Plaintiffs brought this citizen suit under the Clean Water Act (CWA) and against a coal company for discharging selenium and ionic pollutants from two mines. The plaintiffs claimed that the defendant exceeded its 402 permit limitations and its 401 certification as well as violated the Surface Mining Control and Reclamation Act (SMCRA). The West Virginia Department of Environmental Protection (DEP) issued two Orders of Compliance for exceeding selenium discharge limitations and a Proposed Consent Order to come into compliance. The defendant claimed these orders precluded the plaintiffs’ claims under section 309(g) of the CWA, which bars a citizen suit if a state has already begun prosecution under comparable state law or the state has already issued a final order imposing a monetary penalty. See 33 U.S.C. § 1319(g).

In rejecting the defendant’s claim, the court found that these orders did not cover the entire scope of the plaintiffs’ allegations, such as those involving ionic pollutants or the SMCRA. Additionally, the allegations that the Proposed Consent Order did address did not meet section 309(g) criteria. First, because the plaintiffs filed the citizen suit more than a year before the DEP sent the Proposed Order, the enforcement action did not predate the citizen suit. Moreover, the court had previously found that the state law was not comparable to the CWA because it “does not provide for the assessment of administrative penalties without the violator's consent.” Sierra Club v. Powellton Coal Co., LLC 662 F. Supp. 2d 514, 530 (S.D. W. Va. 2009). Alleged violators may terminate DEP enforcement action at any time and for any reason. Finally, none of the orders penalized the defendant, but instead gave the defendant the option to not enter into the proposed order at all. Because of this, the court found that the state enforcement did not preclude the plaintiffs’ suit.

Ohio Valley Environmental Coalition v. Lexington Coal Coal Co., 2021 WL 1093631 (S.D.W. Va. March 22, 2021).