WV District Court Allows Clean Water Act, SMCRA Citizen Suit to Proceed

Judge Copenhaver, US District Court judge for the Southern Dist of WV, issued a decision earlier this week that will be of interest to all holders of NPDES permits. The case is Sierra Club et al v. Powellton Coal Company, Civil Action No. 2:08-1363 and it can be found here. Judge Copenhaver concluded that a citizen suit against a coal company, seeking penalties for failure to comply with its NPDES permits, was not precluded by the fact that the WV Department of Environmental Protection had begun an administrative penalty proceeding to assess fines for the same violations.

Citizen suits under the Clean Water Act can only be brought if notice is given to the violator, the State and the EPA Administrator 60 days before the lawsuit is filed. 33 USC 1365(b). If the State initiates and is "diligently prosecuting" its own civil or criminal action before the 60 days expires, however, the citizen suit is precluded. The rule is different if the State has brought an administrative action. In that event, the state administrative action has to be of a type comparable to EPA's administrative penalty process, and the administrative action has to begin before the citizens file their notice of intent to bring an action. The requirements are set out at 33 USC 1319(g)(6) in a very poorly written, confusing section of the Clean Water Act, which I have oversimplified in an attempt to render it intelligible.

Judge Copenhaver ruled that the West Virginia administrative penalty process was not sufficiently similar to the EPA administrative process, and therefore the citizen suit was not precluded. (This relieved the judge of having to respond to the plaintiffs' 2 other allegations, that the state action was not timely and was not being diligently prosecuted.) He stated that, “[i]n light of Smithfield Foods, and because West Virginia law does not provide for the assessment of administrative penalties without the violator’s consent, the court finds that West Virginia law is not comparable to section 309(g)."

He went on to consider whether the plaintiffs could also proceed with their citizen suit under the Surface Mining Control and Reclamation Act (SMCRA), and decided that they could. Surface mine permits issued under SMCRA have conditions requiring the mining company to comply with CWA effluent limits. Powellton had argued that allowing a citizen suit under SMCRA that was premised on violation of CWA effluent limts would run contrary to Section 702 of SMCRA, which prohibits interpreting SMCRA in a way that would modify the CWA. If the effluent limits were enforced differently under SMCRA than the CWA, Powellton argued, an impermissible conflict would arise. While Judge Copenhaver agreed there could be situations where such a conflict would arise, thereby precluding the SMCRA citizen suit, he decided that in this case that would not happen, and the citizen suit under SMCRA could proceed.

The finding by Judge Copenhaver that the WV administrative penalty policy is not similar to EPA's is an important one that every NPDES permit holder should keep in mind. An administrative penalty action will not be a bar to a citizen suit unless it is completely resolved prior to notice of the suit being given.