Pending before the court is the plaintiffs’ Motion for Leave to File Amended Complaint for Declaratory and Injunctive Relief and for Civil Penalties [Docket 19]. For the reasons stated below, the plaintiffs’ motion is GRANTED. The plaintiffs are DIRECTED to file their proposed amended complaint within ten days of this Order.
Also pending before the court is the defendant’s Rule 12(b)(1) Motion to Dismiss [Docket 11] and Rule 12(b)(6) Motion to Dismiss [Docket 13]. For the reasons stated below, these motions are DENIED.
I. Background
The plaintiffs allege that the defendant discharges selenium in violation of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., otherwise known as the Clean Water Act. The defendant is the owner of land that was previously used for coal mining operations. (Compl. for Deck and Inj. Relief and for Civil Penalties [Docket 1], ¶ 9). Those mining operations involved the construction of a valley fill in a tributary of Laurel Fork of Ben Creek of Tug Fork. (Id. ¶¶ 9, 27). The plaintiffs allege that this valley fill is the source of selenium being discharged into the Laurel Fork tributary in violation of section 301 of the Clean Water Act, 33 U.S.C. § 1311. (See id. ¶¶ 1-2).
The plaintiffs are environmental groups. They allege that at least one of their members is personally affected by the selenium discharges. The plaintiffs seek a declaration that the defendant has violated and continues to violate the Clean Water Act, an injunction preventing the defendant from continuing to discharge selenium into Laurel Fork, and civil penalties pursuant to the Clean Water Act. (See id. at 9).
The defendant moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing [Docket 11] and under Rule 12(b)(6) for failure to state a claim [Docket 13]. Although the plaintiffs oppose both motions to dismiss, they seek to amend their complaint “out of an abundance of caution” to clarify the facts that support their Article III standing and their claim under the Clean Water Act. (Reply in Supp. of Pis.’ Mot. for Leave to File Am. Compl. for Deck and Inj. Relief and for Civil Penalties [Docket 27], at 1).
As I explain below, the plaintiffs can amend their complaint only if the amendments would survive a motion to dismiss. Therefore, whether to grant the plaintiffs’ motion to amend and the defendant’s motions to dismiss will necessarily involve the same legal analysis.
II. Legal Standard for Amendment of Pleadings
Rule 15(a) of the Federal Rules of Civil Procedure permits amendment of a complaint after a responsive pleading has been filed “only with the opposing party’s written consent or the court’s leave.” Fed. R.Civ.P. 15(a)(2). Such leave should be freely given by the court “when justice so requires.” Id. This is a permissive standard. The Fourth Circuit “reads Rule 15(a) to mean that leave to amend should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or amendment would be futile.” Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc.,
The defendant argues that it would be futile to allow the plaintiffs to amend their complaint because it cannot survive a motion to dismiss under Rule 12(b). Specifically, the defendant argues that the plaintiffs lack Article III standing and have failed to state a claim. In determining if the amendment is futile, I apply the same standard used in determining whether to grant a motion to dismiss. See Wash. Gas Light Co. v. Prince George’s Cnty. Council Sitting as Dist. Council,
A. The amendment is not futile for lack of Article III standing
First, the defendant argues that the plaintiffs lack standing under Article III of the United States Constitution. In determining whether these plaintiffs lack standing under their proposed amended complaint, I will accept as true the facts alleged in that pleading. See Kerns v. United States,
To have standing, a plaintiff must meet the following requirements: (1) the plaintiff must have suffered an “injury in fact,” (2) the injury must be “traceable to the challenged action of the defendant,” and (3) it must be “likely ... that the injury will be redressed by a favorable decision” from the court. Lujan v. Defenders of Wildlife,
There is a relatively low threshold for establishing an injury-in-fact in environmental litigation. “[EJnvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
At least one of Plaintiffs’ members lives in Mingo County and has visited in the past and plans to continue to visit Ben Creek, including the area around Laurel Fork. That member is aware of Defendant’s unpermitted selenium discharges from the Valley Fill and of elevated selenium levels in Laurel Fork. Plaintiffs’ member knows that selenium can harm animals and is concerned about the effects of the unregulated selenium discharges on aquatic life, birds, and other wildlife that rely on healthy streams. That member’s knowledge of Defendant’s unmonitored, unregulated selenium discharges causes her to enjoy the affected waterways less than she would otherwise. Plaintiffs’ member’s knowledge of the unregulated discharges causes her to refrain from bringing her grandchildren to enjoy the affected*594 waters in the ways that Plaintiffs’ member did when she was a child.
