JOHN T. COPENHAVER, JR., District Judge.
Pending are (1) the United States' motion to enter the proposed consent decree, filed May 2, 2011, and (2) the motions to dismiss and withdraw claims by Ohio Valley Environmental Coalition, Inc., Sierra Club, and West Virginia Highlands Conservancy, Inc. ("citizen organizations"), filed September 6, 2011.
In discussing the circumstances of this case, the court will refer to this litigation as the "Charleston action." Reference will be made as well to Ohio Valley Environmental Coalition, Inc. et al v. Coal-Mac, Inc., No. 3:10-0833, the "Huntington action", pending before the Honorable Robert C. Chambers.
On April 14, 2010, the citizen organizations gave notice to Coal-Mac, Inc. ("Coal-Mac"), Mingo Logan Coal Company ("Mingo Logan"), the United States Environmental Protection Agency ("EPA"), the Office of Surface Mining, Reclamation, and Enforcement ("OSMRE"), and the West Virginia Department of Environmental Protection ("WVDEP") of their intention to institute a civil action against Coal-Mac and Mingo Logan for certain alleged federal environmental law violations.
The citizen organizations allege that, despite this notice, EPA, OSMRE, and WVDEP failed to seasonably commence a civil or criminal action to redress the alleged violations, or an administrative penalty action. On June 11, 2010, however, the United States informed the citizen organizations that it was in negotiations with Arch Coal, Inc. ("Arch"), the parent corporation of Coal-Mac and Mingo Logan. The negotiations were aimed, in part, at addressing violations of selenium discharge limits by defendants. One focus of the discussions was West Virginia/National Pollution Discharge Elimination System ("WV/NPDES") permit WV1003763.
The United States sought out the citizen organizations' views at multiple points. After months of intense negotiations, set forth more fully below, the United States provided the citizen organizations with draft language of the injunctive relief provisions found in the draft proposed consent decree. It also engaged the citizen groups and their expert respecting the selenium treatment provisions of the draft proposed consent decree. Following these discussions, the United States sent a detailed letter to the citizen organizations purporting to address each of their concerns regarding selenium treatment. The United States then made revisions to the draft proposed consent decree and finalized it.
On June 17, 2010, the citizen organizations instituted the Huntington action for declaratory and injunctive relief. They accused Coal-Mac and Mingo Logan of violating the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. ("Clean Water Act" or "CWA"), and the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq. ("SMCRA").
The citizen organizations specifically alleged, inter alia, that Coal-Mac and Mingo Logan are discharging selenium into waters of the United States in persistent violation of section 301 of the Clean Water
One of the referenced WV/NPDES permits is WV1003763, issued to Coal-Mac to regulate discharges at its Hobet No. 7 Mine. The "permit governs discharges into the Left Fork of Right Fork of Trace Fork of Pigeon Creek from Outfall 002." Ohio Valley Environmental Coalition, Inc. v. Coal-Mac, Inc., 775 F.Supp.2d 900, 905 (S.D.W.Va.2011). The material allegations in the Huntington action relating to WV/NPDES WV1003763 are as follows:
(Huntington Action Compl. ¶¶ 49-50).
On March 31, 2011, Judge Chambers entered a memorandum opinion and order. He concluded, inter alia, that the citizen organizations were entitled to judgment as a matter of law respecting their claim relating to WV/NPDES WV1003763. The effect of that ruling, however, was subject to the following proviso:
Coal-Mac, 775 F.Supp.2d at 929.
Plaintiffs in the Charleston action are the United States, the State of West Virginia, by and through WVDEP, and the Commonwealth of Kentucky, by and through the Kentucky Energy and Environment Cabinet ("KEEC"). The principal defendant is Arch. The remaining defendants are Coal Mac, Lone Mountain Processing, Inc., Cumberland River Coal Company, and Mingo Logan (collectively "the subsidiary defendants").
Arch manages, directs, or controls environmental compliance at facilities owned by the subsidiary defendants. As a result of their coal mining and processing operations, the subsidiary defendants generate coal slurry, wastewater, and other spoil-type materials that consist of, or contain, pollutants including iron, aluminum and manganese, certain solids, and selenium.
