Ohio Valley Environmental Coalition v. Elk Run Coal Co.
24 F. Supp. 3d 532
S.D.W. Va2014Background
- Plaintiffs sue under CWA and SMCRA citizen-suit provisions alleging permit violations for high ionic discharges into Laurel Creek and Robinson Fork.
- Court previously found Plaintiffs have standing; this Opinion addresses statutory notice, diligent-prosecution, and jurisdiction requirements.
- Plaintiffs provided January 11, 2012, notice; suit filed March 20, 2012; regulators have not pursued independent actions against Defendants.
- Court concludes both CWA and SMCRA notice and lack of diligent-prosecution requirements are met.
- Plaintiffs rely on WV narrative water-quality standards and EPA science (WVSCI, Benchmark) to prove violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do plaintiffs satisfy CWA/SMCRA citizen-suit jurisdiction? | Plaintiffs gave sixty days’ notice; no regulator actions. | Defendants did not challenge notice; court should determine sufficiency. | Yes; jurisdiction requirements met under both statutes. |
| Are WV narrative standards violated by Defendants’ discharges? | Discharges cause significant adverse impact per WV narrative standards and WVSCI/Benchmark evidence. | ARGUMENTS rely on WVDEP Guidance; holistic approach required; WVSCI alone insufficient. | Court finds violations of WV narrative standards by both Defendants. |
| Should EPA Benchmark and 68 threshold govern over WVDEP 60.6? | EPA threshold of 68 controls impairment determinations under 303(d). | WVDEP guidance uses 60.6; | Court credits EPA 68 impairment threshold over WVDEP's 60.6. |
| Do plaintiffs prove both general and specific causation? | EPA Benchmark and multiple studies show conductivity from mining causes impairment; site-specific data support causation. | Confounding factors (habitat, temperature, sediment) could explain impairment. | Yes; Plaintiffs prove general and site-specific causation for Elk Run and Alex Energy. |
Key Cases Cited
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (establishes good-faith ongoing-violation pleading suffices for jurisdictional purposes)
- Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170 (4th Cir. 1988) (distinguishes jurisdictional proof from ultimate liability)
- Gwaltney I, 611 F.Supp. 1542 (E.D. Va. 1985) (early framing of good-faith continuous/intermittent-violation concept)
- Gwaltney II, 791 F.2d 304 (4th Cir. 1986) (affirmation of jurisdictional standard in Gwaltney III)
- Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983) (agency deference standards in environmental cases)
- Reynolds Metals Co. v. U.S. E.P.A., 760 F.2d 549 (4th Cir. 1985) (judicial deference to agency scientific determinations)
- Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832 (9th Cir. 2003) (deference to EPA scientific analyses within agency expertise)