CIVIL COVER SHEET JS 44 (Rev. 11/15) The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS WEST VIRGINIA HIGHLANDS CONSERVANCY, WEST VIRGINIA RIVERS COALITION, AND SIERRA CLUB Kanawha (b) County of Residence of First Listed Plaintiff DEFENDANTS RANDY C. HUFFMAN, Secretary, West Virginia Department of Environmental Protection County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) NOTE: (c) Attorneys (Firm Name, Address, and Telephone Number) (IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (If Known) J. MICHAEL BECHER, APPALACHIAN MOUNTAIN ADVOCATES, INC., PO BOX 507, LEWISBURG, WV 24901, (304) 382-4798 II. BASIS OF JURISDICTION (Place an “X” in One Box Only) ’ 1 U.S. Government Plaintiff ’ 3 Federal Question (U.S. Government Not a Party) ’ 2 U.S. Government Defendant ’ 4 Diversity (Indicate Citizenship of Parties in Item III) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) PTF Citizen of This State ’ 1 DEF ’ 1 and One Box for Defendant) PTF DEF Incorporated or Principal Place ’ 4 ’ 4 of Business In This State Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place of Business In Another State ’ 5 ’ 5 Citizen or Subject of a Foreign Country ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ TORTS 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property ’ ’ ’ ’ ’ ’ ’ PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education FORFEITURE/PENALTY PERSONAL INJURY ’ 365 Personal Injury Product Liability ’ 367 Health Care/ Pharmaceutical Personal Injury Product Liability ’ 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY ’ 370 Other Fraud ’ 371 Truth in Lending ’ 380 Other Personal Property Damage ’ 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: ’ 463 Alien Detainee ’ 510 Motions to Vacate Sentence ’ 530 General ’ 535 Death Penalty Other: ’ 540 Mandamus & Other ’ 550 Civil Rights ’ 555 Prison Condition ’ 560 Civil Detainee Conditions of Confinement ’ 625 Drug Related Seizure of Property 21 USC 881 ’ 690 Other BANKRUPTCY ’ 422 Appeal 28 USC 158 ’ 423 Withdrawal 28 USC 157 PROPERTY RIGHTS ’ 820 Copyrights ’ 830 Patent ’ 840 Trademark LABOR ’ 710 Fair Labor Standards Act ’ 720 Labor/Management Relations ’ 740 Railway Labor Act ’ 751 Family and Medical Leave Act ’ 790 Other Labor Litigation ’ 791 Employee Retirement Income Security Act ’ ’ ’ ’ ’ SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS ’ 870 Taxes (U.S. Plaintiff or Defendant) ’ 871 IRS—Third Party 26 USC 7609 IMMIGRATION ’ 462 Naturalization Application ’ 465 Other Immigration Actions OTHER STATUTES ’ 375 False Claims Act ’ 376 Qui Tam (31 USC 3729(a)) ’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and Corrupt Organizations ’ 480 Consumer Credit ’ 490 Cable/Sat TV ’ 850 Securities/Commodities/ Exchange ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 893 Environmental Matters ’ 895 Freedom of Information Act ’ 896 Arbitration ’ 899 Administrative Procedure Act/Review or Appeal of Agency Decision ’ 950 Constitutionality of State Statutes V. ORIGIN (Place an “X” in One Box Only) ’ 1 Original Proceeding ’ 2 Removed from State Court ’ 3 Remanded from Appellate Court ’ 4 Reinstated or Reopened ’ 5 Transferred from Another District (specify) ’ 6 Multidistrict Litigation Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 33 U.S.C. 1365 VI. CAUSE OF ACTION Brief description of cause: CITIZEN ENFORCEMENT ACTION UNDER THE CLEAN WATER ACT ’ CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER RULE 23, F.R.Cv.P. COMPLAINT: VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DATE CHECK YES only if demanded in complaint: ’ Yes ’ No JURY DEMAND: DEMAND $ DOCKET NUMBER SIGNATURE OF ATTORNEY OF RECORD /S/ J. MICHAEL BECHER 04/20/2016 FOR OFFICE USE ONLY RECEIPT # AMOUNT Print APPLYING IFP Save As... JUDGE MAG. JUDGE Reset IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA WEST VIRGINIA HIGHLANDS CONSERVANCY, WEST VIRGINIA RIVERS COALITION, and SIERRA CLUB Plaintiffs, v. CIVIL ACTION NO. ______________ RANDY C. HUFFMAN, Secretary, West Virginia Department of Environmental Protection Defendants. