from
two outfalls associated with the Cumberland Mine in
Pennsylvania.

Plaintiffs thus allege that the defendants have

violated Section 301 of the CWA, 33 U.S.C. § 1311, West Virginia
Code § 22-11-8, 35 Pennsylvania Statutes sections 691.301,
691.307, 691.315, and Kentucky Revised Statutes section 224.70110.

The United States and the PADEP also allege that Alpha and

Cumberland Coal Resources, LP, have violated 33 U.S.C. § 1311
and 35 Pennsylvania Statutes sections 691.301, 691.307, and
691.315 by discharging pollutants into waters of the United
States and the Commonwealth without an NPDES permit.
Plaintiffs seek permanent injunctive relief and civil
penalties against defendants to address the unlawful discharges.
The court is vested with subject matter jurisdiction under
section 309(b) of the CWA, 33 U.S.C. § 1319(b), and 28 U.S.C. §§
1331, 1345, 1355, and 1367.

On September 10, 2014, the court entered an order
requesting further information on multiple matters found in the
proposed consent decree.

The parties have filed their joint
8

position statement on those matters, which are reflected in the
table below:
Citation
Page 6,
Para. 9

Matter Raised
Please provide an
explanation respecting why
Sections VIII and IX are
the only two Sections
specifically mentioned as
continuing obligations in
the event of a transfer of
ownership. Why is a
transferee not required to
(1) Expressly assume
(2) All of the obligations
of the Consent Decree
applicable to the
transferor. Further,
please specify the nature
of the referenced “related
obligations” mentioned in
the paragraph.

9

Joint Response
The matter was the
subject of intensive
negotiations. Selenium
and osmotic pressure
violations are more
difficult to address
than conventional
violations. The
transferee need not
assume the obligations
to implement sections
VIII and IX inasmuch as
those obligations will
remain binding on
defendants regardless of
transfer. Transferees
would remain subject to
NPDES permitting
constraints and other
CWA requirements,
including applicable
penalties and injunctive
relief. These and other
factors resulted in the
compromise struck in
Paragraphs 9 and 10,
which was integral to
reaching settlement as a
whole. The referenced
“related obligations”
include a number of
provisions outside of
sections VIII and IX.
Some specifically
reference the selenium
and osmotic pressure
requirements and others
do not. Examples are
offered by the parties
for each.

Page 63,
Para. 108

The matter of authorized
persons should be
addressed here, along with
a requirement that the
waiver be in writing and
otherwise in compliance
with any applicable public
notice and other
procedural requirements.

Page 65,
Para. 115

Please advise if either
Tennessee or Virginia need
to be considered in the
percentage breakdown?

Page 70,
Para. 131

Why, if the Dispute
Resolution procedures are
“the exclusive mechanism
to resolve disputes
arising under or with
respect to” the Consent
Decree, there is mention
later of the potential for
an enforcement “action” by
the United States or the
state sovereigns.
Additionally, please
explain whether the states
are authorized to pursue
independent enforcement
actions under the Consent
Decree without joinder of
the United States.

10

The parties have agreed
to add the following
provision: “Any
Plaintiff may, in the
unreviewable exercise of
its discretion, reduce
or waive stipulated
penalties otherwise due
to that Plaintiff under
this Consent Decree. The
reduction or waiver of
stipulated penalties
shall be made in writing
by an authorized person
on behalf of that
Plaintiff.”
Tennessee and Virginia
both declined
participation in this
enforcement proceeding.
They are thus not
included in Paragraph
115 as recipient of
stipulated penalties
relating to enforcement
of Consent Decree
obligations.
Plaintiffs may move to
enforce the Consent
Decree if the defendants
are unresponsive or
otherwise fail to
initiate Dispute
Resolution. Any
plaintiff is authorized
to pursue an independent
action to enforce the
Consent Decree, though
it is anticipated that
they would first
coordinate with their
fellow sovereigns.

Page 71,
Para. 132

Page 71,
Para. 134

Page 72,
Para.
137a

Page 77,
Para. 153

Please explain whether, at
line three, the phrase
“the States” should
instead read “the affected
States.” This same
alteration should be
considered where necessary
under Paragraph 133.
Please explain whether
provision should be made
for an affected state to
serve a Statement of
Position?

