Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 1 of 29 PageID #: 944

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
OHIO VALLEY ENVIRONMENTAL COALITION,
WEST VIRGINIA HIGHLANDS CONSERVANCY,
APPALACHIAN VOICES, and
THE SIERRA CLUB
Plaintiffs,
v.

CIVIL ACTION NO. 1:19-00576

BLUESTONE COAL CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant Bluestone Coal
Corporation’s motion to dismiss.

(ECF No. 8.)

For the reasons

that follow, the motion to dismiss is DENIED.
I.

Background
A. The 2016 Consent Decree
On September 30, 2016, the United States filed a complaint

and proposed Consent Decree against Southern Coal Corporation
(“SCC”). 1

See United States v. Southern Coal Corp., No. 7:16-cv-

00462 (W.D. Va. 2016); (ECF No. 11, Ex. A (complaint); id. Ex. B

Although defendant Bluestone Coal Corporation is not named as a
party-defendant in the Consent Decree as filed, it subsequently
became subject to the full scope of the Consent Decree because
Bluestone Coal Corporation is a subsidiary of Bluestone
Resources, Inc, which is a subsidiary of SCC. (ECF No. 9.)
1

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 2 of 29 PageID #: 945

(notice of consent decree).)

There followed public notice of

the settlement by publication in the Federal Register for a
thirty-day period for public comment.

(See ECF No. 8, Ex. 3.)

The only comment on the proposed Consent Decree was submitted by
Appalachian Mountain Advocates, on behalf of environmental
advocacy groups including plaintiffs in this action, and the
comment asked DOJ counsel to "confirm" that the proposed Consent
Decree "does not preclude any citizen suit" against SCC for
Clean Water Act (“CWA”) violations not released by the Consent
Decree.

(See id. Ex. 4.)

The DOJ, in its “Memorandum in

Support of Its Unopposed Motion to Enter the Consent Decree,”
responded that
[T]he Decree does not limit the rights of third
parties ‘except as otherwise provided by law’ . . . .
Whether or not future citizen suits are precluded by
some legal doctrine outside of the Consent Decree is a
determination most appropriately made by the court in
which the citizen suit is filed, based on . . .
whether Defendants are in compliance with the law or
the Consent Decree at the time of a future suit and
the actions of EPA and the States in response to any
non-compliance.
(Id. Ex. 5 (internal citations omitted).)
In its motion supporting entry of the Consent Decree, the
United States also summarized the terms of the Consent Decree,
maintained that the Consent Decree is "fair, adequate,
reasonable and in the public interest," and stated that "the
2

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 3 of 29 PageID #: 946

settlement process was fair and well informed" and "designed to
achieve CWA compliance" which "will provide widespread
environmental benefit."

(Id. Ex. 5.)

The United States argued

that the Consent Decree "is forward-looking, [and] contains
multiple frameworks for bringing defendants into compliance."
(Id. Ex. 5.)

The government's motion was also supported by the

"Declaration of Laurie E. Ireland," an EPA official.
Ex. 6.)

(See id.

Ms. Ireland stated that since negotiations began in

late 2014, "there have been notable improvements in Defendants'
compliance record,” that the EPA will closely monitor
defendants' performance, and that there are "many mechanisms
provided under the Decree" to continue enforcement compliance.
(Id. Ex. 6.)

The U.S. District Court for the Western District

of Virginia entered the Consent Decree as a final judgment on
December 19, 2016.

(Id. Ex. 1.)

The Consent Decree is in effect until an indefinite date;
from December 19, 2016 until such time as EPA and the states
conclude that the goals of the Consent Decree have been met by
SCC.

(See id. Ex. 1 ¶¶ 1137-39.)

The Consent Decree applies to

all "facilities" and "future facilities" of SCC; that is, all
coal mining sites owned, operated or permitted by SCC, including
the Red Fox Surface Mine.

(Id. Ex. 1 ¶¶ 7, 14.dd, 14.gg; see

also supra note 1.)
3

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 4 of 29 PageID #: 947

The Consent Decree required SCC:

to develop and implement

an environmental management system (“EMS”), (id. Ex. 1 ¶¶ 13438), an internal corporate system, and a compliance database,
(id. Ex. 1 ¶¶ 148-57); to conduct audits of the EMS, (id. Ex. 1
¶¶ 139-42); and to develop and implement pond protocols,
protocols for sampling, testing, and reporting, outlet sampling
and verification, and certified violation reporting, corrective
measures, and violation response procedures.
47.)

(Id. Ex. 1 ¶¶ 144-

SCC was required to retain independent third-party

consultants to audit and report to the company and EPA.

The

consultants and their qualifications were specified, (id. Ex. 1
¶¶ 130, 31, 34, 36, 40, 42, 57), and they could be retained or
replaced only with EPA's approval.

The Consent Decree requires

training programs for company personnel.

(Id. Ex. 1 ¶¶ 160-62.)

