Ohio Valley Environmental Coalition, Inc. v. Alex Energy, Inc. (12 F. Supp. 3d 844, 2014)

United States District Court for the Southern District of West Virginia 2014-03-31

Mineral Lands and Mining Navigation and Navigable Waters Title 83

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, Chief Judge.

Pending before the Court are seven motions for partial summary judgment: Plaintiffs’ motion for partial summary judgment and for declaratory and injunc-tive relief and civil penalties against Jacks Branch Coal Company (ECF No. 83); Plaintiffs’ motion for partial summary judgment and for declaratory and injunc-tive relief and civil penalties against Band-mill Coal Corporation (ECF No. 85); Defendants’ motion for partial summary judgment (ECF No. 87); Bandmill’s motion for partial summary judgment (ECF No. 89); Plaintiffs’ motion for partial summary judgment and for declaratory and in-junctive relief and civil penalties against Aracoma Coal Company, Inc., Highland Mining Company, Independence Coal Company, Inc., and Kanawha Energy Company (ECF No. 91); Highland’s motion for partial summary judgment (ECF No. 93); and Jacks Branch’s motion for partial summary judgment (ECF No. 95). Also pending are Plaintiffs’ Rule 37(c) motion to strike Exhibit 1 of Highland’s reply brief in support of its motion for partial summary judgment (ECF No. 119) and Jacks Branch’s motion for a partial stay pending entry of a consent decree (ECF No. 133).

For the reasons explained in this Memorandum Opinion and Order, the Court rules as follows:

1.The Court FINDS that the holders of permits which do not have selenium limits or monitoring and reporting requirements on their face must comply with West Virginia water quality standards, consistent with this Court’s findings in Ohio Valley Environmental Coalition, Inc. [“OVEC”] v. Elk Run Coal Company, Inc., No. 3:12-cv-0785, 2014 WL 29562 (S.D.W.Va. Jan. 3, 2014), OVEC v. Fola Coal Company, LLC, No. 2:12-cv-3750, 2013 WL 6709957 (S.D.W.Va. Dec. 19, 2013), and OVEC v. Marfork Coal Company, Inc., 966 F.Supp.2d 667 (S.D.W.Va.2013).

2. The Court FINDS that the West Virginia Department of Environmental Protection (“WVDEP”) is not authorized to indefinitely suspend the requirement that permit holders comply with water quality standards. Therefore, the holders of permits which impose monitoring and reporting requirements for selenium but do not include future selenium limits explicitly on the face of the permits must comply with water quality standards.

3. The Court FINDS that the WVDEP is authorized to temporarily suspend the requirement that permit holders comply with water quality standards. Therefore, the holders of permits which impose present monitoring and reporting requirements for selenium and selenium limits that go into effect at a later date are not required to comply with water quality standards in the interim period between issuance of their permits and the effective date of the selenium limits.

4. The Court accordingly GRANTS in part and DENIES in part Defendants’ motion for partial summary judgment (ECF No. 87), consistent with the above findings.

5. The Court FINDS that Bandmill’s discharges are covered by its WV/ NPDES Permit WV1015559 but also FINDS that Bandmill is liable for selenium violations at Outfall 001 of that permit. In accordance with these findings, the Court GRANTS in part and DENIES in part Plaintiffs’ motion for partial summary-judgment and for declaratory and injunctive relief and civil penalties against Bandmill (ECF No. 85). Specifically, the Court GRANTS the motion as to liability regarding Outfall 001 of this permit but DENIES as premature Plaintiffs’ claims regarding the number of violations and for injunctive relief, declaratory relief, and civil penalties. The Court DENIES Plaintiffs’ motion to the extent it asks this Court to find that Bandmill’s discharges were made without a permit. The Court also GRANTS in part and DENIES in part Bandmill’s motion for partial summary judgment (ECF No. 89).

6.The Court GRANTS in part and DENIES in part Plaintiffs’ motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Aracoma, Highland, Independence, and Kana-wha Energy (ECF No. 91). Specifically, the Court GRANTS the motion as to liability regarding: Outfalls 001 and 002 of Aracoma’s WV/NPDES Permit WV1010689; Outfall 004 of Independence’s WV/ NPDES Permit 1016890; and Outfall 007 of Kanawha Energy’s WV/ NPDES Permit WV1015176. However, Plaintiffs’ motion is DENIED regarding Outfalls 001 and 019 of Highland’s WV/NPDES Permit WV1016938. The Court DENIES as premature Plaintiffs’ claims regarding the number of violations and for injunctive relief, declaratory relief, and civil penalties. The Court DENIES Highland’s motion for partial summary judgment (ECF No. 93) and DENIES as moot Plaintiffs’ Rule 37(c) motion to strike Exhibit 1 of Highland’s reply brief in support of its motion for partial summary judgment (ECF No. 119).

