JOHN PRESTON BAILEY, District Judge.
Currently pending before this Court is Defendant ICG Eastern, LLC's ("ICG") Motion to Dismiss [Doc. 6], filed April 25, 2011. The plaintiff responded to the Motion to Dismiss on May 12, 2011 [Doc. 9], and the defendant replied on May 23, 2011 [Doc. 10]. The Court has reviewed the record and the arguments set forth by the parties and, for the reasons set forth below, concludes that the Motion to Dismiss should be
Plaintiffs' claims are brought pursuant to the provisions for "citizen suits" found in section 505(a) of the Clean Water Act ("CWA"), 33 U.S.C. § 1365(a), and section 520(a) of the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. § 1270(a). A brief overview of the governing statutory and regulatory regimes will help to elucidate the issues before this Court.
The purpose of the Clean Water Act is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In service of those ends, the statute prohibits the "discharge of any pollutant by any person" unless such discharge complies with the provisions of the CWA. See 33 U.S.C. § 1342(a)(1). One such provision, codified at 33 U.S.C. § 1342, "established a National Pollution Discharge Elimination System ["NPDES"] ... that is designed to prevent harmful discharges into the Nation's waters." Piney Run Pres. Ass'n v. County Comm'rs of Carroll County, Maryland, 523 F.3d 453, 455-56 (2008) (quoting Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007)). NPDES requires dischargers to obtain permits that contain effluent limitations — restrictions
The Environmental Protection Agency ("EPA") initially administers the NPDES program for each state, but the states may apply for a transfer of permitting authority to state officials. Nat'l Ass'n of Home Builders, 551 U.S. at 650, 127 S.Ct. 2518. Once authority is transferred, state officials are responsible for reviewing and approving NPDES permits. Id. However, the EPA retains an oversight role in the permitting process; the state must advise the EPA of each permit it proposes to issue, and the EPA may lodge an objection to any permit. Id. at 650 n. 1, 127 S.Ct. 2518 (citing 33 U.S.C. §§ 1342(d)(1), (2); 40 C.F.R. § 123.44(c)). If the state fails to resubmit a revised permit that satisfies the EPA's objection, authority over the permit reverts to the EPA. Id. at 650 n. 1, 127 S.Ct. 2518 (citing 33 U.S.C. § 1342(d)(4)).
Congress enacted the SMCRA in order to ensure that "coal mining operations are so conducted as to protect the environment." 30 U.S.C. § 1202(d). Like the CWA, the SMCRA allows states to adopt their own regulatory programs, so long as those programs comply with the requirements of federal law.
The enforcement schemes established by both the CWA and SMCRA carve out a
In service of that aim, Congress carefully restricted the right to bring a citizen suit. Both the CWA and SMRCA expressly stipulate that no citizen suit may be brought if the government "has commenced and is diligently prosecuting a civil or criminal action ... to require compliance" with the CWA or SMCRA. 30 U.S.C. § 1270(b)(1)(B); see also 33 U.S.C. § 1365(b)(1)(B).
This case arises out of a coal company's alleged noncompliance with the conditions of two permits issued pursuant to the Clean Water Act and the Surface Mining Control and Reclamation Act. At all times relevant to this action, defendant ICG owned and operated the Knight-Ink No. 1 Surface Mine located in Webster County, West Virginia. Plaintiffs' Complaint at ¶ 11. That mine, which is regulated by WVSCMRA Permit S201988, discharges pollutants via several outfalls into the waters surrounding the mine. See id. at ¶ 38. Those discharges are regulated by WV/NPDES Permit WV0094889, which limits the type and quantity of pollutants which may permissibly be discharged. See id. at ¶¶ 38-39.
Defendant's WV/NPDES permit places limits on, inter alia, the concentrations of selenium
Order 731 also included a compliance schedule which required ICG to begin construction of selenium treatment facilities
In October 2009, ICG applied to WVDEP for another modification of its permit which would extend the April 5, 2010 effective date for the selenium limitations at Outfalls 001, 002, 005, 014, and 021 until July 1, 2012. See id. at ¶ 46; Defendant's Memorandum of Law at 3. In February 2010, WVDEP gave public notice of its intent to grant the requested extension. Id. at ¶ 47. However, in March 2010, the Environmental Protection Agency filed a formal objection to the extension, halting the permit modification process. Id. at ¶¶ 47-48. On April 2, 2010, three days before the selenium limitations were slated to take effect, WVDEP had not yet resolved the EPA's objection or made a final decision regarding the permit modification; thus, ICG filed an administrative appeal with the West Virginia Environmental Quality Board which (1) challenged the timeliness of WVDEP's decisionmaking process with respect to the requested permit modification and (2) requested that the selenium limitations be stayed from taking effect pending disposition of the appeal. Id. at ¶ 51; see Defendant's Exhibit 5 at 2-3. The EQB granted the stay. Defendant's Exhibit 5 at 26-27. Concurrently with filing its appeal and request for stay with the EQB, ICG also filed a petition with the Circuit Court of Kanawha County requesting that the selenium limitations be enjoined from taking effect. See Defendant's Exhibit 7. The Kanawha County court granted the requested injunction. Id.