Reporting requirements are a major component of the Consent
Decree.

SCC is obligated to file quarterly reports listing

violations of their National Pollution Discharge Elimination
System (“NPDES”) and Surface Mining Control and Reclamation Act
(“SMCRA”) permits, violations of the Consent Decree, and the
company's responses to violations.
101.)

(Id. Ex. 1 ¶¶ 175-83; 84-

SCC has submitted quarterly reports for all quarters

through the time the motion to dismiss was filed.
9.)
4

(See ECF No.

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 5 of 29 PageID #: 948

The Consent Decree sets forth a scheme of escalating
stipulated penalties for violations, including but not limited
to, violations for effluent limit exceedances (daily, monthly or
quarterly, as required by permits), failures to sample,
reporting violations, non-compliance with terms of the Consent
Decree, and for persistent non-compliance.
1 ¶¶ 84-96.)

(See ECF No. 8, Ex.

SCC must calculate stipulated penalties for

violations, which are then included in the quarterly reports,
and which must be paid by the date the quarterly reports are
submitted.

However, the Consent Decree sets those penalties as

a non-exclusive remedy that would qualify for an offset against
any statutory penalties that were subsequently assessed.
Ex. 1 ¶¶ 84–102.)

(Id.

The Consent Decree states that “[s]tipulated

penalties are not the United States’ or the States’ exclusive
remedy for violations of this Consent Decree,” and the United
States and the States “expressly reserve the right to seek”
additional relief for future violations of the law, “including .
. . statutory penalties [and] additional injunctive relief.”
(Id. Ex. 1 ¶ 102.)

Additionally, the Consent Decree contained a

provision that “[t]his Consent Decree does not . . . limit the
rights of third parties, not party to this Consent Decree,
against Defendants, except as otherwise provided by law.”
Ex. 1 ¶ 128.)
5

(Id.

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 6 of 29 PageID #: 949

B. Red Fox Mine Violations in the 2016 Consent Decree
The 2016 Consent Decree only adjudicated and prosecuted the
violations of permit limitations identified in Appendix F.

(Id.

Ex. 1 ¶ 122; see also ECF No. 11, Ex. C (relevant excerpts of
Appendix F).)

Identified within Appendix F were a set of

violations of West Virginia NPDES Permit No. WV1006304 at
Defendant’s Red Fox Surface Mine.

(ECF No. 11, Ex. C.)

Those

violations occurred between April 2011 and June 2015, and
included some violations of specific permit limitations at Red
Fox Mine Outlets 001-008, 020, and 046, but the Consent Decree
did not list or include any violations of the permit limitations
for selenium at Outlets 005-008.

(See id.)

At the time the Consent Decree was entered, defendant’s
WV/NPDES Permit No. WV1006304 did not contain a numerical
effluent limit for selenium at Outlets 005-008.
E.)

(See id. Ex.

Instead, the permit only contained a compliance schedule

for selenium at those outlets.

(See id. Ex. E.)

That schedule

was imposed in a permit modification that the West Virginia
Department of Environmental Protection (“WVDEP”) issued on June
21, 2016.

(Id. Ex. E.)

Under that modification, defendant had

to monitor and report the selenium concentration at those
outlets until June 22, 2018, but on and after June 22, 2018,

6

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 7 of 29 PageID #: 950

defendant’s discharges at Outlets 005-008 had to comply with
numerical effluent limits for selenium. 2

(See id. Ex. E.)

C. Plaintiffs’ Complaint and The Alleged Permit Violations
On August 6, 2019, the Ohio Valley Environmental Coalition,
West Virginia Highlands Conservancy, Appalachian Voices, and the
Sierra Club, (collectively “plaintiffs”), filed the instant
Complaint against defendant pursuant to the citizen suit
provisions of the CWA, 33 U.S.C. §§ 1251 et seq., and SMCRA, 30
U.S.C. §§ 1270 et seq.

According to the Complaint, the

allegations of which are taken as true for purposes of the
motion to dismiss, defendant has discharged pollutants from
Outlets 005-008 at its Red Fox Surface Mine in violation of its
CWA discharge permit and SMCRA mining permit.

The effluent

limit violations alleged in the Complaint occurred on specified
dates between July 2018 and June 2019, and thus occurred after
defendant’s discharges at Outlets 005-008 had to comply with the
numerical limits.

(See ECF No. 1, app. A; supra note 2.)

The Red Fox Mine operates under WV/NPDES Permit WV1006304
and WV/SMCRA Permit S007282.

(See ECF No. 9, Ex. 2.)

The

exceedances that are the subject of this suit were discharged
from outfalls 005-008, which were subject to the above-listed
Those limits are a monthly average of 4.7 μg/l and a daily
maximum of 8.2 μg/l. (Id. Ex. E.)
2

7

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 8 of 29 PageID #: 951

WV/NPDES Permit.

(Id. Ex. 2.)