The parties agree to the
proposed modification.

The plaintiffs have
agreed that the United
States, following
consultation, takes the
lead in the Dispute
Resolution process. The
state sovereigns thus
agree that it is
unnecessary for them to
serve their own
Statement(s) of
Position.
This paragraph covers
The parties have
dispute resolution
considered whether the
relating, inter alia, to
language could be made
the “adequacy of the
more precise. They were
performance of work
unable to identify any
undertaken pursuant to”
changes that would
the Consent Decree. That
preserve the
phrase should be drafted
intentionally broad
with more precision. It
coverage of the original
is a bit vague in its
phrase without
present form.
potentially carving out
unforeseen categories of
dispute that should
otherwise be afforded
record review. They
note “a number of
courts” have used the
language in other
consent decrees without
development of
significant issues
relating thereto.
“[D]ue but not paid by
The parties agree to the
Defendants” should instead proposed modification.
read “due hereunder but
not paid by Defendants.”
11

Page 81,
Para. 161

The word “consistent”
The parties agree to the
found in line five of this proposed modification.
paragraph seems
unnecessary. The parties
should consider omitting
it.

The parties have submitted a proposed order
encompassing the agreed upon modifications noted above.

They

additionally contend that the changes do not substantively alter
any of the proposed injunctive relief and that no additional
public notice or comment period is necessary.

C.

The court agrees.

The Proposed Consent Decree

On March 5, 2014, the United States lodged a proposed
consent decree covering the claims in this action.

The proposed

consent decree is the product of five years of investigation and
negotiations between the defendants and federal and state
regulators.

The proposed consent decree contains two principal

categories, namely, a civil penalty and injunctive relief.
The civil penalty is in the amount of $27.5 million.
It is the largest civil penalty ever assessed through either
settlement or litigation for NPDES permit violations.

It

exceeds the EPA’s calculated economic benefit, discussed more
fully infra.

It was arrived at after assessing a number of
12

factors, including economic benefit, the extent and
environmental impact of the alleged violations, penalties
assessed in similar settlements, and the plaintiffs’ assessment
of the litigation risk associated with their claims.

The sum

will be divided between the United States, West Virginia, and
Kentucky.

The cost of the injunctive relief is said by the

parties to be nearly $200 million.
The proposed injunctive relief consists of three main
components: (1) general injunctive relief, (2) selenium-related
injunctive relief, and (3) osmotic pressure injunctive relief.1
The general injunctive relief provisions include, among multiple
other components, an Environmental Management System (“EMS”).
An EMS is a systematic, planned, and documented strategy to aid
in the implementation of a top-down, prevention-focused approach
to CWA issues.

Alpha will be required to hire a third-party

consultant to develop and implement the EMS and then retain a
second consultant 11 months later to audit whether the EMS has
been properly implemented.
The selenium-related injunctive relief includes 11
specific compliance plans covering 28 outfalls currently not in

1

Osmotic pressure estimates the effect of dissolved
constituents in the water, such as salts, on aquatic life.
13

compliance with selenium limits.

The plans include water

management and treatment approaches, such as redirecting storm
water, diluting wastewater, and moving the point of discharge to
a water body with greater assimilative capacity.
The treatment systems required by the proposed consent
decree successfully treat selenium to below applicable limits.
Each plan has a specific deadline, the latest of which is
December 1, 2014. Five of the water management approaches have
already been successfully implemented, and design and permitting
requirements are ongoing for others.

The continued violation of

selenium limits will result in per diem and monthly violation
penalties in the respective amounts of $8,000 and $15,500.
The osmotic pressure injunctive relief requires
wastewater collection and treatment system that will ensure
compliance with both existing and future effluent limits.

There

are also specific deadlines for interim milestones and an
overall compliance deadline of September 30, 2016.

Defendants’

implementation efforts are well underway in order to meet the
applicable deadlines.
On March 11, 2014, the United States published a
Notice of Lodging of the Consent Decree in the Federal Register,
triggering a 30-day public comment period.
14

The applicable West

Virginia state public comment period concluded on May 12, 2014.
The parties have not disclosed any applicable comment period for
either Pennsylvania or Kentucky.

