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Three court cases could affect water quality enforcement

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Water quality is a hot topic in and out of the courtroom, and a few legal actions and decisions could have significant implications for the industry.

Christopher "Kip" Power, a Charleston Dinsmore & Shohl attorney, discussed two federal actions and a notice of intent that could make a big difference.

A significant potential case, Power said, is a notice of intent to sue filed against the Environmental Protection Agency, relating to the West Virginia Department of Environmental Protection water quality program.

"There could be a fairly important case that comes out of that," he said.

Addressed to EPA administrator Lisa Jackson, the 60-day notice of intent was sent Jan. 25 by the Sierra Club, West Virginia Highlands Conservancy and Ohio Valley Environmental Coalition alleging Jackson violated non-discretionary duties.

One of the allegations states Jackson failed to approve or deny within a 30-day period West Virginia's impaired water list, which includes waters in which effluent limitations are not "stringent enough to implement any water quality standard applicable to such waters."

The notice alleges that states are required to submit their lists of identified waters to the administrator, who will either approve or deny the identification within 30 days.

The groups allege a Senate bill enacted in March 2012 "revised West Virginia's water quality standards to weaken the standards for protecting the biological integrity of streams."

"WVDEP has failed to submit that revision to EPA for approval and has defiantly taken the indefensible position that it is not a revision. EPA cannot accept WVDEP's representation at face value," the notice states. 

The groups say the EPA must determine whether a revision has occurred.

"In this case, EPA has violated its non-discretionary duty either to approve West Virginia's revised standard within 60 days or to notify the state of its disapproval of that revised standard within 90 days."

The letter further states that the groups think the administrator cannot legally approve the list as submitted.

"It would set a clear precedent that the West Virginia regulators and coal operators may continue to ignore the EPA and the provisions of the federal Clean Water Act without consequence."

Moving over to federal court, a decision was rendered Jan. 11 in the Eastern District of Kentucky in a citizen suit alleging violations of the Clean Water Act and SMCRA.

The Sierra Club filed the action against ICG Hazard LLC . The federal judge granted summary judgment to ICG, dismissing plaintiff's allegations under SMCRA because of the dismissal of the Clean Water Act counts.

 "The significance of it is that the federal judge found that the Clean Water Act counts were subject to dismissal," he said.

There was a question, Power continued, of whether the Sierra Club's claims under SMCRA could continue, based on the same underlying factual allegations.  

 "In other words, in the area of water pollution or water pollution control, the Clean Water Act and state versions of that, takes precedence over the mining statutes. The question was whether with the Clean Water Act counts being dismissed, could plaintiffs continue the lawsuit with the mining act claims," Powers explained.

In his decision, the judge dismissed the lawsuit, saying since the Clean Water Act claims were dismissed, so therefore, the SMCRA claims also had to be dismissed.

That decision is on appeal to the 6th Circuit Court of Appeals.

"I think the net effect would be to limit the involvement of federal courts the number of federal citizen complaints that could be filed against individual coal mining companies," he said.

Another federal case issued in the Western District of Virginia could have effects on the industry.

In that case, the Southern Appalachian Mountain Stewards filed the action against Penn Virginia Operating Co. LLC under the federal Clean Water Act seeking to address a landowner's unpermitted discharges from abandoned "gob piles," or coal/mining byproducts waste piles. 

 Defendants made a motion to dismiss, but the federal judge denied dismissal of the citizen suit against the landowner.

"The gob piles are allegedly discharging pollutants through point sources," Power said.

He said the key point here is defining the term "point sources."

 "And in this case, the defendant felt that the complaint did not adequately allege that there were point sources involved — just piles of refuse," Power said.

The district court judge found that plaintiffs did adequately allege there were point sources, based on a report referenced in the complaint, Power explained.

"It's certainly not groundbreaking," he said. "But the decision affirms once again that there is landowner liability under the federal Clean Water Act for legacy discharges of pollutants, regardless of who calls that pollution."