ELR Citation: ELR 20199
No(s). 2:08-1363 (S.D. W. Va. Aug 18, 2009)

A district court denied a coal company's motion to dismiss environmental groups' CWA and SMCRA citizen suit action against it for unlawfully discharging pollutants into U.S. waters. The company argued that because West Virginia has already commenced and is diligently prosecuting an administrative penalty action under state law comparable to CWA §309(g), the court lacks jurisdiction over the groups' CWA claims. West Virginia law, however, is not comparable to CWA §309. Section 309 authorizes EPA to assess penalties for violations of the Act or a permit condition or limitation. West Virginia law, however, does not empower the state environmental agency to unilaterally assess civil penalties. Rather, it authorizes the state agency to "attempt to resolve alleged violations" through administrative proceedings and it does not provide for the assessment of administrative penalties without the violator's consent. This is markedly different from CWA §309(g). In addition, the groups stated a viable claim under SMCRA. Simply because the provision sought to be enforced incorporates, in a consistent manner, standards imposed under the CWA does not mean that enforcement thereof will alter, supercede, amend, modify, or repeal the CWA in contravention of SMCRA.