Defendant admits that that

discharges listed in the Complaint exceeded permitted levels for
selenium discharge.

(Id.; see also ECF No. 1.)

The permit

exceedances were reported by defendant to the WVDEP by the
company's routine filing of discharge monitoring reports, as
required by the company's NPDES permit, issued by WVDEP.
ECF No. 9.)

(See

Defendant also reported the exceedances to the

United States Environmental Protection Agency (EPA), the United
States Department of Justice (DOJ), and the United States
Department of Interior, Office of Surface Mining Reclamation and
Enforcement (OSMRE), in accordance with the Consent Decree.
(Id.)
According to Bluestone’s quarterly reports filed with the
various agencies pursuant to the Consent Decree, Bluestone has
reported 42 violations of its average selenium limits and 65
violations of its maximum selenium limits at Outlets 005-008
since July 2018.

(ECF No. 11, Ex. F.)

Defendant, through SCC,

has paid approximately $278,000 in stipulated penalties for
those selenium effluent violations at Red Fox Mine occurring
from July 2018 to June 30, 2019.

(ECF No. 9.) 3

However,

Defendant states it has also paid additional stipulated
penalties for violations occurring after June 30, 2019. (ECF
No. 57.)
3

8

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 9 of 29 PageID #: 952

defendant reported that it paid no stipulated penalties for
thirty-one violations of the maximum selenium limits at those
Outlets.

(See ECF No. 11, Ex. F.)

Additionally, if defendant’s

violations are not covered by the stipulated penalties of the
Consent Decree, its 107 total violations would be subject to a
maximum CWA statutory civil penalty of $73,256,888.

(See id.

Ex. G.)
Plantiffs’ suit seeks declaratory and injunctive relief as
well as civil penalties against defendant for these selenium
limit violations at Outlets 005-008 at the Red Fox Surface Mine.
(ECF No. 1.)

On June 4, 2019, plaintiffs mailed notice of the

violations and their intent to file suit in letters addressed to
defendant, the EPA, OSMRE, and the WVDEP, as required by §
505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A), and §
520(b)(1)(A) of SMCRA, 30 U.S.C. § 1270(b)(1)(A).

After waiting

the required sixty days, during which neither the EPA, OSMRE,
and/or the WVDEP commenced an action to redress the alleged
violations, plaintiffs filed suit before this court.
D. Defendant’s Motion and Responses
Defendant filed a motion to dismiss on September 25, 2019,
arguing that plaintiff’s suit was precluded by the Consent
Decree and any action by this court would create undue
interference with the Consent Decree.
9

(See ECF No. 9.)

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 10 of 29 PageID #: 953

Defendant argues this action is precluded because the Consent
Decree is a final judgment that remains in effect, and because
the EPA has been diligently prosecuting the Consent Decree.
(Id.)

Furthermore, defendant claims that it is exploring ways

to correct the selenium problem at the Red Fox Mine.

(Id.)

Defendant also adds that plaintiffs do not have standing to
pursue this claim, as their claims are not redressable in this
suit but only redressable pursuant to the Consent Decree before
the U.S. District Court in Virginia where the Consent Decree was
entered.

(Id.)

Plaintiffs filed a Response, arguing that their claims are
not precluded by the Consent Decree for three reasons: (1) the
Consent Decree does not require compliance with the permit
limits plaintiffs are seeking to enforce; (2) the government’s
prosecution of the Consent Decree was not pending or ongoing at
the time plaintiffs filed this case; and (3) the Consent Decree
is not being diligently prosecuted.

(See ECF No. 11.)

Plaintiffs also argue that a prior case in this very district,
Ohio Valley Environmental Coalition, Inc. v. Independence Coal
Company, 2011 WL 1984523 (S.D.W. Va. May 20, 2011), is directly
on point as to why their suit is not precluded.
As to the standing issue, plaintiffs respond by explaining
that the success of defendant’s redressability argument hinges
10

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 11 of 29 PageID #: 954

on whether plaintiffs’ suit is precluded by the Consent Decree.
(Id.)

If the Consent Decree does preclude the instant action,

then the issue of standing is mooted.

(Id.)

But if the Consent

Decree does not preclude the instant action, plaintiffs argue
that they can obtain redress through the court issuing
additional civil penalties, up to the statutory maximum, for
violations alleged in the Complaint even though the violations
are subject to stipulated penalties in the Consent Decree.
(Id.)

There have been violations that have not resulted in any

penalty payment, and issuing penalties for these violations
would provide redress of plaintiffs’ injuries.

(Id.)

Lastly,

plaintiffs make the additional argument that this court may
elect to defer its ruling on the motion to dismiss in order to
allow discovery on the fact-based question of whether the
Consent Decree has or has not been diligently prosecuted.

(Id.)