Because WVDEP was unable to resolve the EPA's objection, ICG's permit modification request was ultimately denied. Id. at ¶ 48; Defendant's Memorandum of Law at 4. In September 2010, ICG filed an appeal of the denial with the EQB, which included a request that the previously granted stay be extended to apply to the new appeal. See Defendant's Exhibit 8. A hearing in the new appeal, set for February 2011, was continued on ICG's motion pending the outcome of the Webster County action described below. See Plaintiffs' Exhibit 1.
On April 14, 2010, plaintiffs sent a Notice of Intent letter ("NOI") to ICG, informing the company of its alleged effluent violations and expressing intent to file suit at the end of the statutory 60-day waiting period. Plaintiffs' Complaint at ¶¶ 59-60. Three days prior to the expiration of that waiting period, WVDEP filed suit against ICG in the Circuit Court of Webster County, West Virginia. Id. at ¶ 63. About six months later, WVDEP released for public comment a proposed Consent Decree ("Draft Consent Decree"), which if ultimately approved would resolve the Webster County action. Id. at ¶ 64. The terms of the Draft Consent Decree set forth a schedule of tiered interim limitations on selenium discharges at all eight outfalls, coupled with increasingly heavy daily fines for violation of those interim
On March 23, 2011, plaintiffs filed suit against ICG Eastern in the United States District Court for the Northern District of West Virginia based on federal question jurisdiction, pursuant to 28 U.S.C. § 1331, and the citizen suit provisions of the Clean Water Act, 33 U.S.C. § 1365, and the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1270. The Complaint [Doc. 2] brings three Claims for Relief: first, for violations of the effluent limitations of defendant's WV/NPDES permit, actionable under the CWA; second, for violation of the terms of Order 731, also actionable under the CWA; and third, for violation of the performance standards of defendant's WVSCMRA permit, actionable under SMCRA. Plaintiffs seek declaratory and injunctive relief from this Court.
Defendant moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), claiming, inter alia, that plaintiffs' suit is precluded under the CWA and SMCRA. The plaintiff bears the burden of proving that subject matter jurisdiction exists. See, e.g., Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). Challenges to jurisdiction under Rule 12(b)(1) may be raised in two critically different ways. First, the movant may argue that the complaint fails to allege facts upon which subject matter jurisdiction can be based. E.g., Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). In that case, all the facts alleged in the complaint are assumed to be true and all reasonable inferences are drawn in favor of the nonmovant. See id. Second, the movant may challenge the veracity of the material jurisdictional facts. Id. In that type of challenge — the type presented by this action — "[u]nlike the procedure in a 12(b)(6) motion where there is a presumption reserving the truth finding role to the ultimate factfinder, the court in a 12(b)(1) hearing weighs the evidence to determine its jurisdiction," and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Id.
Both the CWA and SMCRA bar citizens from suing if the federal or state government has already commenced, and is "diligently prosecuting," an enforcement action "to require compliance with [the law]." Piney Run, 523 F.3d at 456 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 175, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)); see also Ohio Valley Envtl. Coal., Inc. v. Hobet Mining, LLC, 723 F.Supp.2d 886, 905 (S.D.W.Va.2010). This "statutory bar is an exception to the jurisdiction granted [by the statutes], and jurisdiction is normally determined as of the time of the filing of a complaint." Piney Run, 523 F.3d at 456 (quoting Chesapeake Bay
Enforcement actions are considered "diligent" if they are "capable of requiring compliance with the Act and [are] in good faith calculated to do so," and as both parties to this action acknowledge, diligence is presumed. Piney Run, 523 F.3d at 459. Citizen-plaintiffs bear a heavy burden when challenging the diligence of a prosecution; merely showing that the government's prosecution is less aggressive than plaintiffs would prefer is insufficient to overcome the presumption. Id.; see also Karr v. Hefner, 475 F.3d 1192, 1198 (10th Cir.2007). Moreover, when the government and the alleged polluter enter into a consent decree designed to cure violations of the CWA, courts "must be particularly deferential to the [government] agency's expertise." Piney Run, 523 F.3d at 459. Such deference serves an important practical purpose: if citizens could file suit "in order to seek the civil penalties that [the government] chose to forgo, then [the government's] discretion to enforce the Act in the public interest would be curtailed considerably." Gwaltney, 484 U.S. at 61, 108 S.Ct. 376. The deference owed, however, is not unlimited; the analysis requires more than "mere acceptance at face value of the potentially self-serving statements of a state agency and the violator." Hobet Mining, 723 F.Supp.2d at 906.
