ELR Citation: ELR 20052
No(s). 2:08-1363 (S.D. W. Va. Feb 3, 2010)

A district court granted in part and denied in part environmental groups’ motion for summary judgment on certain CWA and SMCRA claims against a mining company. Prior to the filing of the lawsuit, the company had entered into a consent order with the West Virginia Department of Environmental Protection (WVDEP) for violations of permits that imposed effluent limitations. The court held that the groups’ claims were not precluded as a collateral attack on the civil penalties imposed by the order. This is not one of those instances in which a state enforcement action is to be given preclusive effect. While the WVDEP’s decision warrants deference, deference does not become a bar. The groups are therefore not barred from seeking additional penalties for violations within the consent order or those occurring afterwards. In addition, with respect to those violations occurring after the consent order, the groups’ claims do not usurp the WVDEP’s role as the primary enforcer of the CWA. If an agency is unable to compel compliance and the alleged violator continues to violate the CWA following a 60-day period, citizens are empowered to enforce the terms of the CWA through a citizen suit. The groups complied with this time frame here. On the merits, although modification orders were issued by the WVDEP that extended the compliance date for aluminum effluent, the orders did not comply with the requisite procedures. They were therefore defective and the citizen suit may proceed based on the terms of the original permits. For certain post-suit violations, the groups were able to establish that there is no genuine dispute of material fact based on discharge monitoring reports submitted by the company to the WVDEP. For the remaining post-suit violations, there is still a genuine dispute of material fact as to whether the trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations. An affidavit and the company’s expectation that the problem is resolved are insufficient to make it absolutely clear that the violations could not reasonably be expected to recur.

[A prior decision in this litigation can be found at 39 ELR 20199]