Defendant countered in its Reply that the opinion in
Independence is inapposite, as the Consent Decree here does
require compliance with the permit limits plaintiffs are seeking
to enforce because the Consent Decree requires compliance with
the terms of all permits issued while the Consent Decree is in
effect – the permit at Red Fox is covered as a future permit at
a future facility, as defined by the Consent Decree.
No. 14.)

(See ECF

Defendant also responds that the Consent Decree is
11

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 12 of 29 PageID #: 955

forward-looking and ongoing, as it was designed to and is in the
process of enforcing compliance.

(Id.)

Defendant further

contends that the Consent Decree is being diligently prosecuted,
as defendant has paid approximately $278,000 in penalties for
the selenium violations alleged by plaintiffs.

(Id.)

Defendant

did not make any additional arguments on the standing issue, but
did argue that this court need not wait for discovery to rule on
its motion to dismiss because the government’s diligent
prosecution is demonstrated as a matter of law by the papers
presently before the court.
II.

(Id.)

Standard of Review for Motion to Dismiss
“[A] motion to dismiss for failure to state a claim for

relief should not be granted unless it appears to a certainty
that the plaintiff would be entitled to no relief under any
state of facts which could be proved in support of his claim."
Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th
Cir. 1989) (citation omitted) (quoting Conley v. Gibson, 355
U.S. 41, 48 (1957) and Johnson v. Mueller, 415 F.2d 354, 355
(4th Cir. 1969)).

"In considering a motion to dismiss, the

court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff."

Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130,

12

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 13 of 29 PageID #: 956

1134 (4th Cir. 1993); see also Ibarra v. United States, 120 F.3d
474, 474 (4th Cir. 1997).
In evaluating the sufficiency of a pleading, the cases of
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), provide guidance.

When reviewing a

motion to dismiss, under Federal Rule of Civil Procedure
12(b)(6), for failure to state a claim upon which relief may be
granted, a court must determine whether the factual allegations
contained in the complaint “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests,”
and, when accepted as true, “raise a right to relief above the
speculative level.”

Twombly, 550 U.S. at 555 (quoting Conley v.

Gibson, 355 U.S. 41, 47 (1957) and 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed.
2004)).

“[O]nce a claim has been stated adequately, it may be

supported by showing any set of facts consistent with the
allegations in the complaint.”

Twombly, 550 U.S. at 563.

As

the Fourth Circuit has explained, “to withstand a motion to
dismiss, a complaint must allege ‘enough facts to state a claim
to relief that is plausible on its face.’”

Painter’s Mill

Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013) (quoting
Twombly, 550 U.S. at 570).

13

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 14 of 29 PageID #: 957

When considering a 12(b)(6) motion, a court must accept all
of the complaint’s factual allegations as true and draw all
reasonable inferences therefrom in favor of the plaintiff.

See

Kensington Volunteer Fire Dep't, Inc. v. Montgomery Cnty., Md.,
684 F.3d 462, 467 (4th Cir. 2012).
The court may consider the 2016 Consent Decree and WV/NPDES
permit WV1006304.

“Without converting a motion to dismiss into

a motion for summary judgment, a court may consider documents
that are attached to the complaint,” as well as “documents
extrinsic to the complaint if they are ‘integral to and
explicitly relied on in the complaint’ and if there is no
dispute as to their authenticity.”

Tinsley v. OneWest Bank,

FSB, 4 F. Supp. 3d 805, 819 (S.D.W. Va. 2014) (quoting Robinson
v. Am. Honda Motor Co., 551 F.3d 218, 222–23 (4th Cir. 2009)).
The Consent Decree and WV/NPDES permit WV1006304 were referenced
in the Complaint and were attached in full to defendant's motion
to dismiss.

It is clear that review of the Consent Decree and

permit WV1006304’s terms is integral to proper consideration and
resolution of plaintiffs’ claims and defendant’s defenses.
Moreover, the Consent Decree and permit WV1006304 are public
records, and the Consent Decree is a court decision and a final
judgment.

They are undisputedly authentic and neither party has

questioned their authenticity.
14

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 15 of 29 PageID #: 958

III. Diligent Prosecution Standard
Under the CWA, a citizen may file a suit “against any
person . . . who is alleged to be in violation of an effluent
standard or limitation under this chapter or an order issued by
the Administrator or a State with respect to such a standard or
limitation.”

33 U.S.C. § 1365(a).

“Effluent standard or

limitation” is further defined to include, inter alia, those
standards established pursuant to § 1311 and “a permit or
condition . . . issued under § 1342.”

Id. § 1365(f).

suits are, however, subject to several limitations.

Citizen
Relevant to

this case is the statutory bar to citizen suits where “the
Administrator or State has commenced and is diligently
prosecuting a civil or criminal action . . . to require
compliance with the standard, limitation, or order” at issue in
the citizen suit.

Id. § 1365(b)(1)(B).

When there is a concurrent government action addressing the
standard or limitation at issue in a citizen suit, plaintiffs
bear the burden of proving the government prosecution is not
diligent.