([Proposed] Compl. for Decl. and Inj. Relief and for Civil Penalties (“Proposed Am. Compl.”) [Docket 19-1], ¶ 13). These allegations, which concern the plaintiffs’ “aesthetic or recreational interests,” are sufficient to show an injury-in-fact. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.,
To establish the second element of standing—traceability—the plaintiffs need not show to scientific certainty that the defendant’s conduct “caused the precise harm suffered by the plaintiffs.” Natural Res. Def. Council, Inc. v. Watkins,
The third element of standing—redressability—is clearly established. The plaintiffs seek injunctive relief and civil penalties to halt the discharge of selenium from the defendant’s valley fill. “A plaintiff seeking injunctive relief shows redress-ability by alleging a continuing violation ... of the statute at issue.” Friends of the Earth,
Finally, the plaintiffs must show that they have associational standing, which requires a showing that their members (1) “would otherwise have standing to sue in their own right,” (2) “the interests [they] s'eek[] to protect are germane to the organization^’] purpose,” and (3) “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver Comm’n,
Because the facts as alleged in the plaintiffs’ proposed amended complaint are sufficient to confer organizational standing under Article III, I FIND that the plaintiffs’ proposed amended complaint would survive , a Rule 12(b)(1) motion to dismiss and is therefore not futile.
B. The amendment is not futile for failure to state a claim
The defendant also argues that the proposed amended complaint is futile because it fails to state a claim. To determine whether the proposed amended complaint is futile, I will detérmine whether it would survive a motion to dismiss under Rule 12(b)(6). A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a complaint or pleading. Giarratano v. Johnson,
In determining whether a plausible claim exists, the court must undertake a context-specific inquiry, “[b]ut where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” Id. at 679,
To state a claim under Section 301 of the Clean Water Act, a plaintiff must show that the defendant “(1) discharged (2) a pollutant (3) into navigable waters (4) from a point source (5) without a permit.” Sierra Club v. El Paso Gold Mines, Inc.,
The defendant does not dispute that selenium is a pollutant or that it does not have a permit. Therefore, I will determine whether the complaint contains sufficient facts to establish the remaining elements: (1) discharge, (2) into navigable waters, and (3) from a point source.
To show that the defendant is discharging selenium, the plaintiffs state that on March 25, 1976, the West Virginia Department of Environmental Protection issued a permit to Chafin Branch Coal Company to operate a surface mine on lands that are now owned by the defendant. (Proposed Am. Compl. [Docket 19-1], ¶ 26). During operation of the mine, a valley fill was constructed that remains on the defendant’s property. (Id. ¶ 27). On March 6, 2006, the defendant took ownership of the property and the valley fill, which is no longer covered by a permit. (Id. ¶¶ 25, 29). “On February 26, 2013, a water sampler hired by Sierra Club took a water sample less than one mile downstream of the Valley Fill.... That sample demonstrated an elevated selenium concentration in Laurel Fork of 2.51 |xg/l. No other valley fills drain into Laurel Fork and upon information and belief there are no other sources of selenium in Laurel Fork.” (Id. ¶¶ 31-32).