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION 1. This is a citizen’s suit for declaratory and injunctive relief against Randy Huffman, in his official capacity as the Secretary of the West Virginia Department of Environmental Protection (“WVDEP”), for violations of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (“Clean Water Act”) or (“CWA”) at two bond forfeiture sites in West Virginia. 2. As described below, Plaintiffs allege that Defendant has discharged and continues to discharge pollutants into waters of the United States in violation of Section 301 of the Clean Water Act, 33 U.S.C. § 1311, and the conditions of the West Virginia/National Pollutant Discharge Elimination System (“WV/NPDES”) Permits issued to the Defendant pursuant to Section 402 of the Clean Water Act. JURISDICTION AND VENUE 1 3. This Court has subject matter jurisdiction under Section 505(a) of the CWA, 33 U.S.C. § 1365(a). 4. On January 22, 2016, Plaintiffs gave notice of the violations and their intent to file suit to the Administrator of the U.S. Environmental Protection Agency (“EPA”) to the Regional Administrator of EPA’s Region III Office, and to Defendant as required by section 505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A). 5. More than 60 days have passed since notice was served and EPA has not commenced and is not diligently prosecuting a civil or criminal action to redress the violations. In addition, EPA did not commence an administrative civil penalty action under Section 309(g)(6) of the Act, 33 U.S.C. § 1319(g)(6), to redress the violations prior to the issuance of the January 22, 2016 notice letter. 6. Venue is appropriate in this District pursuant to Section 505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1) because the sources of the violations are located within this District in Nicholas County, West Virginia. PARTIES 7. Defendant Randy Huffman is the Secretary of the West Virginia Department of Environmental Protection. He is responsible for the agency’s compliance with the CWA and administers the EPA-approved WV/NPDES program under Section 402 of the CWA, 33 U.S.C. § 1342(b) and 46 C.S.R. series 10. He also has a mandatory, non-discretionary duty to utilize money from WVDEP’s Special Reclamation Fund to treat water pollution, specifically including acid mine drainage, at coal mining sites where reclamation bonds have been forfeited and the proceeds of those bonds are less than the actual costs of reclamation. 38 C.S.R. § 2-12.4.d; 67 Fed. Reg. 37612. 2 8. Plaintiff West Virginia Highlands Conservancy, Inc. (“WVHC”) is a nonprofit organization incorporated in West Virginia. It has approximately 1,500 members. It works for the conservation and wise management of West Virginia’s natural resources, and is one of West Virginia’s oldest environmental activist organizations. The West Virginia Highlands Conservancy is dedicated to protecting our clean air, clean water, forests, streams, mountains, and the health and welfare of the people who live here and for those who visit to recreate. 9. Plaintiff West Virginia Rivers Coalition makes its mission the conservation and restoration of West Virginia’s exceptional rivers and streams. It not only seeks preservation of high quality waters, but also the improvement of waters that should be of high quality. It has approximately 2,500 members. 10. Plaintiff Sierra Club is a nonprofit corporation incorporated in California, with more than 600,000 members and supporters nationwide, including approximately 2,000 members who reside in West Virginia and belong to its West Virginia Chapter. The Sierra Club is dedicated to exploring, enjoying and protecting wild places of the Earth; to practicing and promoting the responsible use of Earth’s resources and ecosystems; to educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives. The Sierra Club’s concerns encompass the exploration, enjoyment and protection of surface water in West Virginia. 