Piney Run Pres. Ass'n v. Cty. Comm’rs of Carroll

Cty., Md., 523 F.3d 453, 459 (4th Cir. 2008).
prosecution is presumed to be diligent.

The government

See id.

The government

prosecution also need not be “far-reaching or zealous. . . .
Nor must an agency's prosecutorial strategy coincide with that
15

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 16 of 29 PageID #: 959

of the citizen-plaintiff.”
(10th Cir. 2007).

Karr v. Hefner, 475 F.3d 1192, 1196

However, the deference owed is not unlimited:

“a diligent prosecution analysis requires more than mere
acceptance at face value of the potentially self-serving
statements of a [government] agency and the violator.”

Friends

of Milwaukee's Rivers v. Milwaukee Metro. Sewerage Dist., 382
F.3d 743, 760 (7th Cir. 2004).
Nonetheless, the standard for plaintiffs to meet their
burden and show that the government has failed to diligently
prosecute an alleged violation is a high standard.
759; see also Karr, 475 F.3d at 1198.

See id. at

This is due to the

important, yet limited, role of citizens in enforcing the CWA.
Citizen suits are an element of Congress’s strategy for
enforcing the CWA, but private intervenors are meant to
“supplement rather than to supplant” public litigation.
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484
U.S. 49, 60 (1987).

Otherwise, the government’s ability to

reach voluntary settlements with defendants would be severely
undermined, as defendants would have little incentive to settle
disputes with the government if they remained open to unlimited
citizen suits despite settling.

See Piney Run, 523 F.3d at 459;

United States v. Metro. Water Reclamation Dist. of Greater
Chicago, 792 F.3d 821, 824–25 (7th Cir. 2015).
16

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 17 of 29 PageID #: 960

Therefore, to meet its burden, a citizen-plaintiff must do
more than show an agency's strategy is less aggressive than that
which would be pursued by the citizen.

Plaintiffs must show

that the government action is not capable of requiring
compliance or was not in good faith calculated to do so.

See

Piney Run, 523 F.3d at 460; see also Envtl. Conservation Org. v.
City of Dallas, 529 F.3d 519, 528–29 (5th Cir. 2008) (A nondiligent prosecution may be shown “[i]f a citizen-suit plaintiff
demonstrates that there is a realistic prospect that the
violations alleged in its complaint will continue
notwithstanding the government-backed consent decree”).
Essentially, a plaintiff must provide a set of facts
demonstrating that the defendant will continue to engage in
violations that were not satisfactorily addressed by a consent
decree.
IV.

See City of Dallas, 529 F.3d at 529.

Analysis: The Consent Decree Does Not Preclude Plaintiffs’
Suit
A. The Consent Decree was not designed to require
compliance with the permit limits plaintiffs are
seeking to enforce
The Consent Decree “in no way affects or relieves

[defendant] of [its] responsibility to comply with applicable
. . . permits.”

(ECF No. 8, Ex. 1 ¶¶ 7, 21.)
17

Additionally, the

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 18 of 29 PageID #: 961

Consent Decree is forward-looking, as it prospectively provides
for stipulated penalties in case of future violations.
¶¶ 88-89.)

(See id.

Therefore, the court finds that the Consent Decree

was pending and ongoing on the date that plaintiffs filed their
suit.

However, plaintiffs’ suit is not precluded if the

prosecution was not diligent as to these violations because the
Consent Decree was not designed to require compliance with the
permit violations at issue in plaintiffs’ Complaint.

See Piney

Run, 523 F.3d at 460.
The violations in the Complaint occurred at Outlets that
were not addressed by the Consent Decree:

Appendix F to the

Consent Decree did not include any violations of the permit
limitations for selenium at Outlets 005-008, which are the
violations that form the basis of plaintiffs’ suit.
No. 11, Ex. C.)

(See ECF

Additionally, the permit regulating Outlets

005-008 did not contain any numeric effluent limits at the time
the Consent Decree became a final judgment.

(See id. Ex. E.)

Instead, the permit only contained a compliance schedule for
selenium at those outlets, and it was only on and after June 22,
2018, that defendant’s discharges at Outlets 005-008 had to
comply with numerical effluent limits for selenium.

(See id.)

Thus, plaintiffs are suing a defendant subject to an active
consent decree for violations of effluent limits that did not
18

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 19 of 29 PageID #: 962

exist at the time the Consent Decree was made final and were not
specifically addressed by that Consent Decree.
This court faced a nearly identical scenario in
Independence.

See Ohio Valley Envtl. Coal., Inc. v. Indep. Coal

Co., 2011 WL 1984523 (S.D.W. Va. May 20, 2011).

There, like

here, plaintiffs sued a defendant subject to an active consent
decree for violations of effluent limits that did not exist and
were not specifically addressed by a consent decree.

See id.