The defendant argues that the plaintiffs have not established that selenium discharges are ongoing. According to the defendant, “[i]f selenium discharges are now occurring, said discharges could only occur though migration of residual contaminants within the fill, because the ongoing discharge activity of placing overburden for valley fill construction has terminated at least fourteen plus years ago.” (Mem. of Law in Supp. of Rule 12(b)(6) Mot. to Dismiss [Docket 14], at 9). Because the activities that caused the alleged discharges ceased long ago, the defendant contends that they cannot be said to be ongoing. For support, the defendant cites Gwaltney of Smithfield v. Chesapeake Bay Found.,
Some courts, interpreting the [Clean Water Act] and Gwaltney expansively, have held that the continuing migration of pollutants from past discharges is sufficient to establish jurisdiction under Section 505(a)(1). See Umatilla Waterquality Protective Ass’n v. Smith Frozen Foods, Inc.,962 F.Supp. 1312 , 1322 (D.Or.1997) (holding “a discharge of pollutants is ongoing if the pollutants continue to reach navigable waters, even if the discharger is no longer adding pollutants to the point source itself’); Werlein v. United States,746 F.Supp. 887 , 897 (D.Minn.1990) (holding pollutants from past discharges that are released over time by infiltration of contaminated soil is “ongoing pollution”), class, cert.*597 vacated by793 F.Supp. 898 (D.Minn.1992).
Other courts, before and after Gwaltney, have reached the opposite conclusion, holding that the migration of residual contamination from prior discharges is not an ongoing violation. See Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co.,989 F.2d 1305 , 1312-13 (2d Cir.1993) (“The present violation requirement of the Act would be completely undermined if a violation included the mere decomposition of pollutants.”); Pawtuxet Cove Marina v. Ciba-Geigy Corp.,807 F.2d 1089 , 1094 (1st Cir.1986) (dismissing citizen suit because the alleged polluter had ceased operations by the time of the suit); Hamker v. Diamond Shamrock Chem. Co.,756 F.2d 392 , 397 (5th Cir.1985) (dismissing complaint because it “alleges only a single past discharge with continuing effects, not a continuing discharge”); Aiello v. Town of Brookhaven,136 F.Supp.2d 81 , 120 (E.D.N.Y.2001) (holding CWA does not allow citizen suit against a past polluter “for the ongoing migrating leach-ate plume”); Wilson v. Amoco Corp., 33 F.Supp.2d 969, 975-76 (D.Wyo.1998) (concluding “that migration of residual contamination from previous releases does not constitute an ongoing discharge”), factual background stated in989 F.Supp. 1159 (D.Wyo.1998); Friends of Santa Fe County v. LAC Minerals, Inc.,892 F.Supp. 1333 , 1354 (D.N.M.1995) (finding no ongoing discharge from pile of waste rock on surface); Brewer v. Ravan,680 F.Supp. 1176 , 1183 (M.D.Tenn.1988) (dismissing citizen suit based on allegations made against a permanently closed manufacturing plant).
Sierra Club v. El Paso Gold Mines, Inc.,
None of the cases cited in Sierra Club are binding on this court, and there is no Fourth Circuit precedent directly addressing whether past discharges with lingering effects give rise to a citizen suit. Nonetheless, the Fourth Circuit has stated, albeit not in the context of a citizen suit, that “[e]ach day the pollutant remains in the wetlands without a permit constitutes an additional day of violation” of Section 301 of the Clean Water Act. Sasser v. Adm’r, U.S. E.P.A.,
The phrase in § 505(a), “to be in violation,” unlike the phrase “to be violating” or “to have committed a violation,” suggests a state rather than an act — the opposite of a state of compliance. A good or lucky day is not a state of compliance. Nor is the dubious state in which a past effluent problem is not recurring at the moment but the cause of that problem has not been completely and clearly eradicated. When a company has violated an effluent standard or limitation, it remains, for purposes of § 505(a), “in violation” of that standard or limitation so long as it has not put in place remedial measures that clearly eliminate the cause of the violation.
If citizen-suits were barred merely because any illegal ditching and drainage of a wetland tract was completed before it might reasonably be discovered, violators would have a powerful incentive to conceal their activities from public and private scrutiny — which would lead to serious problems in public and private enforcement of the Clean Water Act.