11. Plaintiffs have members, including James Tawney, who use, enjoy, and benefit from the water quality on Lilly Branch, Libertybowl Branch, Twentymile Creek, Buffalo Creek, and the Elk and Gauley Rivers. They would like to recreate in areas downstream from the portion of streams into which Defendant discharges pollutants harmful to aquatic life, including iron, acidity (measured as pH), nitrogen ammonia, and suspended solids. Excessive amounts of 3 these pollutants degrade the water quality of these streams and make the water aesthetically and environmentally undesirable and also impair their suitability for aquatic life. Because of this pollution, Plaintiffs’ members refrain from and/or restrict their usage of these streams and the associated natural resources. As a result, the environmental, health, aesthetic, and recreational interests of these members are adversely affected by Defendant’s excessive discharges of these and other pollutants. If Defendant’s unlawful discharges ceased, the harm to the interests of Plaintiffs’ members would be redressed. Injunctions would redress Plaintiffs’ members’ injuries by preventing and/or deterring future violations of the limits of Defendant’s permits. 12. At all relevant times, Plaintiffs were and are “persons” as that term is defined by the CWA, 33 U.S.C. § 1362(5). STATUTORY AND REGULATORY FRAMEWORK 13. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the “discharge of any pollutant by any person” into waters of the United States, except in compliance with the terms of a permit, such as a NPDES permit issued by EPA, or an authorized state pursuant to Section 402 of the CWA, 33 U.S.C. § 1342. 14. Section 402(a) of the CWA, 33 U.S.C. § 1342(a), provides that the permit-issuing authority may issue a NPDES permit that authorizes the discharge of any pollutant directly into waters of the United States, upon the condition that such discharge will meet all applicable requirements of the CWA, and such other conditions as the permitting authority determines necessary to carry out the provisions of the CWA. 15. The Administrator of EPA authorized WVDEP, pursuant to Section 402(a)(2) of the Act, 33 U.S.C. § 1342(a)(2), to issue NPDES permits on May 10, 1982. 47 Fed. Reg. 22363. 4 The applicable law for issuing NPDES permits in West Virginia is the Water Pollution Control Act, W.Va. Code § 22-11-1, et seq. 16. Section 505(a) of the CWA, 33 U.S.C. § 1365(a) authorizes any “citizen” to “commence a civil action on his own behalf . . . against any person . . . who is alleged to be in violation of . . . an effluent standard or limitation under this chapter.” 17. Section 505(f) of the CWA, 33 U.S.C. § 1365(f), defines and “effluent standard or limitation under this chapter,” for purposes of the citizen suit provision of section 505(a) of the CWA, 33 U.S.C. § 1365(a), to mean, among other things, an unlawful act under Section 301(a), 33 U.S.C. § 1311(a), of the CWA and “a permit or condition thereof issued” under Section 402, 33 U.S.C. § 1342, of the CWA. 18. Pursuant to Section 505(d) of the CWA, 33 U.S.C. § 1365(d), the court “may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such an award is appropriate.” FACTS 19. Defendant has operational responsibility to treat discharges of acid mine drainage at bond forfeiture sites where reclamation of mined areas has not been completed. 20. Defendant holds NPDES permits on the following bond forfeiture sites: WV/NPDES Effective No. Date WV1027841 2/27/14 WV1027823 21. 2/27/15 Site County Receiving Waters/Watershed Chicopee Coal Nicholas Summersville 5 Block Nicholas Big HI/Lilly Branch/ Twentymile Creek/Gauley River Libertybowl Branch/Buffalo Creek/Elk River The NPDES permit for each site limits the amount and concentration of pollutants that Defendant may discharge from its operations into each receiving stream. 