Like the Consent Decree here, the consent decree in Independence
“prospectively provided for stipulated penalties in case of
future violations,” id. at *2, and applied to “all pollutants .
. . regulated under effluent limits contained in Defendants'
NPDES permits.”

Id. at *3.

Thus, the defendant in Independence

made the same argument as the defendant here, claiming that any
future violations of future permits “are encompassed by the
relief provided by the Consent Decree and, accordingly,
Plaintiffs’ action is barred” because the consent decree’s
stipulated penalties for any future violations constitutes
diligent prosecution. 4

Id. at *3-4.

Importantly, the consent decree in Independence also contained
an identical provision reserving certain rights to third parties
as the Consent Decree in this case: both consent decrees stated
that “[t]his Consent Decree does not . . . limit the rights of
third parties, not party to this Consent Decree, against
Defendants, except as otherwise provided by law.” (ECF No. 8,
4

19

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 20 of 29 PageID #: 963

That argument is just as unpersuasive here as it was to
this court in Independence.

“The claim-preclusive effect of a

consent judgment may reach beyond the claims that were
specifically asserted—so long as the parties clearly intended
that result.”

Citizens Legal Envtl. Action Network, Inc. v.

Premium Standard Farms, Inc., 2000 WL 220464, at *7 (W.D. Mo.
Feb. 23, 2000).

Here, there is no evidence that the parties

clearly intended for the Consent Decree to require compliance
with the future selenium effluent limits.

This court in

Independence put it well when it explained that
While the Consent Decree does provide prospective
injunctive relief in the event of future violations of
the WV/NPDES permits, the Court cannot imagine how the
Consent Decree was, in good faith, calculated to
achieve compliance with the selenium effluent
limitations. The Court is not implying that the
parties . . . colluded to allow Defendants to avoid
compliance with these limits. [But at] the time the
complaint . . . was filed, May 10, 2007, the selenium
limits were not in effect. . . . Accordingly, the
effect of the Consent Decree on future violations of
the selenium effluent limitations could not have been
more than a speculative consideration of the EPA . . .
at the time the Consent Decree was negotiated and
lodged with the court.
2011 WL 1984523, at *6 (citations omitted).
Ex. 1 ¶ 128.) This provision does not displace the CWA’s limits
on citizen suits when there is ongoing diligent prosecution, but
it also makes clear that citizen suits shall not be barred when
plaintiffs can demonstrate a lack of diligent prosecution. See
Independence, 2011 WL 1984523, at *5.
20

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 21 of 29 PageID #: 964

B. The violations alleged are separate and distinct
from violations addressed by the Consent Decree
To defeat a claim preclusion defense, the new wrong cannot
be related in origin to the pre-settlement violations.

See

Friends of Milwaukee's River v. Milwaukee Metropolitan Sewerage
Dist., 382 F.3d 743, 758 (7th Cir. 2004); see also N. California
River Watch v. Redwood Oil Co., 2008 WL 4601016, at *6 (N.D.
Cal. Oct. 15, 2008) (“If plaintiff can sufficiently allege [that
a violation] is from a new source that was not covered by the
consent decree, then that complaint would not be barred by res
judicata.”).

Plaintiffs allege selenium effluent violations of

NPDES Permit WV1006304 at Outlets 005-008; of the 103 alleged
violations of NPDES Permit WV1006304 in Appendix F of the
Consent Decree, zero involved selenium violations at Outlets
005-008, and only two involved selenium violations at all.
ECF No. 11, Ex. C.)

(See

Plaintiff’s claims are not related in

origin and are separate and distinct from the violations in the
Consent Decree, and thus the element of res judicata requiring
an identity of causes of action is not met here.

Cf. Friends of

Milwaukee's River, 382 F.3d at 758 (finding the opposite – that
plaintiffs’ claims were barred by res judicata – because the
alleged violations had the “same factual basis” as the
violations in the consent decree).
21

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 22 of 29 PageID #: 965

C. The court is not convinced that the Consent Decree
will ensure defendants comply with its permit limits
Additionally, this court finds that like in Independence,
the Consent Decree could not have been in good faith calculated
to achieve compliance with the violations that plaintiff raises.
The Consent Decree contains provisions about reporting
requirements and the need to “implement treatment measures” when
violations are detected until compliance is achieved.
No. 8, Ex. 1 ¶¶ 47-62.)

(See ECF

However, just as in Independence, these

provisions are insufficient in light of the “extreme difficulty”
coal companies have had in complying with selenium effluent
limitations, 5 and in light of the fact that the Consent Decree
requires less than defendant’s WVDEP selenium permits themselves
require.

