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Ohio Valley Envtl. Coalition v. Apogee Coal Co.

ELR Citation: 38 ELR 20032
Nos. No. 3:07-413, (S.D. W. Va., 01/24/2008)

A district court denied motions to dismiss an environmental group's lawsuit against two mining operations for discharging selenium in excess of what was allowed under their Clean Water Act (CWA) permits. The environmental group sufficiently stated a claim under the CWA. Contrary to the mining companies' arguments, the CWA claims are better characterized as traditional citizen suit enforcement actions than collateral attacks on permitting decisions of the West Virginia Department of Environmental Protection. The mines' motion to dismiss on grounds that there is no federal cause of action under the Surface Mining Control and Reclamation Act (SMCRA) was also denied. The court rejected the argument that the citizen suit provision contained in SMCRA is not operable in West Virginia, a primacy state. Although caselaw precludes the group from bringing a claim based upon the violations of federal regulations—which are not directly operable in a primacy state—the group must be allowed to pursue its claim based on violations of state regulations passed pursuant to SMCRA.