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West Virginia Highlands Conservancy v. Monongahela Power Co.

ELR Citation: 42 ELR 20014
Nos. 1:11cv71, (N.D. W. Va., 01/03/2012) (Keeley, J.)

A district court denied a coal-fired power plant's motion to dismiss or stay an environmental group's CWA citizen suit against it for discharging impermissible amounts of arsenic into the waters of the United States in violation of its state and federal discharge permits. The plant argued that the court should dismiss this case on Burford abstention grounds. The plant argued that the group's claims are an impermissible collateral attack on a permitting decision of the state. But the plant's attempt to recharacterize the plaintiffs' rather ordinary citizen enforcement suit as a collateral attack on an agency decision is unavailing. The group's claims are an ordinary citizen suit brought under the CWA seeking to enforce state and federal permits. In addition, timely and adequate state court review is not available since there is no citizen enforcement provision in the West Virginia Water Pollution Control Act, and the court's involvement in this dispute will serve to enforce, and not disrupt, West Virginia's environmental policy. The court, therefore, denied the plant's motion to dismiss this case on Burford abstention grounds. In the alternative, the plant asked the court to stay the proceedings pending the outcome of its involvement in state rulemaking proceedings for arsenic. But the rulemaking procedure is steeped in uncertainty, as the process could take any number of months and the plant's ultimate likelihood of success is unpredictable at best. The court, therefore, denied the plant's request for a stay. West Virginia Highlands Conservancy v. Monongahela Power Co., No. 1:11cv71, 42 ELR 20014 (N.D. W. Va. Jan. 3, 2012) (Keeley, J.).