2011 WL 1984523, at *6.

At the time of the Consent

On this point of the difficulty selenium poses and the general
failure to comply with selenium limits, see Robert G. McLusky &
Blair M. Gardner, Selenium Issues in the Coal Industry, 30 ENERGY
& MIN. L. INST. 6, 222 (2009) (“WVU’s literature review also
confirmed that there were no easy solutions for treating
existing sources of selenium. . . . [E]xisting techniques were
unable to achieve reductions to 5 ug/l, required large amounts
of power, were very expensive, or suffered from other potential
reliability or regulatory issues”); Sarah J. Surber, Writing a
Check That the State Can't Cash: Water Pollution from Coal
Mining and the Imminent and Inevitable Failure of the West
Virginia Special Reclamation Water Fund, 27 TUL. ENVTL. L.J. 1, 20
(2013) (“WVDMR continued to issue MTR NPDES permits, knowing
that mining companies would discharge illegal quantities of
selenium and that sites were not installing selenium treatment
technology.”).
5

22

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 23 of 29 PageID #: 966

Decree’s filing or entry, defendant’s WV/NPDES permit WV1006304
did not yet require compliance with specific selenium effluent
limits, but instead contained a schedule of compliance for
selenium discharges.

(ECF No. 11, Ex. E.)

This schedule of

compliance required that defendant complete construction of a
treatment system for selenium discharges and “achieve compliance
with the final selenium effluent limitations” 6 by June of 2018.
(Id.)

Yet, according to defendant’s quarterly reports filed

pursuant to the Consent Decree, defendant has no effective
treatment system nor had it developed a plan to achieve
compliance at the time of plaintiffs’ filing of the Complaint.
(See ECF No. 11, at p. 14.)

Thus, just as in Independence,

The WVDEP imposed the specific requirement that
Defendants install selenium treatment systems, which
Defendants have yet to complete. . . . The Consent
Decree's tiered response approach has no similarly
stringent approach to achieving compliance with the
selenium effluent limitations. Rather, the tiered
response provisions apply only to violations of the
daily and monthly limits, not to the additional
treatment system requirements. The WVDEP recognized
that this, at a minimum, was necessary to begin to
address the consistent inability of the defendants to
comply with the selenium effluent limitations.
2011 WL 1984523, at *6 (citations omitted).

The Consent Decree

does not include the mechanisms that were calculated to achieve

Those limits are a monthly average of 4.7 μg/l and a daily
maximum of 8.2 μg/l. (Id. Ex. E.)
6

23

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 24 of 29 PageID #: 967

compliance with the violations that plaintiff raises, and as
such does not constitute a diligent prosecution.
D. The Consent Decree does not appear to have removed
the economic incentives to violate permit limits
Defendant has paid approximately $278,000 in stipulated
penalties for those selenium effluent violations at Red Fox
Mine.

(ECF No. 9.)

However, as defendant continues to be in

consistent non-compliance with the terms of its selenium permits 7
despite facing these general penalties for violations and repeat
violations as stipulated, it appears evident that the Consent
Decree’s penalties have not “remove[d] or neutralize[d] the
economic incentive to violate [the selenium-related]
environmental regulations.”

United States v. Smithfield Foods,

Inc., 191 F.3d 516, 529 (4th Cir. 1999).

Moreover, defendant

Defendant has violated its selenium limits at one or more of
Outlets 005-008 in every month from June 2018 to the time of
plaintiffs’ filing in August 2019. (See ECF No. 11, at p. 13;
ECF No. 12, Ex. 1). These types of repeated violations stands
in stark contrast to cases finding diligent prosecution, and is
more in line with those in which plaintiffs showed a lack of
diligent prosecution. Compare Sierra Club v. Powellton Coal
Co., LLC, 2010 WL 454929, at *12 (S.D.W. Va. Feb. 3, 2010) (no
diligent prosecution where there were thousands of continuing
violations after the filing of the consent decree), with Comfort
Lake Ass'n v. Dresel Contracting, Inc., 138 F.3d 351, 357 (8th
Cir. 1998) (finding diligent prosecution where many of the
violations alleged by plaintiffs occurred prior to the consent
decree and were highly unlikely to continue).
7

24

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 25 of 29 PageID #: 968

reported that it paid no stipulated penalties for thirty-one
violations of the maximum selenium limits at those Outlets.
(See ECF No. 11, Ex. F.)

When a consent decree creates an

ineffective penalty regime and/or does not challenge continuing
violations, courts have found this to be another sign of a lack
of diligent prosecution.