Woodbury,
I agree with the reasoning set out in Woodbury and FIND that one may continue to be in violation of the Clean Water Act even if the activities that caused the violations have ceased. Other courts are in accord with this position. See, e.g., City of Mountain Park, GA v. Lakeside at Ansley, LLC,
In the instant case, the plaintiffs allege a water sampler detected elevated levels of selenium less than one mile downstream from the defendant’s valley fill and that there are no other sources of selenium in Laurel Fork. {See Proposed Am. Compl. [Docket 19-1], ¶¶ 31-32). I FIND that these facts are sufficient to state a claim for an ongoing violation of the Clean Water Act under the Fourth Circuit’s test because “a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations [of the Act].” Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd.,
The second requirement the plaintiffs must establish to state a claim under the Clean Water Act is that the defendant’s valley fill is a “point source” under the Act. Sierra Club v. El Paso Gold Mines, Inc.,
There are no cases explicitly determining whether a valley fill itself is a point source. However, the definition of a “point source” is intended to be interpreted broadly, as indicated by the statute’s “including but not limited to” language. See United States v. Earth Sciences, Inc.,
A point source ... may ... be present where miners design spoil piles from discarded overburden such that, during periods of precipitation, erosion of spoil pile walls results in discharges into a navigable body of water by means of ditches, gullies and similar conveyances, even if the miners have done nothing beyond the mere collection of rock and other materials. The ultimate question is whether pollutants were discharged from “discernible, confined, and discrete conveyance(s)” either by gravitational or nongravitational means.
See Sierra Club v. Abston Const. Co., Inc.,
Given the broad definition of a point source under 33 U.S.C. § 1362(14) and as interpreted by courts, I FIND that the plaintiffs have adequately alleged that the valley fill is a point source. The valley fill toe is a “discernible, confined and discrete conveyance,” 33 U.S.C.A. § 1362(14), whereby water percolates and is discharged into the unnamed tributary of Laurel Fork. (See Proposed Am. Compl. [Docket 19-1], ¶ 34). Unlike uncollected rainfall runoff, water discharged from the toe of the valley fill is easily ascribed to a single source: the valley fill.
The third requirement that the plaintiffs must establish to state a claim under the Clean Water Act is that the defendant discharges into a “navigable water.” Sierra Club v. El Paso Gold Mines, Inc.,
The plaintiffs allege that the defendant discharges selenium into an “unnamed tributary of Laurel Fork of Ben Creek of Tug Fork. That stream is a water of the United States.” (Proposed Am. Compl. [Docket 19-1], ¶ 1). Bodies of water that flow into streams of the United States are themselves waters of the United States. See, e.g., Headwaters, Inc. v. Talent Irrigation Dist.,
Finally, the defendant argues that it cannot be liable for the alleged discharges because it was not responsible for and received no benefits from the construction of the valley fill; the defendant is merely a passive landowner on which the valley fill sits. This argument is without merit. The Fourth Circuit Court of Appeals recently addressed this question. In West Virginia Highlands Conservancy, Inc. v. Huffman, the court held that the West Virginia Department of Environmental Protection (“WVDEP”) was required to obtain permits under the Clean Water Act for discharges that the WVDEP did not cause. See
[Tjhere is simply no causation requirement in the statute. On its face, 33 U.S.C. § 1311(a) bans “the discharge of any pollutant by any person” regardless of whether that “person” was the root cause or merely the current superintendent of the discharge. In other words, the statute takes the water’s point of view: water is indifferent about who initially polluted it so long as pollution continues to occur.
Id. at 167. Therefore, the defendant’s arguments that it did not construct the valley fill or receive any benefits from its construction are irrelevant.
Accordingly, I FIND that the plaintiffs’ proposed amended complaint would survive a motion to dismiss for failure to state a claim.
IV. Conclusion
Because it would survive a motion to dismiss, I FIND that the proposed amended complaint is not futile. Therefore, the plaintiffs’ Motion for Leave to File Amended Complaint for Declaratory and Injunctive Relief and for Civil Penalties [Docket 19] is GRANTED. The plaintiffs are DIRECTED to file their proposed amended complaint within ten days of this Order. Additionally, the defendant’s Rule 12(b)(1) Motion to Dismiss [Docket 11] and Rule 12(b)(6) Motion to Dismiss [Docket 13] are DENIED for the reasons stated above.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. The court further DIRECTS the Clerk to post a copy of this published opinion on the court’s website, www.wvsd.useourts.gov.