Massey seeks to dismiss water pollution suit

CHARLESTON – Private citizens can sue to enforce the national Clean Water Act only when government regulators fail to enforce it, Massey Energy argues in federal court.

Massey subsidiaries moved on July 6 to dismiss a suit the Sierra Club and other groups filed in April, seeking to halt water pollution from coal mines.

"Citizen suits are meant to supplement rather than to supplant governmental action," wrote Robert McLusky of the Jackson Kelly firm in Charleston.

He wrote that the suit involves the same permits and pollutants as a consent decree that Massey and the U. S. Environmental Protection Agency signed in 2008.

The decree obligated Massey to pay $20 million in civil penalties.

McLusky wrote that the decree "is clearly capable of requiring compliance with the Clean Water Act and is in good faith calculated to do so."

He wrote, "Plaintiffs cannot seriously argue that the consent decree is incapable of requiring compliance with the Act."

He urged District Judge John Copenhaver to rule that he lacks jurisdiction.

Copenhaver presided over the suit that resulted in the consent decree.

The Sierra Club, Coal River Mountain Watch, West Virginia Highlands Conservancy, and Ohio Valley Environmental Coalition moved to intervene in that suit.

Copenhaver didn't grant the interventions, though he didn't deny them until Massey and the EPA adopted the consent decree.

This April, the four groups sued Elk Run Coal, Independence Coal, Marfork Coal, Peerless Eagle Coal, and Power Mountain Coal.

Derek Teaney and Joseph Lovett, both from the Appalachian Center for the Economy and the Environment in Lewisburg, filed the complaint.

They alleged that the companies have continued to discharge aluminum, suspended solids, iron and other contaminants into public waters.

They claimed the companies accrued at least 3,307 days of violations through 255 unlawful discharges from April 2008 to last December.

They sought penalties up to $32,500 per day for violations through Jan. 12, 2009, and $37,500 per day after that.

Multiplying the days by the maximum penalties produces a total above $100 million.

The groups also sought an order requiring immediate compliance with all permits.

They sought an order requiring monitoring, sampling, remedies, repairs, and restoration of the environment "to its prior uncontaminated condition."

They sought fees for attorneys and experts, plus other reasonable expenses.

McLusky responded in his motion to dismiss that the Clean Water Act allows citizens to abate pollution when government cannot or will not command compliance.

He wrote that the act precludes citizen suits if EPA or a state "has commenced and is diligently prosecuting a civil or criminal action to require compliance."

He wrote, "Plaintiffs bear the burden of proving that EPA's prosecution is not diligent."

He wrote, "The burden is a heavy one, because diligence on the part of the enforcement agency is presumed."

He wrote that if the action proceeded, it would undermine EPA's discretion as primary enforcer of the Clean Water Act.

"The fact that EPA's prosecution strategy apparently falls short of plaintiffs' desired remedy or produces an unsatisfactory result is simply insufficient to overcome the presumption of diligence," he wrote.