7. The Court GRANTS in part and DENIES in part Plaintiffs’ motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Jacks Branch (ECF No. 83). Specifically, the Court GRANTS the motion as to liability regarding Outfalls 004, 014, and 015 of Jacks Branch’s WV/ NPDES Permit WV0093929 and Outfalls 002, 009, Oil, and 014 of Jacks Branch’s WV/NPDES Permit WV1012452. The Court DENIES as premature Plaintiffs’ claims regarding the number of violations and for injunctive relief, declaratory relief, and civil penalties. The Court GRANTS Jacks Branch’s motion for partial summary judgment as to Outfall 015 of Jacks Branch’s WV/ NPDES Permit WV1012452 (ECF No. 95). Also, the Court holds in ABEYANCE Jacks Branch’s motion for a partial stay pending entry of a consent decree (ECF No. 133).

8. The Court DIRECTS the parties to file a report regarding the status of the remaining claims, plans for disposition of those claims, and plans for phase II of this litigation within twenty-one (21) days of the entry of this Memorandum Opinion and Order.

I. Background

Plaintiffs OVEC, West Virginia Highlands Conservancy, Inc., and Sierra Club filed this case pursuant to the citizen suit provisions of the Federal Water Pollution Control Act (“Clean Water Act” or “CWA”), 33 U.S.C. § 1251 et seq., and the Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. § 1201 et seq. They allege that Defendants violated these statutes by discharging excessive amounts of selenium into the waters of West Virginia. This case implicates nine WV/ NPDES permits. Each permit is held by one of the seven Defendants: Alex Energy; Aracoma; Bandmill; Highland; Independence; Jacks Branch; and Kanawha Energy. Only some of the outfalls covered by these permits are the subject of the pending motions for partial summary judgment.

In Section II, the Court explains the legal standard applicable to motions for summary judgment. After discussing the relevant regulatory framework in Section III, the Court will summarize in Section IV the categories of permits involved in this case and determine the selenium requirements applicable to each permit. In Section V, the Court will analyze whether summary judgment should be granted as to each individual permit.

II. Legal Standard

To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the non-moving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

“ ‘[W]here the moving party has the burden- — the plaintiff on a claim for relief or the defendant on an affirmative defense— his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.’ ” Proctor v. Prince George’s Hosp. Ctr., 32 F.Supp.2d 820, 822 (D.Md.1998) (quoting Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986)). “Thus, if the movant bears the burden of proof on an issue, ... he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986) (emphasis in original). Having discussed the standard for review of motions for summary judgment, the Court now turns to the regulatory framework underlying this lawsuit.

III. Regulatory Framework

One primary goal of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 83 U.S.C. § 1251(a). To further this goal, the CWA prohibits the “discharge of any pollutant by any person” unless a statutory exception applies; the primary exception is the procurement of a National Pollutant Discharge Elimination System (“NPDES”) permit. 33 U.S.C. §§ 1311(a), 1342. Under the NPDES, the U.S. Environmental Protection Agency (“EPA”) or an authorized state agency can issue a permit for the discharge of any pollutant, provided that the discharge complies with the conditions of the CWA. 33 U.S.C. § 1342. A state may receive approval to administer a state-run NPDES program pursuant to 33 U.S.C. § 1342(b). West Virginia received such approval of its state-run NPDES program in 1982. 47 Fed.Reg. 22363-01 (May 24, 1982). The State’s NPDES program is currently administered by the WVDEP.

All West Virginia NPDES permits incorporate by reference West Virginia Code of State Rules § 47-30-5.l.f, which states in part that “discharges covered by a WV7 NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by [West Virginia Code of State Rules § 47-2].” States are required by the CWA to adopt water quality standards in order to “protect the public health or welfare, [and] enhance the quality of water,” and such water quality standards “shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation.” 33 U.S.C. § 1313(c)(2)(A). Each standard “shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” Id.

West Virginia’s water quality standards promulgated for the protection of aquatic life impose limitations on selenium. Specifically, selenium cannot exceed an acute limitation of 20 ug/1 or a chronic limitation of 5 ug/1. W. Va.Code R. § 47-2, app. E, tbl. 2, div. 8.27. The acute limitation is defined as a “[o]ne hour average concentration not to be exceeded more than once every three years on the average.” Id. § 47-2-9 n. 1. The chronic limitation is a “[f]our-day average concentration not to be exceeded more than once every three years on the average.” Id. n. 2.

