Ohio Valley Environmental Coalition et al v. Elk Run Coal Company, Inc. et al

Filing 158

MEMORANDUM OPINION AND ORDER directing that the Consent Decree be entered with the Court's approval on this date; directing that this action be dismissed and stricken from the active docket, with the Court retaining jurisdiction over this case as set forth in Paragraphs 49-50 of the Consent Decree. Signed by Judge Robert C. Chambers on 2/2/2015. (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,
WEST VIRGINIA HIGHLANDS CONSERVANCY and
SIERRA CLUB,
Plaintiffs,
v.

CIVIL ACTION NO. 3:12-0785

ELK RUN COAL COMPANY, INC. and
ALEX ENERGY, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
On June 4, 2014, the Court found that Plaintiffs had established, by a preponderance of the
evidence, that Defendants committed at least one violation of their West Virginia/National
Discharge Elimination System (WV/NPDES) permits. ECF No. 110.

On December 15,

2014—before proceedings to determine the number of violations, injunctive relief, and civil
penalties—Plaintiffs filed a Notice of Lodging of Proposed Consent Decree, ECF No. 155. The
Clean Water Act (“CWA”) requires that:
No consent decree 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
decree by the Attorney General and the Administrator.
33 U.S.C. § 1365(c)(3). On December 22, 2014, the Department of Justice (“DOJ”) confirmed
receipt of the proposed consent decree. ECF No. 156. On January 14, 2015, via letter by DOJ
Attorney John Tustin, this Court was notified that the United States has reviewed the proposed
consent decree and has no objections thereto. ECF No. 157.

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
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).
The Court first accepts the proposition that settlements are generally encouraged.
Continuing trial in this case would have consumed significant time and expense for the parties as
well as a significant amount of judicial resources. Importantly, a trial likely would have delayed
remediation of ongoing environmental harms.
Next, the Court turns to considering the fairness, adequacy, and reasonableness of the
proposed decree.

The proposed consent decree provides prospective injunctive relief by

requiring Defendant to comply with its NPDES permits with respect to both effluent limits and
narrative water quality standards associated with discharges of sulfates, TDS, ionic pollution, or
elevated conductivity and to achieve such compliance by August 1, 2019. The proposed consent
decree sets out a penalty schedule should Defendants fail to meet compliance requirements.
Finally, it requires Defendants to pay $493,967.58 in attorney fees and costs incurred by Plaintiffs.
In sum, the proposed consent decree requires Defendant to come into compliance with its
obligations under federal law and requires the payment of future stipulated penalties to the West
Virginia Land Trust in support of its conservation and restoration activities. Defendants do not
admit liability nor do they concede the correctness or further applicability of Plaintiffs’ legal
theory, reserving the right to challenge that theory of liability in the future. The Court finds this
decree represents a fair compromise that adequately and reasonably addresses the alleged
violations and seeks to bring Defendant into compliance with federal law.

Based on 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
Paragraphs 49–50 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:

February 2, 2015