On December 20, 2007, the EPA sought what appears to be an effluent spreadsheet from Arch for various permits issued to the subsidiary defendants. EPA wished to ascertain all effluent limitation exceedances occurring from January 1, 2003, through January 1, 2008. Arch ultimately
On March 1, 2011, plaintiffs instituted this action against defendants. It is brought pursuant to federal, West Virginia, and Kentucky law. Plaintiffs allege that defendants have discharged, and will continue to discharge, pollutants into waters of the United States, West Virginia, and Kentucky in violation of those laws.
Plaintiffs also allege that defendants are in violation of the conditions and limitations of NPDES permits issued by, inter alia, West Virginia and Kentucky pursuant to state and federal law. They seek permanent injunctive relief and civil penalties against defendants to halt the illegal discharges, as authorized by the statutes proscribing the violations.
Simultaneous with the institution of the Charleston action, the United States filed the proposed consent decree mentioned above, along with a notice reflecting its lodging with the court ("notice of lodging"). Some of the work preceding the negotiated resolution is found in the memorandum in support of the United States' motion to enter the proposed consent decree:
(U.S. Memo. in Supp. at 11).
It appears that the United States, on March 7, 2011, published the notice of lodging in the Federal Register. It provided that "The Department of Justice w[ould] accept comments relating to the proposed consent decree for a period of thirty (30) days from the date of publication of th[e] notice." Not., 76 Fed.Reg. 12369 (Mar. 7, 2011). In its March 1, 2011, notice of lodging, the United States stated that, "If, after review and evaluation of any comments received, the United States continues to believe that the ... [proposed consent decree] is fair, reasonable, and in the public interest, it will move the Court to enter" it. Id. On April 6, 2011, the citizen organizations filed with the United States the only comments received concerning the proposed consent decree.
The proposed consent decree specifically addresses WV/NPDES WV1003763.
(See Prop. Cons. Decr. ¶ 9). Article VIII of the proposed consent decree governs "SELENIUM INJUNCTIVE RELIEF." The material provisions found there are as follows:
The proposed consent decree also calls for an Alternative Selenium Compliance Plan in the event that the Selenium Treatment System fails to achieve certain specified remedial benchmarks. The Alternative Selenium Compliance Plan, which appears to have already been presented to the United States for approval, along with West Virginia for review, involves installation of a "Reverse Osmosis or Active Biological Treatment system [that will] ... include a detailed schedule for design and implementation of one of those systems." (Id. ¶ 68).
Plaintiffs have additionally "reserve[d] their right to seek other injunctive relief for violations of the Selenium Limits after the [December 31, 2011, deadline]...." (Id. ¶ 71). Stipulated penalties in amounts ranging from $1,000 to $15,000 per day apply to any violations of the section of the proposed consent decree dealing with selenium-related injunctive relief.
Article XX of the proposed consent decree governs termination, and provides as follows:
(See Prop. Cons. Decr. ¶ 136 (emphasis added)).
On April 14, 2011, the citizen organizations moved to intervene in the Charleston action. On June 22, 2011, 2011 WL 2493072, the court permitted intervention to allow the citizen organizations to be heard on, (1) the suitability of the proposed civil penalty as it relates to the selenium violations, and (2) the putatively superior selenium treatment protocols advanced by the citizen organizations. The court then set a calendar for further case events.
One requirement of the schedule was that the citizen organizations "file no later than July 15, 2011, a reasoned response to the United States' May 2 and May 31, 2011, briefing respecting its request to enter the proposed consent decree, to which the remaining parties may respond by August 1, 2011, with any reply filed no later than August 10, 2011." (Memo. op. at 34-35).
On July 15, 2011, the citizen organizations moved to suspend the case schedule. They represented that they were in the midst of negotiating, and had reached an agreement in principle about, a proposed consent decree in the Huntington action. One term of that accord apparently called for the citizen organizations to withdraw from the Charleston action. On August 3, 2011, the court extended the aforementioned briefing deadlines by approximately 30 days. On September 6, 2011, the citizen organizations moved to dismiss their claims and withdraw from the Charleston action.