In OVEC v. Fola Coal Company, LLC, this Court was asked to determine whether holders of WV/NPDES permits that incorporate § 47-30~5.1.f by reference are required to comply with the selenium limitations found in West Virginia’s water quality standards. No. 2:12-cv-3750, 2013 WL 6709957, at *10-21 (S.D.W.Va. Dec. 19, 2013). The Court examined two permits held by Fola, neither of which identified selenium as a pollutant whose presence must be monitored or limited. Both permits, however, incorporated by reference the WV/NPDES Rules for Coal Mining and Facilities found in Title 47, Series 30, of the West Virginia Code, including § 47-30-5.l.f. This incorporation by reference was in accordance with state rules, which require that the water quality standards rule of § 47-30-5.l.f — among other rules — “be incorporated into the WV/ NPDES permits either expressly or by reference.” W. Va.Code R. § 47-30-5; id. at *2. Relying in part on this Court’s earlier decision in OVEC v. Marfork Coal Company, Inc., 966 F.Supp.2d 667 (S.D.W.Va.2013), this. Court held that § 47-30-5.1f was an explicit and enforceable condition of Fola’s WV/NPDES permits and that Fola would not be protected by the permit shield defense if it violated this permit condition. Fola, 2013 WL 6709957, at *10-21; see also OVEC v. Elk Run Coal Company, Inc., No. 3:12-cv-0785, 2014 WL 29562, at *3-10 (S.D.W.Va. Jan. 3, 2014) (relying in part on this Court’s discussion of § 47-30-5.Ü in Marfork and Fola).

In addition to being subject to the CWA, coal mines are also subject to regulation under the SMCRA, which prohibits any person from engaging in or carrying out surface coal mining operations without first obtaining a permit from the Office of Surface Mining Reclamation and Enforcement (“OSMRE”) or an authorized state agency. 30 U.S.C. §§ 1211, 1256, 1257. A state may receive approval to administer a state-run surface mining permit program pursuant to 30 U.S.C. § 1253. West Virginia received conditional approval of its state-run program in 1981. 46 Fed.Reg. 5915-01 (Jan. 21, 1981). West Virginia’s surface mining permit program is administered by the WVDEP pursuant to the West Virginia Surface Coal Mining and Reclamation Act (“WVSCMRA”). W. Va. Code § 22-3-1 et seq. Regulations passed pursuant to the WVSCMRA require permit holders to comply with the terms and conditions of their permits and all applicable performance standards. W. Va.Code R. § 38-2-3.33.C. One of these performance standards requires that “[discharge from areas disturbed by surface mining shall not violate effluent limitations or cause a violation of applicable water quality standards.” Id. § 38-2-14.5.b. Another performance standard mandates that “[ajdequate facilities shall be installed, operated and maintained using the best technology currently available ... to treat any water discharged from the permit area so that it complies with the requirements of subdivision 14.5.b of this subsection.” Id. § 38-2-14.5.C.

IV. Permit Categories and the Selenium Requirements Applicable to Each Category

A. Summary of Permit Categories

In their shared motion for partial summary judgment, Defendants (except Alex Energy) move for summary judgment as to all of Plaintiffs’ claims, arguing that Defendants are shielded from liability because they are not required to comply with water quality standards, and because, therefore, their discharges comply with all permit terms. Defs.’ Mot. Summ. J., ECF No. 87; Defs.’ Mem. Supp. Mot. Summ. J., ECF No. 99. The Court need not reiterate its discussion of the permit shield defense or the applicability of water quality standards to the extent such issues were resolved in Fola, Marfork, and Elk Run. Instead, the Court will focus exclusively on the novel issues raised in the instant case. All of the permits in this case incorporate § 47-30~5.1.f by reference in the manner described above. The permits differ, however, in their references to selenium on the face of the permits. Before the Court can assess whether Defendants are liable for violations of their permits, the Court must determine the selenium requirements applicable to each permit. For the purposes of determining the applicable selenium requirements, it is helpful to sort the permits into four categories.

1. Permits with Present Selenium Limits on the Face of the Permits

Certain permits in this case include selenium limits which are currently in effect. These permits impose selenium discharge limits of 4.7 ug/1 as a monthly average and 8.2 ug/1 as a daily maximum. The parties do not dispute that liability for violations of these permits hinges solely on whether these limits have been exceeded. The following permits fall into this category: Jacks Branch’s WV/NPDES Permit WV0093929 and Jacks Branch’s WV/ NPDES Permit WV1012452.

2. Permits with Present Monitoring and Reporting Requirements and Future Selenium Limits

Permits in this group have both numeric selenium effluent limits that go into effect on a future specific date and present selenium monitoring and reporting requirements. The following permits fall into this category: Bandmill’s WV/NPDES Permit WV1015559 (which has selenium limits that go into effect on February 1, 2016) and Highland’s WV/NPDES Permit WV1016938 (which has selenium limits that go into effect on December 7, 2015, per the terms of its compliance schedule).

3.Permits with Monitoring and Reporting Requirements but No Later Selenium Limits

These permits have present selenium monitoring and reporting requirements on the face of the permit. They do not, however, have express selenium limits on the face of the permit or numeric effluent limits that go into effect on a later date. The following permits fall into this category: Jacks Branch’s WV/NPDES Permit WV0097217; Independence’s WV/NPDES Permit WV1016890; and Kanawha Energy’s WV/NPDES Permit WV1015176.

