Hernshaw Decision Could Have Impacts Beyond Coal Industry

December 16, 2013Articles
The U.S. District Court for the Southern District of West Virginia has issued a number of decisions in the last several years touching upon the outer contours of jurisdiction under the Clean Water Act’s citizen suits provision (33 U.S.C § 1365), in most cases arising out of challenges to permits for coal mining operations. Its December 2, 2013 Memorandum Opinion and Order in Ohio Valley Environmental Coalition, Inc., et al. v. Hernshaw Partners, LLC (Civ. Action No. 2:13-CV-14851) is yet another such decision, although it involves the site of a former mining operation, and the effects of the significant rulings made by the court could extend far beyond the coal industry.

As an initial matter, the court in Hernshaw denied the Defendants’ motion to dismiss based on the argument that Plaintiffs lacked standing to bring the action. As the court noted, under the “relatively low threshold” developed over the years, in order to show standing citizens suit plaintiffs need only allege (a) that a particular stream segment has “aesthetic” or “recreational” value, and (b) that they are harmed by just thinking about the possibility of unpermitted pollutants entering that stream. In other words, though one might assume otherwise, such lawsuits are premised upon harm to the plaintiffs -- not harm to the environment. See, e.g., Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000).

A further reflection of that general principle is found in the district court’s ruling with respect to the mechanism and extent of the alleged pollution at issue in Hernshaw. The acute (one-time) maximum water quality standard for selenium in West Virginia streams is 20 parts per billion (ug/l), and the chronic standard (average concentration over a 4-day period) is 5 ug/l. If a stream falls below those concentrations, it is considered “unimpaired” under West Virginia regulations. The sole basis for the claims against the Defendant in Hernshaw concerning the discharge of selenium into the stream in question (Laurel Fork) was an elevated selenium concentration of 2.5 ug/l – far below the acute water quality standard and half of the chronic standard. Further, that result was based on a single sample obtained by a sampler hired by the Sierra Club, who did not take the sample at the location on the Defendant’s property where water entered a tributary of Laurel Creek, but approximately one mile downstream.

Despite the attenuated nature of these claims, the district court had no trouble in concluding that they were sufficient to allow the citizens suit to proceed. Any unpermitted discharge of pollution into waters of the United States is a violation of the Clean Water Act. Plaintiffs’ allegations were enough to find that the Defendant may be responsible for some measure of pollution entering Laurel Fork, and in the court’s view that was enough to sustain their lawsuit.

Of perhaps greater significance is the Court’s discussion in Hernshaw of the Plaintiffs’ satisfaction of the statutory requirement that they allege “ongoing” violations of the Clean Water Act, emanating from a “point source” discharge of pollutants. In surveying the decisional law with respect to the issue, the district court was persuaded that a person may be found to be in violation of the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”) permitting requirement based on such a scenario, “even if the activities that caused the violations have ceased.”

In making this ruling, the court acknowledged that there is no precedent from the U. S. Court of Appeals for the Fourth Circuit (the federal appellate court with jurisdiction over West Virginia) addressing the question of “whether past discharges with lingering effects give rise to a citizens suit.” However, the court looked to other decisions from the Fourth Circuit in which that court found that each day that fill material remains in a wetlands area without a permit constitutes an additional day of violation under the Clean Water Act’s § 404 “dredge and fill” permit program. Equating this to the deposit of selenium-laden material in a valley fill that may result in sporadic or intermittent discharges of selenium-contaminated water, the court ruled that the discharges at issue are properly considered to be “ongoing” even though the conduct that caused them stopped many years ago.

In this regard, the district court adopted an expansive definition of “point source,” a necessary element for purposes of finding permit liability under the Clean Water Act. In doing so, it relied upon the broad language used in the Act, which is enhanced by the inclusion of the phrase “including but not limited to.” Under the statute and decisional law interpreting it, the court found that the Plaintiffs had an adequate basis for alleging that the valley fill in question was a “point source” for which the Defendant was required to obtain a NPDES permit.

Finally, the district court in Hernshaw flatly rejected the Defendant’s argument that “it cannot be liable for the alleged discharges because it was not responsible for and received no benefits from the construction of the valley fill …” In fact according to court filings the Defendant in Hernshaw had no connection to the property in question at the time mining was conducted, received no benefits from that mining, and has not used the property for any purpose since it was acquired. In addition, the mining and NPDES permits for the former mining operations had been released by the West Virginia Department of Environmental Protection (WVDEP) over 8 years before the Defendant acquired the property. Quoting from a Fourth Circuit opinion affirming liability imposed on the WVDEP for discharges from a forfeited site undergoing reclamation, the court reiterated that “there is simply no causation requirement in [the Clean Water Act] …”

The principles articulated in Hernshaw are easily applied to a variety of scenarios and industrial activities, including other forms of natural resource extraction and processing, commercial developments, transportation projects and those who own land on which such activities are being or were undertaken. As a result, there may be some value even for those who are not involved in the coal industry in undertaking an assessment of current operations and property holdings with these principles in mind. Further, these considerations warrant a careful evaluation of potential property acquisitions. Especially since the courts routinely award attorneys fees and costs to successful plaintiffs under the Act’s fee-shifting provision, there is little reason to expect the number of Clean Water Act citizens suits to diminish.

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