Interested members of the

general public were given over 60 days to comment on the
proposed consent decree.

During that time, the United States

and West Virginia received less than 10 non-duplicate comments.
Following the lodging, the Commonwealth of Virginia
sought to participate in information gathering and enforcement
efforts against Alpha’s mining facilities there.

The parties

have thus now submitted a proposed consent decree addendum that
requires defendants to (1) submit certain reports and
notifications to the Virginia Department of Mines, Minerals and
Energy that are already to be sent to plaintiffs, (2) permit
access to an audit and violations database to be maintained by
Alpha pursuant to the proposed consent decree, and (3) apportion
the stipulated penalties for effluent limit violations that
occur in Virginia between the United States and Virginia.

The

addendum does not affect, alter, or amend the injunctive relief
requirements of the proposed consent decree and no further
public notice and comment is required.

15

D.

The Comments Received

The United States is correct that the comments
received can be summarized under five headings as follows: (1)
whether the proposed consent decree can ensure compliance given
the continuing violations coming after the Massey CD, (2)
whether injunctive relief applicable to the Emerald Mine,
including osmotic pressure injunctive relief, is sufficient to
ensure compliance, (3) whether the civil penalty is appropriate
in amount, (4) whether defendants should be required to direct
part of the civil penalty money to stream restoration efforts,
and (5) whether the United States must take a legal position on
the impact of the proposed consent decree on future violations
and enforcement efforts.
The court has reviewed and considered all of the
comments.

Some constitute unhelpful general attacks on the

sufficiency of the proposed accord.

Others merit more scrutiny.

For example, the comments of Sarah Surber are directed primarily
toward the amount of the penalty and the apparent failure of the
Massey CD.
Regarding the penalty amount, the United States
applied the Interim Clean Water Act Settlement Penalty Policy
16

(CWA Penalty Policy), which is publicly available on the
Internet.

The CWA Penalty Policy contains a methodology for

calculating penalties under these circumstances.

In his

declaration accompanying the United States’ materials, Chad
Harsh, a Lead Environmental Scientist in EPA Region 3, discusses
at length how he arrived at the penalty figure, which focuses on
the calculation of economic benefit gained by the violator in
its compliance failures and the gravity of the violations.

Mr.

Harsh’s extended explanation of his process for arriving at the
amount is reasoned and supported.

One factor influencing the

strength of the penalty is defendants’ response to it during
negotiations, as set forth in Mr. Harsh’s declaration:
Alpha vigorously contested EPA’s economic benefit
calculations during negotiations. Alpha hired a third
party consultant that disagreed with the methodology
used by EPA and Industrial Economics, and argued that
economic benefit was significantly lower than
EPA’s calculation. EPA did not agree with Alpha’s
expert, and ultimately the civil penalty in the
CD recovered all of EPA’s calculated economic benefit.
(Harsh Decl. at 27).

The court is satisfied that the historic

penalty amount withstands scrutiny.
Ms. Surber’s concerns respecting the apparent failure
of the Massey CD are of greater significance.

The following

excerpt crystallizes the concern:
Th[e proposed consent decree] does nothing to address
the problems of the previous Consent Decree with
17

Massey -— there are no assurances that the EPA, DOJ,
or the states will enforce future violations. As my
article in Environmental Justice (attached) addressed,
the DOJ did not monitor violations after the Consent
Decree was signed. It did not make public the
information that Massey/Alpha continued to
increasingly violate the CWA after the Consent Decree.
It kept information in a scattered, unorganized manner
that took months to produce after my FOIA request.
Massey/Alpha paid very little for later violations in
non-negotiable stipulated penalties even though it
continued to violate. Massey was supposed to implement
an electronic monitoring program, but there is no
evidence that this program improved water quality. In
fact, this lack of attention allowed Massey/Alpha to
continue to violate and violate more often! This
Consent Decree requires a similar electronic
monitoring that did not work in the prior Consent
Decree. It does not place any duty on the states, DOJ,
or EPA to stop and penalize illegal pollution easily
recognized from the DMR data. Because this Consent
Decree fails to address problems of the past that led
to these current CWA violations, I object to the
Consent Decree.
(Objec. of Sarah Surber at 3).
The objection carries significant weight given the
history of violations coming after the Massey CD.