Jh Presents Which Do Not Expressly Mention Selenium

The following permits contain no express limits on selenium discharges and no express selenium reporting and monitoring requirements: Araeoma’s WV/ NPDES Permit WV1010689 and Alex Energy’s WV/NPDES Permit WV 1008277. Aracoma’s permit addresses selenium no differently than the permits at issue in Elk Run and Fola. In those cases, this Court held that § 47-30-5.1.Í was an explicit and enforceable permit condition and that the defendants would not be protected by the permit shield defense if they violated that permit condition. Elk Run, 2014 WL 29562, at *10; Fola, 2013 WL 6709957, at *11. Defendants here have not added any argument on this issue beyond that already explored in Fola and Elk Run. The Court FINDS that Fola and Elk Run control the analysis of Aracoma’s permit and that, therefore, the water quality standards provision is an explicit and enforceable condition of Aracoma’s permit.

Having discussed what selenium requirements apply to the first and last permit categories, the Court now turns to the more challenging task of determining the selenium requirements applicable to the other two categories of permits.

B. Examination of Permits with Present Monitoring and Reporting Requirements and Future Selenium Limits on Their Face

Defendants argue that, when operating under permits which contain future selenium limits and present monitoring and reporting requirements, they are not required to comply with the selenium limits set in West Virginia’s water quality standards. They point out that the portion of the permit that would otherwise list selenium limits instead reads “report only,” see, e.g., Bandmill’s WV/NPDES Permit WV1015559 at 2, ECF No. 87-1, and argue that the inclusion of selenium monitoring and reporting requirements in this manner trumps the more general part of the permit which incorporates by reference the water quality standards. Defendants additionally point out that the selenium limits which go into effect in the future — a monthly average of 4.7 ug/1 and a daily maximum of 8.2 ug/1 — are stricter than the limits mandated by the water quality standards. Based on this, they argue, compliance with these stricter limits in the future will mean compliance with water quality standards. In assessing the parties’ arguments on this issue, the Court must first consider whether the WVDEP has the legal authority to suspend the requirement that a permit holder comply with water quality standards. Second, having determined the scope of the WVDEP’s power, the Court will determine what effect the permit language has on Defendants’ requirements.

State law requires that § 47-30-5.1.f be incorporated into all permits. W. Va.Code R. § 47-30-5 (“The following conditions apply to all WV/NPDES permits. All conditions shall be incorporated into the WV/NPDES permits either expressly or by reference.”). However,

Nothing in subsection 5.1[ ] of this rule shall be construed to limit or prohibit any other authority the Secretary may have under Article 3 or Article 11 of Chapter 22 [of] the West Virginia Code or to relieve the permittee from any responsibilities, liabilities or penalties for not complying with 47 C.S.R. 2 and 47 C.S.R. 11.

W. Va.Code R. § 47-30-5.1.g. Article 11 of Chapter 22 states, in pertinent part,

All persons affected by rules establishing water quality standards and effluent limitations shall promptly comply therewith: Provided, That: (1) Where necessary and proper, the secretary may specify a reasonable time for persons not complying with such standards and limitations to comply therewith.... W. Va.Code § 22-11-6 (emphasis in original).. These provisions together indicate that the WVDEP may exercise its power to temporarily exempt a permit holder from the requirement to comply with water quality standards, but that it cannot indefinitely or permanently exempt a permit holder from this requirement. This interpretation makes practical sense — it recognizes that some permit holders may need extra flexibility as they attempt, in good faith, to achieve water quality standards but that eventually all permit holders should be held to the same baseline standard.

The WVDEP’s ability to temporarily suspend the requirement that a permit holder comply with water quality standards accords not only with state law but with federal law as well. As explained earlier, West Virginia has a state-run NPDES program, approved by the EPA and administered by the WVDEP. The water quality standards at issue here are not federally-imposed but instead were passed pursuant to state authority granted under federal law. Because the state authority created the water quality standards, it makes sense that the state may also suspend compliance therewith, within state-prescribed limits. The state-prescribed limitation here is that the WVDEP may specify a “reasonable time” for persons not complying with those standards to come into compliance. In other words, the water quality standards under state law expressly contemplate the possibility that the WVDEP may temporarily suspend their applicability for a given permit holder. Therefore, the imposition of that “reasonable time” to come into compliance does not violate the CWA.

Having determined that the WVDEP has the authority to temporarily suspend the requirement that a permit holder comply with water quality standards, the Court next turns to whether the WVDEP did in fact do so in the permits at issue. The Court will consider whether there are any conflicts among or ambiguity within the permit provisions. Monitoring and reporting requirements cannot, on their own, conflict with selenium limits because such requirements are not effluent limits:

The term ‘effluent limitation’ means any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance.

