Ohio Valley Environmental Coalition, Inc. v. Maple Coal Company

Filing 114

MEMORANDUM OPINION AND ORDER directing that the Consent Decree be entered with the Court's approval on this date; with the entry of this decree, directing that this action is dismissed and stricken from the active docket, with the Court retaining jurisdiction over this case as set forth in Part XIV of the Consent Decree. Signed by Judge Robert C. Chambers on 6/26/2012. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

OHIO VALLEY ENVIRONMENTAL
COALITION, INC., WEST VIRGINIA
HIGHLANDS CONSERVANCY, INC.,
and SIERRA CLUB,
Plaintiffs,
v.

CIVIL ACTION NO. 3:11-0009

MAPLE COAL COMPANY,
Defendant.

MEMORANDUM OPINION AND ORDER
On May 7, 2012, the parties filed a Notice of Lodging of Proposed Consent Decree. On
June 13, 2012, the United States filed a notice indicating that it has no objection to the entry of the
proposed decree. The 45 day comment period required by 33 U.S.C. § 1365(c)(3) has now
expired, and the parties have requested that the Court enter the proposed decree if it is found to be
fair, reasonable, and in the public interest. Notice of Lodging of Proposed Consent Decree, ECF
No. 112.
I. Introduction
This case involves two Surface Mine Permits—S602089 and S304191— and WV/NPDES
Permit WV1009311, all issued to Maple Coal Company (“Maple”) by the West Virginia
Department of Environmental Protection (“WVDEP”) to regulate Maple’s Sycamore South
Surface Mine and Sycamore South Extension in Kanawha and Fayette Counties.
Plaintiffs are three environmental organizations: Ohio Valley Environmental Coalition,
Inc. (“OVEC”), West Virginia Highlands Conservancy, Inc., and the Sierra Club. OVEC is a

nonprofit organization incorporated in Ohio with its principal place of business in Huntington,
West Virginia. It has approximately 1,500 members and is dedicated to the improvement and
preservation of the environment. The West Virginia Highlands Conservancy is a West Virginia
nonprofit organization with approximately 2,000 members that works for the conservation and
wise management of West Virginia’s natural resources.

The Sierra Club is a nonprofit

organization incorporated in California with more than 600,000 members nationwide and
approximately 2,000 members residing in West Virginia. Among the Sierra Club’s diverse
interests are the exploration, enjoyment, and protection of surface waters in West Virginia.
On January 4, 2011, Plaintiffs instituted this action for declaratory and injunctive relief
based on the citizen suit provisions of the Clean Water Act (“CWA”), 33 U.S.C. § 1365, and the
Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. § 1270.

The First

Amended Complaint sets forth three distinct claims for relief against Maple. Specifically,
Plaintiffs allege that Maple violated the selenium limitation contained in permit WV1009311 on
380 separate occasions.
On May 7, 2012, the parties lodged a proposed consent decree with this Court. The
citizen suit provision of the Clean Water Act provides that:
No consent judgment shall be entered in an action in which the United States is not
a party prior to 45 days following the receipt of a copy of the proposed consent
judgment by the Attorney General and the Administrator.
33 U.S.C. § 1365(c)(3). Consistent with this provision, the parties served the United
States with a copy of the proposed consent decree, which was received by a citizen suit coordinator
for the Department of Justice on that same day. On June 13, 2012, the United States notified the
Court that it has reviewed and has no objection to the entry of the decree as it was proposed.
2

II. Legal Standards
The Fourth Circuit Court of Appeals has noted that “a 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. Am. Nat’l 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 No. 93, Int’l Assn.
of Firefighters, AFL-CIO v. Cleveland, 478 U.S. 501, 519 (1986); United States v. ITT Cont’l
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 on this principle in Smyth, observing that a district court is to scrutinize the
proposed decree and make 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, therefore, 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 [sic] 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 Fourth Circuit has further explained:
In considering whether to enter a proposed consent decree, a district court should
be guided by the general principle that settlements are encouraged. See Durrett v.
Housing Authority of City of Providence, 896 F.2d 600, 604 (1st Cir.1990).
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 the agreement “is
fair, adequate, and reasonable” and “is 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
3

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 “a trial or a
rehearsal of the trial,” the court must take the necessary steps to ensure that it is able
to reach “an informed, just and reasoned decision.” Id. (internal quotation marks
omitted). 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.” 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).
United States v. North Carolina, 180 F.3d 574, 581 (4th Cir. 1999).
III. Discussion
The Court accepts the proposition that settlements are generally encouraged. A trial in
this case would have consumed significant time and expense for the parties as well as a significant
amount of judicial resources. Next, the Court turns to the fairness, adequacy, and reasonableness
of the proposed decree. Compliance with the Consent Decree will require the Defendant to pay
$229,350.00 to the United States Treasury as a civil penalty for violations of the selenium
limitations in the CWA and SMCRA permits that are at issue in this case. In addition to the civil
penalty, the stipulated penalties described in Part VII of the Consent Decree will be made to the
West Virginia Land Trust and used to fund a Supplemental Environmental Project (“SEP”).
Appendix A to the Consent Decree describes the SEP in great detail, and provides that the
stipulated penalties will be used to restore riparian areas and preserve land within the Kanawha
River watershed, an area directly affected by the mining operations at issue in this litigation.
In addition, the Consent Decree requires Maple to propose a bioreactor selenium treatment
system and to identify one or more alternative technologies in the event that the preferred
technology ultimately fails to achieve compliance with permitted selenium levels, and requires

4

compliance on an aggressive schedule. In Part XI, Maple agrees to pay the plaintiffs’ costs and
attorneys’ fees leading up to the Consent Decree, which are agreed to be $103,030.00.
In short, the Consent Decree requires Maple to come into compliance with its obligations
under federal law, requires the payment of $229,350.00 to the federal government, and requires the
payment in the future of stipulated penalties for the SEP which will preserve and protect the
watersheds directly affected by Maple’s mining operations.
Maple does not admit the alleged violations, and the Court finds this decree to represent a
fair compromise of this litigation. Early on, Plaintiffs faced a dispositive motion involving
complicated legal issues such as standing, abstention, the effect of state proceedings on the
selenium limitations contained in Maple’s NPDES permit, and the diligence of parallel state
enforcement actions. Ultimately, the Court found that Plaintiffs did not have standing to sue for
permit violations at one of the outfalls. The other issues were largely resolved in favor of the
plaintiffs, though this settlement arrived just as the Court was poised to decide whether a different
Consent Decree, entered in the parallel state enforcement action, rendered Plaintiffs’ remaining
claims moot.
IV. Conclusion
Based upon the foregoing, the Court finds that the Consent Decree is fair, adequate, and
reasonable. The court further finds that the proposed agreement is not the product of collusion
and is in the public interest. In light of this conclusion, and there being no objection, the Court
ORDERS that the Consent Decree be entered with the Court’s approval on this date. With the
entry of this decree, the Court ORDERS that this action be, and hereby is, dismissed and stricken
from the active docket, with the Court retaining jurisdiction over this case as set forth in Part XIV

5

of the Consent Decree. The Court DIRECTS the Clerk to send a copy of this written Opinion and
Order to counsel of record and any unrepresented parties.

ENTER:

June 26, 2012

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

6