Copenhaver Allows Environmental Groups to Pursue Penalties Even Where Fines Previously Paid to DEP

Last August 18, Judge Copenhaver of the US District Court for the Southern District of West Virginia ruled in Sierra Club et al v. Powellton Coal Co., Civ. Action No. 2:08-1363, that an administrative enforcement action to redress NPDES permit violations would not preclude a citizen suit for the same violations. The principal basis for the decision was that, under West Virginia law, an administrative penalty for NPDES permit violations could not be imposed without the violator's consent. Consequently, the state administrative procedure was not sufficiently like EPA's penalty process, and no immunity from citizen suits was conferred by the state action under Clean Water Act Section 309(g).

Judge Copenhaver has now ruled on competing summary judgment motions, and issued a February 3 decision that the citizens may continue their legal action if there is a realistic prospect that violations will continue notwithstanding the penalties imposed by the DEP. The Court expressly rejected the argument that the citizen plaintiffs' actions usurped DEP's authority. The Court noted that it would "give due regard to the actions previously taken by the WVDEP" and will presumably give credit for the stipulated penalties that Powellton Coal Co was required to pay. If the Court decides to impose additional penalties, the Court laid out the statutory factors it would consider. The Court also addressed permit modifications that were made during the time the permit violations were occurring, which affected the number of violations that were deemed to have occurred.

Judge Copenhaver granted summary judgment as to certain of the plaintiffs' claims, to the extent there was evidence of continuing violations, and left for trial the determination as to whether the remaining allegations qualified as "sporadic or intermittent" violations that could be characterized as continuing violations, and therefore subject to penalties.