33 U.S.C. § 1362(11) (emphasis added). Monitoring and reporting requirements are not restrictions on selenium and, therefore, do not meet this definition. To support their argument to the contrary, Defendants point to 33 U.S.C. § 1365(f). That provision states, in pertinent part, that:

For purposes of this section, the term “effluent standard or limitation under this chapter” means ... (6) a permit or condition thereof issued under section 1342 of this title, which is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title)....

33 U.S.C. § 1365(f) (emphasis added). According to its terms, this definition applies only for the purposes of Section 1365, which deals with citizen suits, meaning that a citizen can sue to enforce a monitoring and reporting requirement found in a permit. This provision does not mean, however, that monitoring and reporting requirements are effluent limits for general CWA purposes.

Although monitoring and reporting requirements are not “effluent limits,” the Court nonetheless finds that the wording of this category of permits — with then-present monitoring and reporting requirements coupled with future selenium limits — is ambiguous overall. Plaintiffs suggest that there is no ambiguity because being required to follow water quality standards now does not prevent Highland and Bandmill from following the more stringent selenium limits set out for the future. However, the future effective date for selenium compliance creates an ambiguity — it could mean that Highland and Bandmill must comply with water quality standards in the interim or it could mean that Highland and Bandmill need not comply now as long as they meet the future limits.

When the WVDEP reissued Highland’s permit with a compliance schedule, the WVDEP had determined that Highland’s outlets emitted selenium in concentrations that violated water quality standards. WV/NPDES Permit WV1016938 at 48, ECF No. 87-2. The reissued permit contained a compliance schedule in order to allow time for Highland to come into compliance with selenium limits. It is this overall context — delayed effluent limits outlined in the permit coupled with water quality standards (which include selenium limits) incorporated by reference into the permit — that creates ambiguity. Because the permit is ambiguous, the Court will look outside the terms of the permit for guidance on how the permit should be interpreted. See Poling v. Pre-Paid Legal Servs., Inc., 212 W.Va. 589, 575 S.E.2d 199, 207 (2002) (noting that parole evidence is admissible when contract is ambiguous). The Court can, therefore, consider the Rationale Page that accompanies Highland’s permit. WV/NPDES Permit WV1016938 at 48-50. The Rationale Page states, in pertinent part, as follows:

In the past, Selenium was included on this permit as report only. New findings indicate that; [sic] based on DMR reports for this permit, it is noted that Rp exist for this parameter on outlets 001 and 019. This data indicated that outlets 001 and 019 regularly exhibit selenium concentrations greater than the water quality standard of 5 ug/1. The company is being issued a compliance schedule for outlets 001 and 019; [sic] to allow time to come into compliance for this parameter. Id. at 48. This shows that the WVDEP, in reissuing the permit together with a compliance schedule, intended to exempt Highland from the requirement to comply with selenium limits until December 7, 2015, when a monthly average of 4.7 ug/1 and a daily maximum of 8.2 ug/1 go into effect, except as specific milestones within the compliance schedule may require otherwise. West Virginia law provides the WVDEP with the authority to temporarily suspend the requirement that a permit holder comply with selenium water quality standard limits in this manner and for this reason. If Highland abides by that schedule, then Highland is being given “a reasonable time” to comply with the selenium limits set in its reissued permit, and it will not be in violation of state law. The Rationale Page clears up the permit’s ambiguity. The Court finds that Highland is, therefore, temporarily exempted from the requirement to comply with selenium limits, in line with the compliance schedule included in the reissued permit. Highland is not required to comply with the selenium limits set by-the water quality standards in the interim period after the re-issuance of the permit and before the stricter selenium limits go into effect in the future.

Bandmill’s permit is also ambiguous, and so the Court will look to the Rationale Page accompanying this permit as well. WV/NPDES Permit WV1015559 at 14-15, ECF No. 87-1. The Rationale Page states, “Monitor and report only requirements for selenium are hereby imposed at outlet[ ] 001 ... for a period of 27 months following the effective date (November 1, 2013).” Id. at 14. Additionally, “[b]egin-ning with the 28th month following the effective date hereof, selenium limits of 4.7 ug/1 (monthly average) and 8.2 ug/1 (daily maximum) shall take effect at outlet 001.... ” Id. Although Bandmill’s Rationale Page does not include the same level of explanation as Highland’s and does not make an explicit finding that selenium has been a problem for Bandmill, it nonetheless demonstrates that the WVDEP intended to temporarily delay the effective date of Bandmill’s otherwise-required compliance with selenium limits. Therefore, Bandmill is not required to comply with the selenium limits set by the water quality standards in the interim period after the issuance of the permit and before the stricter selenium limits go into effect in the future.

