808 F. Supp. 2d 868
S.D.W. Va2011Background
- This is a citizen suit brought under the Clean Water Act and SMCRA alleging selenium discharges from Maple Coal's Sycamore Surface Mine violate WV/NPDES and WVSCMRA permits.
- Maple's WV/NPDES permit WV1009311 was issued 2005, extended via Amended Order No. 1 to extend final selenium limits and required construction of selenium treatment facilities by dates in 2008–2010.
- Maple sought further extensions (including to 2012) and a permit renewal; WVDEP denied the modification, then Maple appealed; stays were issued by state courts delaying selenium limits.
- WVDEP filed Fayette County enforcement action seeking compliance with permit provisions, but the action was not aggressively prosecuted and stayed by court orders, raising diligence questions.
- Plaintiffs' alleged injuries are based on declarants’ use and enjoyment of Paint Creek and Armstrong Creek areas affected by discharges; standing is litigated for Outfall 043 and Outfall 006 with different outcomes.
- Court addresses jurisdictional and equitable questions including standing, diligent prosecution, necessary party issues, and abstention doctrines (primary jurisdiction, Burford, Younger).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue for Outfall 043 | OVEC/others have credible injury-in-fact due to area use. | Declarants lacked concrete use of affected stream and standing is not established. | No standing for Outfall 043; standing found only for Outfall 006. |
| Standing to sue for Outfall 006 | Declarants have long-term connection and recreational use; injury in fact verified. | Arguments rely on generalized environmental concerns; insufficient nexus. | Standing established for Outfall 006; court grants relief related to this outfall only. |
| Diligent prosecution bar (42 U.S.C. § 1365(b)(1)(B)) | State/enforcement action should moot citizen suit if diligently pursued; WVDEP failed to diligently prosecute. | State action pending and could moot suit; WVDEP should be allowed to pursue remedy. | WVDEP Fayette County action not diligently prosecuted at time suit filed; suit allowed to proceed. |
| Notice of intent sufficiency | NOI sufficiently identified alleged violations and relevant orders (Amended Order No. 1). | Notice failed to identify how stay orders affected violations and the precise violations. | Sixteen-day notice satisfied CWA/SMCRA notice requirements; NOI adequate. |
| Abstention (Younger and Burford) applicability | State proceedings should not preclude federal citizen suit; stays undermine federal jurisdiction. | State proceedings and Burford/Younger abstention warrant withholding federal jurisdiction. | Younger abstention and Burford abstention do not apply; court retains jurisdiction to resolve federal questions. |
Key Cases Cited
- Laidlaw Environmental Services, Inc. v. Gore, 528 U.S. 167 (2000) (standing focuses on injury to plaintiff, not environmental injury alone)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1988) (Gwaltney II—continuity/recurrence of violations supports standing)
- Gaston Copper II, 629 F.3d 387 (4th Cir. 2011) (environmental plaintiffs need not prove downstream water-quality violations to establish standing)
- Coal-Mac, Inc. v. Ohio Valley Env. Coal., Inc., 775 F. Supp. 2d 900 (S.D. W. Va. 2011) (abstention and diligence analyses in selenium/permit contexts)
- Hobet Mining, LLC v. Ohio Valley Envtl. Coal., Inc., 723 F. Supp. 2d 886 (S.D. W. Va. 2010) (diligent prosecution and parallel state/federal actions)
- Apogee Coal Co., LLC v. Ohio Valley Envtl. Coalition, Inc., 531 F. Supp. 2d 747 (S.D. W. Va. 2008) (state/federal enforcement interaction under CWA)
- Ecological Rights Found. v. Pacific Lumber Co., 230 F.3d 1141 (9th Cir. 2000) (standing requires credible nexus to area of concern)
- Fritzsche, Dodge & Olcott, Inc. (?), 579 F. Supp. 1528 (D.N.J. 1984) (consideration of diligence in state enforcement context)
- Appellee v. Martin, 499 F.3d 360 (4th Cir. 2007) (burden of abstention balanced with federal rights)