Judge Allows Citizen Suits to Proceed in Federal Court Despite Parallel Enforcement Actions in State Court

On December 7, 2011, Judge Robert Chambers denied Defendants’ Motion to Dismiss and ruled that Clean Water Act (“CWA”) citizen suits against three subsidiaries of Patriot Coal Corporation (Apogee Coal Company, LLC, Catenary Coal Company, LLC, and Hobet Mining, LLC) could proceed in spite of ongoing enforcement actions by the West Virginia Department of Environmental Protection (“DEP”).  See OVEC v. Patriot Coal, Case 3:11-cv-00115.   Pursuant to the CWA, a citizen suit is precluded where the “State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order [that the citizen alleges to have been violated].” 33 U.S.C. § 1365(b)(1)(B).  Although Judge Chambers found that DEP had commenced an action in West Virginia state court at the time the citizen suits were filed, he found that they lacked diligence. 

In addressing the actions against Catenary and Apogee, the Court referenced its decision from September of this year in Ohio Valley Envtl. Coal., Inc. v. Maple Coal Co., 2011 WL 3874576 (S.D.W. Va. 2011).  In Maple, the Court examined enforcement actions DEP brought against Maple Coal in Fayette County Circuit Court.  There, the Court noted that DEP would have granted Maple’s request to extend its selenium compliance deadline had EPA not objected to the modification.  Id. at 23.  According to the Court, DEP’s options to diligently prosecute an enforcement action against Maple consisted of either, (1) agreeing with EPA, acting as though the EQB stays had never been granted, and seeking to enforce the selenium limits from April 5, 2010 when they were scheduled to go into effect; or (2) disagreeing with EPA and requesting relief from the Fayette County court akin to that which DEP had initially planned to grant.  The Court characterized DEP’s enforcement action as failing to pursue either of these avenues.  Rather, according to the Court, DEP filed a vague complaint that sought neither to enforce the permit as is, inclusive of the selenium limits, nor to enforce the draft permit modification, with a compliance deadline of July 2012.  

In Patriot, the Court viewed DEP’s enforcement actions in Boone and Logan County against Catenary and Apogee in the same way: 

As in Maple, neither enforcement action appears to seek any enforcement whatsoever with regard selenium. Instead, as in Maple, both actions seek vague relief from the Logan and Boone County Circuit Courts that specifically excludes selenium from the request for immediate relief on the grounds that the selenium limitations are subject to the stay orders of the EQB and the Kanawha County Circuit Court. By acquiescing in the Stay Orders, excluding selenium from their claims for civil penalties on the basis of those Orders, and seeking in State Courts the delays already rejected by the Environmental Protection Agency, the WVDEP is not diligently prosecuting Defendants’ selenium violations. Based on their context, timing, and the relief sought, Court FINDS that these actions, like the one at issue in Maple, are not diligent prosecutions. 

OVEC v. Patriot, p. 12. 

Next, the Court addressed DEP’s Boone County enforcement action against Hobet for four NPDES permits at its mine in Boone County.  The Court had previously addressed the diligent prosecution issue as to the same four Hobet permits in  OVEC v. Hobet Mining, LLC, 3:08-cv-0088, 2008 WL 5377799 (“Hobet I”).  In Hobet I, although the Court found that the DEP’s prosecution was not diligent at the time the citizen suit was filed, it found that the September 5, 2008 consent decree entered by the Boone County Circuit Court mooted the citizen suit in federal court.  Id., at 4-5.  That consent decree, however, was modified by the parties in December 2009.  The Court addressed the impact of the modified consent decree on a separate NPDES permit in Ohio Valley Envtl Coalition v. Hobet Mining, LLC, 723 F. Supp. 2d 886 (S.D. W.Va. 2010) (“Hobet II”).  In Hobet II, the Court found that the amended consent decree was more lenient than the original and was, therefore, not a diligent prosecution.  Id., at 906-913.  In re-examining the modified consent decree in light of the four permits originally at issue in Hobet I and currently at issue in Patriot, the Court again found that the “regulatory climate for violations of selenium limitations is defined by continued extensions and enforcement actions that, rather than enforcing selenium limits, seek to accomplish in state courts the delays already rejected by the Environmental Protection Agency.”  Consequently, the Court ruled that DEP’s ongoing enforcement action against Hobet was not diligent. 

The decision in Patriot is yet another in a line of recent opinions demonstrating a willingness of West Virginia’s federal district courts to ignore DEP State Court enforcement actions in favor of allowing environmental groups to bring CWA citizen suits in federal court.  Any company entering into a consent decree with the State, who also has potential exposure to a citizen suit in federal court, should be aware of this trend. 

This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.