C. Examination of Permits with Monitoring and Reporting Requirements but No Later Selenium Limits on Their Face

Although the state rules contemplate that the WVDEP may temporarily suspend the requirement that a permit holder comply with water quality standards, those rules do not suggest that the WVDEP may indefinitely or permanently do so. See W. Va.Code § 22-11-6(1) (‘Where necessary and proper, the secretary may specify a reasonable time for persons not complying with such standards and limitations to comply therewith....”). Therefore, it would be impermissible for the WVDEP to impose only monitoring and reporting requirements for selenium— but no selenium limits — for the entire duration of a permit, thereby exempting the permit holder from complying with the permit condition incorporating water quality standards. Furthermore, because monitoring and reporting requirements are not themselves effluent limits, for the reasons explained above, the monitoring and reporting requirements do not conflict with the inclusion by reference of § 47-30-5.1.f. Both apply; therefore, the holders of such permits must comply with the selenium limits imposed by West Virginia’s water quality standards.

This finding does not conflict with the Court’s finding above regarding the Band-mill and Highland permits. For those two permits, the WVDEP exercised its authority under West Virginia law to temporarily suspend the requirement that permit holders comply with selenium limits. This Court’s recognition of the WVDEP’s power to temporarily suspend compliance does not mandate a similar finding with regard to an indefinite suspension of selenium limits. Indeed, such a finding would violate West Virginia law. Therefore, the holders of permits which do not contain future selenium limits must comply with the selenium water quality standards promulgated by West Virginia.

For the reasons explained above, the Court GRANTS in part and DENIES in part Defendants’ shared motion for partial summary judgment. Having decided what selenium limits apply to each permit, the Court now turns to whether summary judgment is warranted regarding any of the permits in this case.

V. Summary Judgment as to Each Permit

A. Aracoma’s WVINPDES Permit WV1010689

Aracoma’s WV/NPDES Permit WV1010689 incorporates by reference the requirement found in West Virginia Code of State Rules § 47-30-5.1.f that discharges shall not violate applicable water quality standards. The Complaint alleges selenium violations at sixteen outfalls covered by this permit. Compl. ¶80, ECF No. 1. Pursuant to a subsequent stipulation, Plaintiffs are no longer pursuing claims related to many of those outfalls. Stipulation, ECF No. 33. As a result, the only remaining claims under this permit relate to Outfalls 001, 002, 005, and 044. Id. Plaintiffs move for partial summary judgment in their favor as to liability regarding Outfalls 001 and 002. Pis.’ Mot. Summ. J., ECF No. 91; Pis.’ Mem. Supp. Mot. Summ. J. 21-23, ECF No. 100.

In deciding whether summary judgment should be granted as to liability, first the Court will determine whether the standing requirements have been satisfied. Next, the Court will examine whether the sixty days’ notice requirement is met. Then the Court will consider whether the Complaint contains a good-faith allegation of continuous or intermittent violation. Lastly, the Court will determine if Plaintiffs have proven selenium violations sufficient to establish liability. The Court will follow this same pattern&emdash;with minor modification&emdash; when analyzing subsequent permits in this Memorandum Opinion and Order.

1. Legal Standing

In order to bring any action in federal court, a plaintiff must have standing&emdash;that is, a plaintiff must have a sufficient personal stake in the outcome of the matter being litigated to make it justicia-ble under Article III of the Constitution. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. (“Gaston Copper 7”), 204 F.3d 149, 153 (4th Cir.2000); see also U.S. Const. art. III (restricting federal courts to adjudicating “cases” and “controversies”). In order to satisfy the minimum constitutional requirements for standing, an individual plaintiff must demonstrate:

(1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In environmental cases, “a plaintiff need only show that he used the affected area, and that he is an individual ‘for whom the aesthetic and recreational values of the area [are] lessened’ by the defendant’s activity.” Piney Run Pres. Ass’n v. Cnty. Commis. of Carroll Cnty., MD, 268 F.3d 255, 263 (4th Cir.2001) (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). Furthermore, “[t]he relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff.” Laidlaw, 528 U.S. at 181, 120 S.Ct. 693.

As this Court explained in OVEC v. Maple Coal Company, a court is not required to determine the merits of the environmental violations alleged when deciding if standing exists. 808 F.Supp.2d 868, 882 (S.D.W.Va.2011) (citing Laidlaw, 528 U.S. at 181, 120 S.Ct. 693). “What [standing] does require is a demonstration that if the allegations of Clean Water Act violations are true, the impacts of the alleged violations are felt in an area with which the plaintiffs have ‘a direct nexus.’ ” Id. (citing Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. (“Gaston Copper II”), 629 F.3d 387, 395 (4th Cir.2011)). Plaintiffs “may rely on circumstantial evidence such as proximity to polluting sources, predictions of discharge influence, and past pollution to prove both injury in fact and traceability.” Gaston Copper I, 204 F.3d at 163. To require more would contravene the otherwise “straightforward Clean Water Act issue of whether [the defendant] has violated its permit limitations,” thereby “throw[ing] federal legislative efforts to control water pollution into a time warp by judicially reinstating the previous statutory regime in the form of escalated standing requirements.” Id. at 163-64.