5 22. The following table identifies the data and nature of each violation, self-reported by the Defendant at each of these sites: eDMR # 21815 21815 21815 21815 21815 21816 21816 21816 21816 21816 22062 22062 22062 22062 22062 23188 23188 23188 23188 23287 23287 23287 23287 23287 24042 24042 24042 24042 24042 24761 24761 24761 24761 24761 24762 24762 24762 Month NPDES # 4/1/2015 4/1/2015 4/1/2015 4/1/2015 4/1/2015 5/1/2015 5/1/2015 5/1/2015 5/1/2015 5/1/2015 6/1/2015 6/1/2015 6/1/2015 6/1/2015 6/1/2015 7/1/2015 7/1/2015 7/1/2015 7/1/2015 8/1/2015 8/1/2015 8/1/2015 8/1/2015 8/1/2015 9/1/2015 9/1/2015 9/1/2015 9/1/2015 9/1/2015 10/1/2015 10/1/2015 10/1/2015 10/1/2015 10/1/2015 11/1/2015 11/1/2015 11/1/2015 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 WV1027841 Facility Outlet Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal Chicopee Coal 6 2 5 7 9 12 2 5 7 9 12 1 2 5 7 9 2 5 7 9 4 5 7 9 12 4 5 7 9 12 4 5 7 9 12 5 7 9 Parameter pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH pH Result Units Limit Type 5.5 4.6 4.6 4.6 5.3 5.2 5.4 4.6 4.7 5.4 4.3 4.4 4.6 4.4 4.6 5.7 5.7 4.7 4.6 5.4 4.4 4.3 4.3 5.8 5.3 3.7 3.6 3.8 5.2 4.2 3.5 3.7 3.4 5.3 4.29 3.47 5.36 SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU SU 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min Min 21799 4/1/2015 WV1028723 21799 4/1/2015 WV1028723 21800 5/1/2015 WV1028723 21800 5/1/2015 WV1028723 22052 6/1/2015 WV1028723 22052 6/1/2015 WV1028723 23174 7/1/2015 WV1028723 23174 7/1/2015 WV1028723 23282 8/1/2015 WV1028723 23282 8/1/2015 WV1028723 24009 9/1/2015 WV1028723 24009 9/1/2015 WV1028723 24716 10/1/2015 24716 10/1/2015 WV1028723 WV1028723 WV1028723 24717 11/1/2015 24717 11/1/2015 WV1028723 Al Avg Fe Max N Am SS SU Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block Summersville 5 Block 1 pH 4.4 SU 6 Min 3 pH 4.8 SU 6 Min 1 pH 4.4 SU 6 Min 3 pH 4.6 SU 6 Min 1 pH 4.6 SU 6 Min 3 pH 4.6 SU 6 Min 1 pH 4.4 SU 6 Min 3 pH 5.3 SU 6 Min 1 pH 3.8 SU 6 Min 3 pH 3.9 SU 6 Min 1 pH 3.3 SU 6 Min 3 pH 3.4 SU 6 Min 1 pH 3.25 SU 6 Min 3 pH 3.48 SU 6 Min 1 pH 3.25 SU 6 Min 3 pH 3.79 SU 6 Min Aluminum Monthly Average Iron Daily Maximum Nitrogen, Ammonia Suspended Solids Standard Units FIRST CLAIM FOR RELIEF 23. Plaintiffs incorporate by reference all allegations included in paragraphs 1 through 22 supra. 7 24. Defendant’s wastewater discharges identified in the above paragraphs are discharges from a point source or sources into navigable waters of the United States within the meaning of Section 301 of the Clean Water Act, which prohibits the discharge of any pollutant by any person, except in compliance with a permit. 33 U.S.C. § 1311. 25. The pollution limits within the Defendant’s permits are “effluent standards or limitations” for purposes of Section 505(a)(1) of the Clean Water Act because they are conditions of a permit issued under Section 402 of the Act. 33 U.S.C. § 1365(f). 26. Each and every discharge in excess of the effluent limitations in Defendant’s NPDES permits is actionable under Section 505(a)(1) of the Clean Water Act. 33 U.S.C. § 1365(a)(1). 27. A violation of an average monthly effluent violation is considered to be a violation on each and every day of that month. 28. Unless enjoined, the Defendant will remain in continuing violation of the CWA. 29. On information and belief, Plaintiffs allege that Defendant is in continuing and/or intermittent violation of the CWA as a result of its violations of effluent limitations in its NPDES permits because Defendant has taken no meaningful action to eradicate the underlying causes of the violations. RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court enter an Order: 1. Declaring that Defendant has violated and continues to violate the CWA; 2. Enjoining Defendant from operating its facilities in such a manner as will result in further violations of the effluent limitations in its NPDES permits; 8 3. Ordering Defendant to immediately comply with conditions and effluent limitations within its permits; 4. Awarding Plaintiffs their attorney and expert witness fees and all other reasonable expenses incurred in pursuit of this action; and 5. Granting other such relief as the Court deems just and appropriate. DATED: APRIL 20, 2016 Respectfully submitted, /s/ J. Michael Becher J. MICHAEL BECHER (W. Va. Bar No. 10588) JOSEPH M. LOVETT (W. Va. Bar No. 6926) Appalachian Mountain Advocates PO Box 507 Lewisburg, WV 24901 (304) 382-4798 Counsel for Plaintiffs 9