Ohio Valley Environmental Coalition, Inc. v. Coal-Mac, Inc., 775 F. Supp. 2d 900

This is a federal citizen-suit action under the Clean Water Act and SMCRA brought by OVEC against Coal-Mac, Mingo Logan, Independence, and Jacks Branch regarding selenium limits in WV/NPDES permits.
The WV/NPDES permits at issue include five Coal-Mac/Mingo Logan permits and three Independence/Jacks Branch permits, each with selenium effluent limits and construction schedules for selenium treatment facilities.
WVDEP had issued modifications delaying effective selenium limits, which Coal-Mac, Mingo Logan, Independence, and Jacks Branch appealed to WV EQB, seeking stays of the limits and of the modification decisions.
The Environmental Quality Board (EQB) granted stays in several cases, staying both the decisions and the effective dates of the selenium limits pending state review.
Plaintiffs filed federal citizen suits asserting ongoing violations of permit limits and seeking declaratory, injunctive relief, civil penalties, and related relief.
The court must decide whether the EQB stays affect the selenium limits and whether the case is ripe and within federal jurisdiction despite ongoing state proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether OVEC has standing to sue.	OVEC members allege ongoing recreational/aesthetic injuries.	Court should follow Summers to require imminent, concrete injury.	OVEC has standing based on concrete, imminent recreational injuries.
Whether the EQB stays stay the selenium limits.	Stays do not affect the federal permit requirements and are not modifications.	Stays effectively delay or modify the limits.	EQB stays do not stay the selenium limits; permits remain in effect.
Whether the EQB stays exceed statutorily authorized stay scope.	Stays are within the EQB's stay authority under WV law.	Stays exceed scope and suspend underlying permit effectiveness.	EQB exceeded authority; underlying permits/limits remain operative.
Whether Plaintiffs satisfied the 60-day notice and other conditions for a CWA/SMCRA citizen suit.	Notice letters gave sufficient detail of alleged violations.	Stays render limits not in effect, undermining notice adequacy.	Plaintiffs satisfied 60-day notice and ongoing violation requirements.
Whether this federal action is precluded or stayed due to ongoing state review.	Cooperative federalism allows concurrent federal enforcement.	State proceedings should defer to state review before federal action.	Rooker-Feldman/ Burford abstention do not bar or require dismissal; action proceeds.

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (U.S. 2000) (injury-in-fact and redressability for environmental suits core to standing)
Gaston Copper Recycling Corp. v. United States, 204 F.3d 149 (4th Cir. 2000) (standing for environmental organizations based on recreational/aesthetic interests)
Summers v. Earth Island Institute, 555 U.S. 488 (U.S. 2009) (imminence and concrete injury required for standing, context-specific)
Laidlaw Environmental Services (TOC) v. Garland, 529 U.S. 167 (U.S. 2000) (recreational/aesthetic interests sufficient for standing; injury-in-fact need not be IOU future plans only)
Gwaltney of Smithfield, Ltd. v. Ches. Bay Found., 484 U.S. 49 (U.S. 1988) (Gwaltney II standard for continuing violations under Gwaltney framework)
Gwaltney of Smithfield, Ltd. v. Ches. Bay Found., 844 F.2d 170 (4th Cir. 1988) (Gwaltney II—continuing or intermittent violations establish jurisdiction)
Aracoma Coal Co. v. United States EPA, 556 F.3d 177 (4th Cir. 2009) (Fourth Circuit on cooperative federalism and CWA/state roles)
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (U.S. 2005) (explanation of jurisdiction in parallel state-federal proceedings; Rooker-Feldman scope)
Burford v. Sun Oil Co., 319 U.S. 315 (U.S. 1943) (abstention as narrow exception in complex state regulatory schemes)
Martin v. Stewart, 499 F.3d 360 (4th Cir. 2007) (Burford abstention balancing test in Fourth Circuit)