When the plaintiff in question is an organization, that organization “has standing to sue on behalf of its members when ‘(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’” Am. Canoe Ass’n, Inc. v. Murphy Farms, Inc., 326 F.3d 505, 517 (4th Cir.2003) (quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).

Outfall 001 discharges into Camp Branch of Dingess Run of the Guyandotte River. Outfall 002 discharges into one or more unnamed tributaries of Dingess Run. Plaintiffs allege legal standing as to Outfalls 001 and 002 through Kenneth King and Cindy Rank. See Kenneth King Deck, ECF No. 91-22; Cindy Rank Decl., ECF No. 91-23; Kenneth King Dep., ECF No. 91-28; Cindy Rank Dep., ECF No. 91-29. Mr. King is a member of OVEC and Sierra Club, but not the West Virginia Highlands Conservancy. King Dep. 9-10. He used to seine for minnows in Dingess Run, but he no longer does so because the minnow population has dropped. King Deck ¶7. He believes this drop is attributable to selenium in the water. Id. Mr. King states that he recreationally “visited the Camp Branch drainage and the unnamed tributary affected by Aracoma’s operations on Camp Branch approximately 50 times in [his] life,” but his “visits to those drainages stopped once mining began.” Id. ¶ 9. Mr. King asserts he is concerned about selenium pollution in these areas and that he “would return to those watersheds again if permitted to do so.” Id. ¶ 10. He lives on Dingess Run just a few miles downstream from where Camp Branch enters Dingess Run, and his knowledge of selenium pollution impairs his enjoyment of living near the stream. Id. ¶ 11. Cindy Rank is a member of all three plaintiff organizations. Rank Dep. 7-8. Ms. Rank has visited the Dingess Run area several times since 1997 to observe the stream and wildlife. Rank Deck ¶ 11. She is distressed by selenium pollution in the area. Id. ¶ 12. She plans to return to Dingess Run, likely once a year in the future. Id. ¶ 16. These allegations are sufficient to confer standing on Plaintiffs as to Outfalls 001 and 002.

2. Sixty Days’ Notice

Under the CWA and the SMCRA, no citizen suit may be commenced prior to the provision of sixty days’ notice to the alleged violator, the Administrator of the EPA (for CWA citizen suits) or the Secretary of the Department of the Interior (for SMCRA citizen suits), and the State in which the alleged violation occurs. 30 U.S.C. § 1270(b)(1)(A); 33 U.S.C. § 1365(b)(1)(A). Plaintiffs sent a letter to the appropriate recipients which provided the necessary details for valid notice of suit on April 23, 2012, see ECF No. 91-34, and this lawsuit commenced over sixty days later, on July 16, 2012. Plaintiffs meet the sixty days’ notice requirement, and Defendants do not argue otherwise.

3. Goodr-Faith Allegation in Complaint of Continuous or Intermittent Violation

As explained above, Plaintiffs bring their claims under the citizen suit provisions of the CWA and the SMCRA. The CWA’s citizen suit provision states,

[A]ny citizen may commence a civil action on his own behalf ... (1) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation....

33 U.S.C. § 1365(a). Under the SMCRA’s citizen suit provision,

[A]ny person having an interest which is or may be adversely affected may commence a civil action on his own behalf to compel compliance with this chapter ... against any other person who is alleged to be in violation of any rule, regulation, order or permit issued pursuant to this subchapter....

30 U.S.C. § 1270(a). The Supreme Court has interpreted the phrase “alleged to be in violation” — which appears in both the CWA and the SMCRA provisions above— to require “that citizen-plaintiffs allege a state of either continuous or intermittent violation — that is, a reasonable likelihood that a past polluter will continue to pollute in the future.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (“Gwaltney II”).

“[A] good-faith allegation [of continuous or intermittent violation] ... suffice[s] for jurisdictional purposes....” Id. at 65, 108 S.Ct. 376. The issue of what evidence must be shown for jurisdictional purposes is distinct from what evidence must be shown for a defendant to ultimately be held liable for violations of the CWA and the SMCRA. See Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171 (4th Cir.1988) (“Gwaltney III”) (on remand from the Supreme Court, drawing a distinction between “a good faith allegation of ongoing violation sufficient to maintain jurisdiction” and “proving] [an] allegation of continuous or intermittent violations, as required in order to prevail”). The Supreme Court specifically rejected the proposition that “citizen-plaintiffs must prove their allegations of ongoing noncompliance before jurisdiction attaches.” Gwaltney II, 484 U.S. at 64, 108 S.Ct. 376. Good-faith allegations, not definitive proof, suffice for jurisdictional purposes. Id. at 65, 108 S.Ct. 376. To meet the jurisdictional requirements, Plaintiffs must show that at the time they filed suit, they had a good-faith belief that each Defendant was in continuous or intermittent violation of the CWA and the SMCRA. In a jurisdictional sense, then, this good-faith belief is an element of each of Plaintiffs’ claims.