On September 9, 2011, the court addressed that request as follows:
(Ord. at 1-2). On September 13, 2011, the citizen organizations responded to the September 9, 2011, order, stating "that they respectfully withdraw any objections that they have made to the proposed consent decree in their comments on that decree or elsewhere." (Cit. Orgs. Resp. at 1). On September 15, 2011, the court received separate responses from plaintiffs and defendants advising that there were no impediments to the court considering the
The court, accordingly, ORDERS that the citizen organizations' motion to dismiss and withdraw claims be, and it hereby is, granted. It is further ORDERED that the claims and objections presented by the citizen organizations, in the Charleston action, in their comments respecting the proposed consent decree or elsewhere, be, and they hereby are, deemed as dismissed and withdrawn.
Our court of appeals has observed that "a consent decree `has elements of both judgment and contract,' and is subject to `judicial approval and oversight' generally not present in other private settlements." Szaller v. American Nat. Red Cross, 293 F.3d 148, 152 (4th Cir.2002) (quoting Smyth v. Rivero, 282 F.3d 268, 279-80 (4th Cir.2002)); see also Local No. 93, Int'l Assn. of Firefighters, AFL-CIO v. Cleveland, 478 U.S. 501, 519, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986); United States v. ITT Continental Baking Co., 420 U.S. 223, 237 n. 10, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975) (citation omitted); Alexander v. Britt, 89 F.3d 194, 199 (4th Cir.1996).
It has expanded upon this principle in Smyth, observing that a court is expected, when presented with a proposed consent decree, to scrutinize the accord and make certain findings prior to entry:
Smyth, 282 F.3d at 280.
The standards governing consideration of a proposed consent decree are described further by United States v. North Carolina, 180 F.3d 574, 581 (4th Cir.1999):
Id. at 581 (emphasis supplied).
As noted in North Carolina, the court accepts the general proposition that settlements are encouraged. The consideration is especially apropos in this action, which appeared poised to consume a significant amount of time and expense by the parties, including the public fisc, along with a substantial redirection of judicial resources.
Regarding the fairness, adequacy, and reasonableness of the accord, there has been no formal discovery. There has, however, been two-and-one-half years of extensive negotiations. No one challenges the following summary by the United States:
(Memo. in Supp. of Entr. at 4-5 (citations omitted)). As in United States v. Patriot Coal Corp., No. 2:09-0099, 2009 WL 1210622 (S.D.W.Va. Apr. 30, 2009), "plaintiffs seem to have developed, without the need for extensive litigation, a substantial case to support the relief requested in the complaint." Id. at *5.
The parties' pre-suit negotiations have undeniably resulted in positive steps to correct the over 800 violations of the CWA alleged by plaintiffs. The detailed plan for addressing selenium exceedances under WV/NPDES WV1003763 is emblematic of that effort. The proposed consent decree also has other significant injunctive requirements to foster compliance, along with a civil penalty of $4 million. Specifically, the following provisions are important:
It is noteworthy as well that the proposed consent decree is sponsored, in part, by the environmental regulators in their respective spheres authorized by Congress, the Legislature, and the Commonwealth with enforcing various federal and state water quality laws. As in Patriot Coal,
Id. at *5.
As noted, the citizen organizations have withdrawn their objections and comments. It is important to emphasize that the objections and comments challenged only a very small portion of the proposed consent decree dealing with correction of selenium exceedances. (See Memo. in Supp. of Entr. at 6 ("Ninety-six percent of the alleged violations are for pollutant parameters other than selenium.")). Given their historically aggressive pursuit of environmental compliance, the citizen organizations' silence on the remainder of the parties' plan, and the lack of objection by any other individual or organization, is significant.
Having taken account of all of the applicable factors, it is apparent that plaintiffs have obtained large-scale water quality compliance without the cost, delay, and misdirection of resources that might have otherwise happened during time-consuming civil litigation. The court, accordingly, finds that the proposed consent decree is fair, adequate, and reasonable. The court further finds the accord is neither illegal nor the product of collusion and that it serves the public interest. In view of these findings, and inasmuch as no person has opposed entry of the proposed consent decree, the court ORDERS as follows:
The Clerk is requested to transmit this written opinion and order to all counsel of record and to any unrepresented parties.
(Prop. Consent Decr. ¶ 64). Other reporting obligations appear in paragraph 76 of the proposed consent decree.