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This article originally provided by The Charleston Gazette

Judge: WVDEP coal deals don’t block citizen lawsuits

If it seems strange that a federal judge wrote a 53-page order on a motion to dismiss in a civil case, then take a look at what could be a blockbuster decision from U.S. District Judge John T. Copenhaver Jr.

Judge Copenhaver, in this ruling issued today, concluded that private deals between coal companies and the West Virginia Department of Environmental Protection do not block citizens from filing their own enforcement lawsuits under the Clean Water Act.

In the case, Powellton Coal (a CONSOL Energy Inc. subsidiary) argued a citizen suit over its repeated water pollution violations should be thrown out, because the company already negotiated a deal with WVDEP officials.

By way of background, recall that the coal industry went to WVDEP to try to start working out these deals after the federal EPA won a record $20 million settlement for Clean Water Act permit violations by Massey Energy Co. West Virginia environmental groups have  complained about these deals and cited them as “egregious and inadequate” in seeking a federal takeover of the WVDEP water pollution enforcement program.

So what exactly has Judge Copenhaver done?

Well, the judge noted that the federal EPA’s water enforcement program allows federal officials to assess monetary fines unilaterally, without going to court. But under West Virginia’s state program, WVDEP officials can either file a lawsuit or enter into negotiations through which companies agree to pay a certain amount of fines.

Without the ability to assess its own fines, Copenhaver said, the West Virginia program is not “comparable” to the federal program — and therefore not enough to insulate polluters from separate citizen enforcement suits.

The judge’s ruling included some interesting details on how West Virginia law currently works:

… West Virginia law does not empower the WVDEP to unilaterally assess civil penalties. W.Va.  Code 22-11-22(b) authorizes and directs the WVDEP “to propose, for legislative promulgation, rules … to establish a mechanism for the administrative resolution of violations set forth in this section through consent order or agreement.

Under that section, the WVDEP has written rules that work like this:

Within ten days of receiving notification of the secretary’s intent to institute adminstrative proceedings the responsible party must respond and indicate “whether it shall participate or refuses to participate in the administrative proceeding.”

… If the responsible party refuses to participate in the administrative proceedings, or fails to respond within ten days, the administrative penalty process comes to an end and the WVDEP must either seek or assess a penalty through the courts or forgo the imposition of a penalty.

Even if a company agrees to participate in an administrative proceeding with WVDEP, the company can drop out of the process anytime it wants, for any reason.

Judge Copenhaver concluded that, were he to find this procedure comparable to the EPA process — which allows EPA to impose fines unilaterally –

… A conniving violator could simply agree to the commencement of adminsitrative proceedings in order to deprive federal district courts of jurisdiction … with no intention of ever entering into a consent decree.

WVDEP is not a party to this federal court suit, brought by the Sierra Club and the Ansted Historic Preservation Council against Powellton Coal. But WVDEP officials were looking into the ruling late this afternoon, and trying to sort out what it means for them — and for all of these deals they’ve been cutting with the coal industry.

Ray Franks, the WVDEP general counsel, told me if the ruling means settling with his agency does not protect coal companies from citizen enforcement suits:

That’s going to take away a major incentive for mining companies to enter into settlements with DEP.

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