It is undisputed that WVDEP was prosecuting an action against defendant in state court at the time plaintiffs filed their Complaint. As previously discussed, that action resulted in the drafting of a Consent Decree between WVDEP and defendant, which if approved would resolve the Webster County litigation. In spite of those uncontroverted facts, plaintiffs argue that this suit is not barred by the language of the citizen-suit provisions. First, plaintiffs contend, the Draft Consent Decree is not capable of requiring defendant's compliance because (1) the fine it imposes for defendant's past violations is extremely small, and (2) it grants yet another deadline extension in a continual series of such extensions — thus giving defendant no meaningful incentives, pecuniary or otherwise, to obey its effluent limits. Second, plaintiffs suggest that WVDEP has acted in bad faith by "using a state court proceeding to preclude a real enforcement action" against defendant. Third, plaintiffs argue that the Webster County action does not seek to prosecute defendant for any violations which took place during the period of time in which the EQB and Kanawha County stays were in force. This Court holds, on the record before it, that plaintiffs have failed to meet their high burden of establishing that WVDEP's prosecution of defendant was not diligent.
In this Court's view, it cannot convincingly be contended that the Draft Consent Decree between defendant and WVDEP is incapable of requiring compliance with the permit limitations. The Draft Consent Decree requires that defendant immediately take measures to ensure compliance with all effluent limits and sets out a detailed plan to ensure compliance for the outfalls at issue in this litigation. Each outfall is subject to a triphasic effluent limitation schedule. Each phase levies increasingly significant fines for every day of violation, starting at $1,000/day and increasing to $10,000/day. Additionally, failure to conform to the deadlines for installation, reporting, and compliance set forth in the detailed plan triggers another tiered set of daily fines from $500/day to $1000/ day over a 30-day period of time. In light of these significant financial incentives, the
Plaintiffs argue that the "unconscionably small" civil penalty imposed for defendant's past violations is evidence that the Draft Consent Decree cannot require compliance. But "a citizen-plaintiff cannot overcome the presumption of diligence by showing that the agency's prosecution strategy is less aggressive than he would like or that it did not produce a completely satisfactory result." Id. at 459. Although the fine is less than plaintiffs would have imposed themselves, that fact alone does not render WVDEP's prosecution lacking in diligence. See Gwaltney, 484 U.S. at 60-61, 108 S.Ct. 376; see also City of Dallas, 529 F.3d at 531 ("That [citizen-plaintiff] might have sought stiffer penalties against [polluter] does not change the result; [citizen-plaintiff] is not permitted to upset the primary enforcement role of the EPA by seeking civil penalties that the Administrator chose to forgo ..."); Comfort Lake Ass'n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351 (8th Cir.1998) ("While [citizen-plaintiff] might have preferred more severe civil penalties, [the state enforcement agency] has the primary responsibility for enforcing the Clean Water Act."). Here, defendant is subject to a strict schedule of fines for future violations in addition to the cost it will incur by installing new treatment technologies to ensure its outfalls come into and remain in compliance.
Plaintiffs cite Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 890 F.Supp. 470 (D.S.C.1995), for the proposition that a prosecution which does not recover the economic benefit of a polluter's noncompliance is non-diligent. Significantly, however, the Consent Order entered in Laidlaw purported to settle not only past violations of the polluter's effluent limits, but also all future violations of those limits. 890 F.Supp. at 490. Unlike defendant in the instant action, the Laidlaw polluter was not subject to interim effluent limits and future fines designed to force compliance with the law; the fine imposed by the Consent Order represented the sum total of its pecuniary punishment. Id. Furthermore, the Laidlaw court "did not hold that [the failure to recover economic benefit], standing alone, would always support a finding of non-diligent prosecution ... [t]he economic benefit issue was a factor, but was by no means the only factor, upon which the decision rest[ed]." Order on Motion for Reconsideration, Laidlaw, 890 F.Supp. at 498-99.