The United

States, however, notes, in part, as follows:
EPA expended significant effort and resources in
monitoring compliance with the Massey CD,
investigating noncompliance, and taking action to
compel compliance. The proposed CD, which is a product
of those efforts, is much different than the Massey CD
and based on lessons learned from implementation of
the Massey CD as well as implementation of the
successful Patriot and Arch CDs. . . . [T]he
injunctive relief requirements are significantly more
robust and quickly escalate to requiring third party
experts to identify remedies to return to compliance.
The CD requires Alpha to develop a compliance focused
18

EMS based on the same elements as in the Arch and
Patriot CDs, which have proven successful.
Initial treatment system audits will ensure that
proper treatment system[s] are in place and maintained
from the start. The stipulated penalties are increased
and apply to all effluent limit parameters. Required
internal and third party environmental audits will
ensure the EMS is implemented and producing the
intended results. Finally, the record keeping and
reporting wi[ll] make it easier for EPA and the states
to monitor compliance than previously experienced
under the Massey CD. This combination of more
stringent compliance measures and stipulated
penalties, increased internal accountability, greater
third party involvement, and additional measures to
facilitate state and federal compliance monitoring
provides a strong framework for Alpha to ensure
compliance with its NPDES permits.
(Decl. of Mr. Harsh at 34-35).

The response is sufficient to

allay the well-taken concerns expressed by the commentator.

The

court concludes likewise with respect to the balance of the
comments received.

The comments do not constitute an obstacle

to approval.

II.

Our court of appeals has observed that Aa consent
decree >has elements of both judgment and contract,= and is
subject to >judicial approval and oversight= generally not present
in other private settlements.@ Szaller v. American Nat. Red
Cross, 293 F.3d 148, 152 (4th Cir. 2002) (quoting Smyth v.
Rivero, 282 F.3d 268, 279-80 (4th Cir. 2002)); see also Local
19

No. 93, Int'l Assn. of Firefighters, AFL-CIO v. Cleveland, 478
U.S. 501, 519 (1986); United States v. ITT Continental Baking
Co., 420 U.S. 223, 237 n.10 (1975) (citation omitted); Alexander
v. Britt, 89 F.3d 194, 199 (4th Cir. 1996).
It has expanded upon this principle in Smyth,
observing that a court is expected, when presented with a
proposed consent decree, to scrutinize the accord and make
certain findings prior to entry:
Because it is entered as an order of the court, the
terms of a consent decree must also be examined by the
court. As Judge Rubin noted in United States v.
Miami,
Because the consent decree does not merely
validate a compromise but, by virtue of its
injunctive provisions, reaches into the
future and has continuing effect, its terms
require more careful scrutiny. Even when it
affects only the parties, the court should.
. . examine it carefully to ascertain not
only that it is a fair settlement but also
that it does not put the court's sanction on
and power behind a decree that violates
Constitution, statute, or jurisprudence.
664 F.2d at 441 (Rubin, J., concurring). In other
words, a court entering a consent decree must examine
its terms to ensure they are fair and not unlawful.
Smyth, 282 F.3d at 280.
The standards governing consideration of a proposed
consent decree are described further by United States v. North
20

Carolina, 180 F.3d 574, 581 (4th Cir. 1999):
In considering whether to enter a proposed consent
decree, a district court should [1] be guided by the
general principle that settlements are encouraged.
Nevertheless, a district court should not blindly
accept the terms of a proposed settlement. See Flinn
v. FMC Corp., 528 F.2d 1169, 1173 (4th Cir.1975).
Rather, before entering a consent decree the court
must satisfy itself that [2] the agreement Ais fair,
adequate, and reasonable@ and [3] Ais not illegal, a
product of collusion, or against the public interest.@
United States v. Colorado, 937 F.2d 505, 509 (10th
Cir. 1991). In considering the fairness and adequacy
of a proposed settlement, the court must assess the
strength of the plaintiff's case. See Flinn, 528 F.2d
at 1172-73. While this assessment does not require the
court to conduct Aa trial or a rehearsal of the trial,@
the court must take the necessary steps to ensure that
it is able to reach Aan informed, just and reasoned
decision.@ Id. (internal quotation marks omitted). In
particular, the Acourt 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.@ Carson v. American Brands,
Inc., 606 F.2d 420, 430 (4th Cir. 1979) (en banc)
(Winter, Circuit Judge, dissenting), adopted by Carson
v. American Brands, Inc., 654 F.2d 300, 301 (4th Cir.
1981) (en banc)(per curiam).
Id. at 581 (emphasis supplied).

