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Ohio Valley Environmental Coalition, Inc. v. Fola Coal Co., LLC

ELR Citation: 44 ELR 20236
Nos. No. 2:12-3750, (S.D. W. Va., 10/23/2014) (Chambers, C.J.)

A district court held that an environmental group may seek injunctive relief and civil penalties against a mining company previously held liable for the unpermitted discharge of selenium into U.S. waters even though the company has since obtained new permits allowing such discharges. The company argued that based on the reissued permits, the group's request for injunctive relief is moot. But while the reissued permits may ensure that there will not be future violations of the water quality standards, they do not erase the fact that the court has already determined that the company did commit violations of the permit as it existed when the complaint was filed and as it existed when liability was determined. As such, the claims are not moot. Whether the reissued permits and company's efforts to eventually come into compliance amount to an adequate remedy for those violations is a question for trial. And while civil penalties should not be imposed for any water quality standards violations that occurred after the permits were reissued, the company's practices after the permits were reissued could factor into the amount of the civil penalties imposed for violations of the water quality standards that occurred before the reissuances.