Ohio Valley Environmental Coalition, Inc. v. Hernshaw Partners, LLC
984 F. Supp. 2d 589
S.D.W. Va2013Background
- Plaintiffs are environmental groups alleging defendant discharges selenium in violation of the Clean Water Act (CWA).
- Defendant owns land previously used for coal mining, including a valley fill in a Laurel Fork tributary.
- Valley fill allegedly discharges selenium into Laurel Fork in violation of §301 of the CWA.
- Plaintiffs seek a declaration of violation, injunction, and civil penalties; at least one member is allegedly affected.
- Defendant moved to dismiss for lack of standing and failure to state a claim; plaintiffs seek leave to amend to clarify standing and CWA theory.
- Court grants leave to amend and denies defendant’s Rule 12(b)(1) and Rule 12(b)(6) motions, finding the amended complaint would survive a motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether amendment would survive Rule 12(b)(1) as to standing | Plaintiffs allege associational standing with injury-in-fact from aesthetic/recreational impact | Plaintiffs lack standing under Article III | Amendment not futile; standing satisfied |
| Whether amendment would survive Rule 12(b)(6) for standing | Proposed facts show injury-in-fact, traceability, and redressability | Proposed facts insufficient to show standing | Amendment not futile; organizational standing established |
| Whether there is an ongoing violation under the CWA | Discharges continue given sampling near valley fill and lack of other sources | Past discharges ceased; not ongoing | Amendment not futile; ongoing violation supported by Fourth Circuit test |
| Whether the valley fill constitutes a point source under the CWA | Valley fill collects and discharges pollutants via a discrete conveyance | Discharges are from nonpoint runoff/source; no point source | Valley fill found to be a point source under broad §1362(14) interpretation |
| Whether the discharge goes into navigable waters | Discharge to an unnamed Laurel Fork tributary qualifies as navigable water | Unnamed tributaries may not be navigable waters | Discharge into navigable waters adequately alleged |
Key Cases Cited
- Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir.2000) (injury-in-fact shown by recreational interests in environment)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987) (ongoing violation concept in citizen suits)
- Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690 (4th Cir.1989) (continuing likelihood of recurrence required for ongoing violations)
- Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133 (10th Cir.2005) (definition of point source and broad interpretation of pollutants discharge)
- United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (broad interpretation of waters of the United States)
- Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir.2001) (waters of the United States include tributaries)
- West Virginia Highlands Conservancy, Inc. v. Huffman, 625 F.3d 159 (4th Cir.2010) (no causation requirement; permit needed for discharges)