III.

As noted in North Carolina, the court accepts the
general proposition that settlements are encouraged.

The

consideration is especially apropos in this action, which
21

appeared poised to consume a significant amount of time and
expense by the parties, including the public fisc, along with a
substantial redirection of judicial and governmental resources.
Regarding fairness, adequacy, and reasonableness,
there has been no formal discovery.

There has, however, been

approximately five years of investigation, study, and
negotiation.

No one challenges the following summary by the

United States:
As laid out [by a Lead Environmental Scientist at EPA
Region 3] . . . the Consent Decree was reached only
after several years of investigations and nearly three
additional years of negotiations. Plaintiffs’
negotiations were informed by certified responses
provided by Defendants in response to multiple
information requests under Section 308 of the CWA;
multiple technical meetings with and reports from the
Defendants and their experts; information provided by
enforcement programs within the [states of] West
Virginia, Kentucky, and Pennsylvania; input from
experienced scientists within the relevant government
agencies; input from expert consultants hired by the
United States; and multiple site visits and
inspections at facilities owned and operated by
Defendants. . . . Moreover, while not required to do
so, the United States gave interested citizen groups
an opportunity to provide input on injunctive relief
measures on multiple occasions before lodging, and
assessed the comments received in determining the
appropriateness of the proposed settlement.
In addition, negotiations were conducted by
qualified counsel for each party, and both sides
relied on technical staff and third-party experts in
developing their proposed settlement terms. Many
issues were vehemently contested, and over the years
of negotiations there were multiple in-person meetings
22

along with thousands of phone calls and emails,
resulting in the exchange of dozens of proposed
injunctive relief drafts.
(U.S. Memo. in Supp. at 14-15) (citations omitted).

As in

United States v. Patriot Coal Corp., No. 2:09-0099, 2009 WL
1210622 (S.D. W. Va. Apr. 30, 2009), Aplaintiffs seem to have
developed, without the need for extensive litigation, a
substantial case to support the relief requested in the
complaint.@

Id. at *5.

It is noteworthy as well that the proposed consent
decree is sponsored, in part, by the federal and state
environmental regulators in their respective spheres authorized
by Congress, the Legislature, and the Commonwealths with
enforcing various federal and state water quality laws.

As in

Patriot Coal,
The EPA and DEP are governmental agencies that employ
individuals specially trained and familiar with the
relevant scientific disciplines and governing law.
The decision to avoid what might well have been a
costly and time-consuming diversion of limited agency
resources appears to have been a reasonable one under
the circumstances.
Id.
Considering the applicable factors, the federal and
state sovereigns have negotiated a comprehensive approach to
alleviating a large-scale, long-term environmental degradation.
23

They have done so without the expense, delay, and misallocation
of litigation resources that might otherwise have occurred
during protracted, hard-fought, and complex litigation.
The court, accordingly, finds that the proposed
consent decree and addendum serve the public interest and are
fair, adequate, and reasonable and, further, that they are
neither illegal nor the product of collusion.

In view of these

findings, and inasmuch as no person has herein opposed entry of
the proposed consent decree and addendum, the court ORDERS as
follows:
1.

That the United States= unopposed motion to enter the
proposed consent decree and its addendum be, and it
hereby is, granted;

2.

That the proposed consent decree and addendum be, and
hereby are, entered this same date; and

3.

That this action be, and hereby is, dismissed and
stricken from the docket, with the court retaining
jurisdiction pursuant to Article XVIII of the consent
decree and any other provision therein contemplating
the potential for future action by the court.

24

The Clerk is requested to transmit this written
opinion and order to all counsel of record and to any
unrepresented parties.
DATED:

November 26, 2014

John T. Copenhaver, Jr.
United States District Judge

25