By John McFerrin, West Virginia Highlands Conservancy 

There has been a new development in the efforts by the West Virginia Highlands Conservancy and the West Virginia Rivers Coalition to force Amsted Graphite Materials near Clarksburg to comply with the Clean Water Act. The Pacific Legal Foundation has jumped into the fight on behalf of Amsted Graphite Materials, arguing that the section of the Clean Water Act under which the groups are proceeding is unconstitutional. 

Under the federal and state Clean Water Act, this company was issued permits that allow it to discharge water containing limited amounts of pollutants. A permit might say, for example, that the water leaving the site may contain up to three parts per million of iron, 0.5 parts per million of aluminum, etc. If the concentrations are greater, then the company is in violation. 

In the case of Amsted, the pollutants are copper, lead, zinc, aluminum and a long list of unpronounceable chemicals with names like benzoanthracene and indenopyrene. The pollutants are entering a tributary of Anmoore Run approximately two miles from its confluence with Elk Creek, a tributary of the West Fork River. The concentrations of pollutants in the water being discharged are dramatically greater than the concentrations allowed by the permits. 

That the violations of the Clean Water Act occurred is not really in doubt. The way the system works, companies are required to sample the water leaving their operations and report the results to the West Virginia Department of Environmental Protection. Some grumble that having companies do their own sampling and reporting is the osprey guarding the koi pond or the locust guarding the wheat field. When, as here, that sampling shows violations, the proof becomes much more straightforward. The company can hardly deny the violations; it’s their own data. 

The West Virginia Department of Environmental Protection would, of course, have the right to take enforcement actions in response to these violations, as would the United States Environmental Protection Agency. Neither of them did. 

When this happens, any interested citizen has the right to file a complaint, asking that the court enforce the law. This is what the West Virginia Highlands Conservancy and the West Virginia Rivers Coalition did in this case. 

Before filing a complaint, the interested party has to give the company, the West Virginia Department of Environmental Protection and the United States Environmental Protection Agency 60 days’ notice of the violations. The notice that WVHC and the Rivers Coalition sent to the company, the West Virginia Department of Environmental Protection and the U.S. Environmental Protection Agency had an attachment listing the violations. It went on for 28 pages. That’s either impressive or depressing, depending upon one’s perspective. 

The law makes the cheery assumption that, once the company has been shown the error of its ways, it will fix the problems and all will be right with the world. Failing that, the West Virginia Department of Environmental Protection or the U.S. Environmental Protection Agency will notice the violations and spring into action to enforce the law. Neither of these things happened here, so WVHC and the Rivers Coalition filed suit. 

Now defendant Amsted Graphite Materials has moved to dismiss the case. It does not deny that it is in violation of the law. Instead, while implicitly admitting that it is in violation, it argues that only the government may enforce the law. It claims that the government agencies, even though they knew of the violations, made a principled policy decision to ignore those violations. The government, having made its decision, a citizen may not interfere. 

Citizen suit provisions have a long history. They have been part of the Clean Water Act since 1972. They are part of the Surface Mining Control and Reclamation Act, as well as numerous other federal and state statutes. The citizen plaintiffs don’t receive any of the fines that might result from such suits. They only receive the benefits to the general public: cleaner water, relief from illegal mining, etc. Since the government has a duty to enforce the law and presumably wants the law to be enforced, citizen suits make more enforcement possible without the government having to spend its resources. 

On a more basic level, citizen suits rely upon the unfortunate truth that the state won’t do anything, but a judge will. 

Amsted Graphite Materials is represented by both a West Virginia law firm and the Pacific Legal Foundation. The Pacific Legal Foundation is a public interest law firm that litigates in order to advance a libertarian political viewpoint. It is safe to assume that it has no interest in the waters of West Virginia, enforcement policy at the West Virginia Department of Environmental Protection or anything else that is specific to this case. It is here to make a political point.