UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
WEST VIRGINIA HIGHLANDS
CONSERVANCY, INC. and
WEST VIRGINIA RIVERS
Civil Action No. 2:07-0410
RANDY C. HUFFMAN,
Secretary, West Virginia
Department of Environmental
MEMORANDUM OPINION AND ORDER
Pending is the motion of the plaintiffs for summary
judgment and declaratory and injunctive relief, filed March 12,
2008. For the reasons that follow, the motion is granted.
Surface coal mining operations in West Virginia can be
said to fall in one of three categories: (1) abandoned mine lands
which completed operations prior to the passage of the Surface
Mining Control and Reclamation Act of 1977 (“SMCRA”), 30 U.S.C.
§§ 1201 through 1328; (2) active or completed operations, which
Case 2:07-cv-00410 Document 40 Filed 08/24/09 Page 1 of 41
were started or bond released since SMCRA's passage; and (3) bond
forfeiture sites, where the permits of the mining companies have
been revoked and bonds forfeited by the West Virginia Department
of Environmental Protection (“WVDEP”). (WV AMD Study at 1,
attached as Ex. 1 to M.S.J.). This case is a citizen suit
brought under the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251
through 1387, concerned with the discharge of acid mine drainage
(“AMD”) at sites in the third category, bond forfeitures. (Mem.
in Supp. of M.S.J. at 2).
First to be determined here is whether the WVDEP is
acting in contravention of the CWA by discharging pollutants
without the appropriate permit. If the WVDEP is indeed in
violation of the CWA, it must next be determined whether the
Eleventh Amendment bars this action against defendant Randy C.
Huffman, Secretary of the WVDEP (“Secretary”). If the former
query is answered in the affirmative, and the latter in the
negative, plaintiffs are entitled to judgment in their favor.
Case 2:07-cv-00410 Document 40 Filed 08/24/09 Page 2 of 41
The WVDEP revoked one surface mining permit of Harvey