Massey wants Copenhaver on two water pollution suits

By Steve Korris | Jul 26, 2010

CHARLESTON – Facing two water pollution claims before federal judges John Copenhaver and Robert Chambers, Massey Energy wants Copenhaver to take charge of both.

On July 14, Robert McLusky of Charleston asked Copenhaver to transfer to his court in Charleston a suit pending before Chambers in Huntington.

"There is simply no reason for two different judges within the same district to consider the identical legal issues between the same parties," McLusky wrote.

He argued that both suits relate to a consent decree Copenhaver approved in 2008, between Massey and the U. S. Environmental Protection Agency.

The Sierra Club sued four Massey subsidiaries in federal court at Charleston in April, claiming their coal mines have not complied with the decree.

West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, and Coal River Mountain Watch joined the suit.

They claimed the mines illegally discharged various poisons into public waters.

The same groups sued two Massey subsidiaries in federal court at Huntington in June, alleging illegal discharges of selenium into public waters.

Both suits sought injunctive relief and civil penalties up to $37,500 a day, under the national Clean Water Act.

According to McLusky, the groups properly related the first suit to the consent decree but improperly failed to relate the second to the decree.

"This court should rectify plaintiffs' mistake by transferring Sierra Club II from the Huntington division to the Charleston division, where it should have been assigned initially," he wrote.

"Here, there is no question that common facts and legal issues are involved," he wrote.

"Both cases will require a court to determine the preclusive or other effect of EPA's consent order," he wrote.

"Plaintiffs obviously do not believe there is a risk of prejudice inherent in having this court hear their claims as evidenced by the fact that they chose to file Sierra Club I in the Charleston division," he wrote.

The Clean Water Act authorizes private citizens to enforce it, if EPA doesn't.

Massey has moved to dismiss the first suit, arguing that EPA oversight of the consent decree constitutes diligent enforcement of the act.

The second suit specifically alleges that EPA has not commenced or diligently prosecuted civil or criminal action to redress selenium violations.

It claims injuries to esthetic, recreational, environmental, and economic interests.

Copenhaver has set a scheduling conference on Aug. 27, and Chambers has set one on Sept. 27.

Derek Teaney and Joseph Lovett, of the Appalachian Center for the Economy and the Environment in Lewisburg, represent plaintiffs.

So does Jennifer Chavez, of Earth Justice in Washington.

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