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Ohio Valley Environmental Coalition v. Consol of Kentucky

ELR Citation: 44 ELR 20103
Nos. 2:13-5005, (S.D. W. Va., 04/30/2014) (Chambers, C.J.)

A district court held that a coal company violated the CWA and SMCRA by discharging excessive amounts of selenium into the waters of West Virginia. The company argued that the environmental group's lawsuit should be dismissed because it had already entered into a consent decree with the state environmental agency for CWA and SMCRA permit violations. But the court held that the consent decree is not a bar to the lawsuit. Although the state agency had commenced an enforcement action—the consent decree—when the complaint was filed, the agency's enforcement action does not constitute “diligent prosecution” as that term is used by the CWA and SMCRA. The court also held that the group has standing and that the complaint sufficiently alleges an ongoing or intermittent violation of the selenium limits found in West Virginia’s water quality standards. In addition, the group presented evidence sufficient to establish at least one violation of West Virginia’s water quality standards. The court will therefore resolve the group's claims for declaratory and injunctive relief and civil penalties in phase 2 of the litigation.