This Court is unpersuaded by plaintiffs' assertions that WVDEP's enforcement action was not in good faith calculated to require compliance. Plaintiffs point again to the size of the fine assessed against defendant and to the extension of final compliance dates in an attempt to substantiate their claims. In this Court's view, those matters provide no basis to impute a wrongful motive to WVDEP. The Webster County suit did not languish for a long period of time without action; only six months passed between the time the complaint was filed and lodging of the Draft Consent Decree. Cf. Jones v. City of Lakeland, 224 F.3d 518, 522 (6th Cir.2000) (10-year enforcement action which waived deadlines contained in four Consent Decrees not diligent). As previously discussed, the Draft Consent Decree requires defendant's immediate compliance with interim limitations and imposes a meaningful daily fine for any violations. "Government prosecution need not be zealous or far-reaching — only diligent." Piney Run, 523 F.3d at 459 (quoting Karr, 475 F.3d at 1197).
Finally, plaintiffs argue that their First and Third Claims for Relief seek to prosecute defendant for certain violations not covered by WVDEP's Webster County complaint — specifically, any violations that occurred during the period of time the EQB and Kanawha County stays were in force. Plaintiffs allege that those stays were invalid, and therefore that WVDEP has not prosecuted defendant for any violations that fell within that window. This Court need not decide, however, whether the stays were valid to resolve the pertinent jurisdictional question. "The focus of the statutory bar to citizen's suits is ... on whether corrective action already taken and diligently pursued by the government seeks to remedy the same violations as duplicative civilian action." N. and S. Rivers Watershed Ass'n, Inc. v. Town of Scituate, 949 F.2d 552, 556 (1st Cir.1991). The Draft Consent Decree orders defendant's compliance with "all effluent limits for all Outfalls 001-036" (emphasis added). That order unequivocally requires defendant to comply with all of its effluent limitations; plaintiffs' claims, therefore, are duplicative, as WVDEP has taken the appropriate corrective action.
Because there is no basis upon which to conclude that WVDEP's prosecution of defendant for its effluent limitation violations is non-diligent, this Court holds that plaintiffs' citizen suit as to their First and Third Claims for Relief is barred by statute. This holding, however, does not fully extinguish the jurisdictional inquiry.
As both parties agree, plaintiffs' Second Claim for Relief is not included in WVDEP's ongoing enforcement action, and is therefore not subject to the statutory bar concerning diligent prosecution. Order 731 required that defendant begin construction of selenium treatment facilities by October 2008 and that such construction be completed by April 2010. Plaintiffs allege in their Second Claim for Relief that defendant failed to meet those deadlines and thus is in ongoing violation of the Order, an actionable offense under the CWA.
Article III of the Constitution mandates that a court hear only continuing cases and controversies. See United States v. Ala. S.S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 64 L.Ed. 808 (1920). A case becomes moot when the issues presented are no longer "live," or when then parties lack a legally cognizable interest in the outcome. Incumaa v. Ozmint, 507 F.3d 281,
Developments in a government action subsequent to the filing of a citizen-plaintiff's complaint may moot the citizen suit. See Chesapeake Bay Found., 769 F.2d at 209. While the standard applied when a polluter voluntarily complies with the law is a formidable one,
In the instant case, a legally binding Consent Decree was entered in the Webster County court in April 2011. See Defendant's Exhibit 13. Plaintiffs argue that the Consent Decree does not resolve their claims as to Order 731, and that defendant's mootness argument is premature. This Court disagrees. Plaintiffs complain that defendant failed to begin and complete construction of selenium treatment facilities by the dates set forth in Order 731. The Consent Decree sets forth a detailed schedule for implementation of such facilities that requires defendant to install technologies other than wetland systems, including ion exchange treatment and microbial reduction technologies, with start-up scale systems to be in place within 90 days from the date of the Consent Decree. The Consent Decree requires defendant to make regular reports to WVDEP regarding those treatment systems and to hire an independent consultant, who will also report to WVDEP, to review and analyze the effectiveness of the treatment systems. Importantly, the Consent Decree does not bind defendant to the use of any particular technology; the schedule set forth is designed in a fashion that allows defendant and outside experts to ascertain, through testing and reporting, what sort of treatment facilities will successfully bring defendant into compliance with its effluent limitations. Noncompliance with the terms of the Consent Decree, including the schedule for implementation of all necessary treatment facilities, carries with it meaningful financial consequences that are not contingent upon the success or failure of any particular technology.
Taking all these facts into consideration, this Court holds that there is little reason to believe that any of defendant's violations related to the installation of treatment facilities will "continue in the sense that [they] will not be cured even after the remedial plan imposed by the consent decree has been fully implemented in accordance with reasonable timetables." See Hobet Mining, 723 F.Supp.2d at 910 (citing City of Dallas, 529 F.3d at 530) (internal quotations omitted). Therefore, plaintiffs' Second Claim for Relief must be dismissed as moot.
For the foregoing reasons, this Court finds that Defendant's Motion to Dismiss [Doc. 6] should be, and hereby is,
It is so