See, e.g., Friends of Milwaukee's

Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 762
(7th Cir. 2004) (“courts have considered whether penalties are
assessed and whether the amount of the penalty has taken into
account the economic benefit the violator derived from
noncompliance”) 8; Atl. States Legal Found., Inc. v. Eastman Kodak
Co., 933 F.2d 124, 128 (2d Cir. 1991) (explaining that a motion
to dismiss should be denied if violations are continuing); Ohio
Valley Envtl. Coal., Inc. v. Hobet Min., LLC, 723 F. Supp. 2d

The Seventh Circuit in Friends of Milwaukee's Rivers cautioned
that continuing violations are not always a sign of a lack of
diligent prosecution: sometimes continuing violations are due
to “underlying systemic causes [that] are likely to continue
until a large-scale remedial project addressing those underlying
causes is completed.” 382 F.3d at 762. Thus, courts should not
levy “additional penalties on violators who are undertaking
massive remedial projects [because such action] will not bring
about compliance any faster or cause the result to be any more
effective.” Id. at 763. However, here there is no evidence
that defendant has the beginnings of an effective treatment
system nor has even developed a plan to achieve compliance – and
this is particularly harmful to defendant’s case when its permit
required such action be completed by June of 2018. See supra;
(ECF No. 11, at p. 14); (id. Ex. E.)
8

25

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 26 of 29 PageID #: 969

886, 908 (S.D.W. Va. 2010) (finding no diligent prosecution in
part because the consent decree’s penalties “appear inadequate
to remove the economic benefit of non-compliance”); Citizens
Legal Envtl. Action Network, Inc. v. Premium Standard Farms,
Inc., 2000 WL 220464, at *13 (W.D. Mo. Feb. 23, 2000) (noting
that two indicia of diligent prosecution are whether violations
are continuing and whether the economic incentive to pollute has
been removed); Friends of the Earth, Inc. v. Laidlaw Envtl.
Svcs. (TOC), 890 F. Supp. 470, 489–95 (D.S.C. 1995), vacated on
other grounds, 149 F.3d 303 (4th Cir. 1998), rev'd on other
grounds, 528 U.S. 167 (2000).

This court in Independence faced

a nearly identical situation and found that this insufficient
economic incentive was another factor demonstrating a lack of
diligent prosecution:
[T]he current violations of the selenium effluent
limitations were not considered in the calculation of
the fine imposed on Defendants . . . The Consent
Decree covers only those violations that had occurred
prior to the lodging of the Consent Decree. As the
selenium effluent limitations were not in effect at
that time, the . . . fine was not calculated to
account for future violations of those limits.
Therefore, the fine assessed against Defendants does
not “remove or neutralize the economic incentive to
violate [the selenium-related] environmental
regulations.”
2011 WL 1984523, at *6 (citations omitted).

26

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 27 of 29 PageID #: 970

E. Plaintiffs’ claims are redressable before this court
Defendant correctly conceded that plaintiff possesses the
injury and causation elements of the standing requirements.

See

ECF No. 9, at p. 9 n.11; see also Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992) (explaining standing
requirements).

The only issue as to standing is whether

plaintiffs’ claims are redressable before this court.
Redressability is met if it is “likely” that the injury asserted
will be “redressed by a favorable decision.”

Lujan, 504 U.S. at

561.
Because plaintiffs’ suit is not precluded by the diligent
prosecution bar, plaintiffs’ claims are redressable before this
court. 9

Plaintiffs ultimately seek civil penalties for

defendant’s alleged violations, among other remedies such as an
injunction requiring defendant to immediately comply with the
effluent limitations within permit WV1006304.
at p. 10.)

(See ECF No. 1,

Once plaintiffs meet their burden of demonstrating a

lack of diligent prosecutions, plaintiffs are no longer barred
from seeking civil penalties for defendant’s violations even
though those same violations are subject to stipulated penalties

Both parties correctly argued that if plaintiffs’ claim was
barred because they could not demonstrate a lack of diligent
prosecution, plaintiffs would not have standing.
9

27

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 28 of 29 PageID #: 971

under the Consent Decree.

See Sierra Club v. Powellton Coal

Co., 2010 WL 454929, at *14 (S.D.W. Va. Feb. 3, 2010)
(“[P]laintiffs are not barred from seeking additional penalties
for violations within the consent order or those occurring
afterwards.”).

Furthermore, the Supreme Court has made clear

that civil penalties provide a valid form of redress.

See

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 185-86 (2000) (“To the extent that [civil
penalties] encourage defendants to discontinue current
violations and deter them from committing future ones, they
afford redress to citizen plaintiffs who are injured or
threatened with injury as a consequence of ongoing unlawful
conduct.”).

Thus, plaintiffs’ claims are redressable because

they seek a remedy that this court possesses the power to grant
and which would redress their injuries “by abating current
violations and preventing future ones.”
V.

Id. at 187 (2000).

Conclusion
The court has fully considered the parties' pleadings, in

the light most favorable to the plaintiffs, and finds that
plaintiffs have met their burden of proof showing that that the
government action is not capable of requiring compliance or was
not in good faith calculated to do so.

There is a realistic

prospect that the violations alleged in its complaint will
28

 Case 1:19-cv-00576 Document 60 Filed 06/03/20 Page 29 of 29 PageID #: 972

continue notwithstanding the current Consent Decree.

As such,

and for the reasons expressed above, defendant’s motion to
dismiss, (ECF No. 8), is DENIED.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to all counsel of record.
IT IS SO ORDERED this 3rd day of June, 2020.
Enter:
David A. Faber
Senior United States District Judge

29