Accordingly, the Court must consider what constitutes a sufficient good-faith belief for jurisdictional purposes. In the district court case which eventually gave rise to the Supreme Court’s Gwaltney II decision, the Eastern District of Virginia considered this question:

A useful analogy [for understanding good-faith belief] is the manner in which the federal courts treat the jurisdictional amount requirement in diversity cases....

In diversity cases, the question whether the jurisdictional amount is satisfied&emdash; and whether the court, ultimately, has jurisdiction&emdash;is not answered by whether the plaintiff ultimately recovers in excess of $10,000. Rather, the issue is whether the amount plaintiff stated in the original claim satisfies the amount, and is made in good faith.... [T]he test of good faith is whether it appears to be a “legal certainty” that the jurisdictional fact is not satisfied.

Chesapeake Bay Found, v. Gwaltney of Smithfield, Ltd., 611 F.Supp. 1542, 1549 n. 8 (E.D.Va.1985) (emphasis in original) (citations omitted) (“Gwaltney I ”), aff'd, 791 F.2d 304 (4th Cir.1986), vacated on different grounds sub nom., Gwaltney II, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). In Gwaltney I, the district court found that “there was no certainty ...&emdash; legal, factual, or otherwise&emdash;that [the defendant’s] system would correct one of the two major violation problems for which this suit was brought&emdash;until nearly one year after the suit was filed.” Id. at 1549 n. 8. Therefore, the plaintiffs in that case had sufficiently pled a violation in good faith.

Plaintiffs Complaint includes Appendix B, which is a table of violations of Aracoma’s WV/NPDES Permit WV1010689. App. B, ECF No. 1-1 at 3. For Outfall 001, the most recent alleged violation prior to the filing of the Complaint is a measurement of 23.4 ug/1 on May 12, 2010, which would be a violation of the acute standard. For Outfall 002, the most recent measurement provided from prior to the filing of the Complaint is a measurement of 16.6 ugfi on May 12, 2010. There was also a measurement of 33.7 ug/1 at that Outfall on October 6, 2009. The measurements of 23.4 ug/1 and 33.7 ug/1 would constitute violations of the acute standard. Plaintiffs also allege an “absence of any evidence that Aracoma has made any efforts to prevent future similar selenium-laden discharges from the Outfalls identified above.” Compl. ¶ 83. Although there is a significant lapse in time from the evidence of last violation to the filing of the Complaint for Outfalls 001 and 002, in the face of this evidence it is not a legal certainty that Aracoma had corrected its alleged problems at Outfalls 001 or 002. Therefore, Plaintiffs’ Complaint sufficiently pleads, in good faith, an ongoing or continuous violation at Outfalls 001 and 002.

A Evidence Establishing Liability

Lastly, the Court considers whether Aracoma is actually liable for a violation of water quality standards. CWA liability can be established in two ways:

Citizen-plaintiffs may [prove an ongoing violation] either (1) by proving violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or spo-radie violations. Intermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition.

Gwaltney III, 844 F.2d at 171-72; see also Fola, 2013 WL 6709957, at *24-25. Plaintiffs are not required to establish pre-Complaint violations in order to prevail, and neither are Plaintiffs required to prove the pre-Complaint violations alleged as a basis for jurisdiction in the Complaint. Id.

Plaintiffs present post-Complaint evidence sufficient to show at least one violation of water quality standards at each of Outfalls 001 and 002. For Outfalls 001 and 002, Plaintiffs present post-Complaint measurements from an inspection under Federal Rule of Civil Procedure 34, during which measurements were taken daily from July 29, 2013, to August 3, 2013. These measurements establish at least one chronic violation and one acute violation for Outfall 001. ECF No. 91-17 (showing a chronic measurement as high as 22 ug/1 and an acute measurement as high as 24 ug/1). They establish the same for Outfall 002. Id. (showing a chronic measurement as high as 19 ug/1 and an acute measurement as high as 21 ug/1). Aracoma does not contest the evidence presented regarding these outfalls. The Court finds that Aracoma is liable for at least one violation of water quality standards at each of Outfalls 001 and 002. The Court accordingly GRANTS in part Plaintiffs’ motion for partial summary judgment, ECF No. 91, specifically GRANTING the motion as to liability regarding Outfalls 001 and 002.

B. Bandmill’s WV/NPDES Permit WV1015559

Bandmill’s discharges in the area of the Tower Mountain Surface Mine involve a unique situation compared to the other Defendants in this case. Namely, Plaintiffs argue that Bandmill’s discharges are not covered by any permit and also argue, in the alternative, that even if Bandmill’s discharges are covered by its permit, those discharges violate the permit terms. Plaintiffs came to present these two alternative arguments through an unusual timeline of events, as explained below.

Bandmill holds WV/NPDES Permit WV1015559, which covers activities at the Tower Mountain Surface Mine and authorizes discharges from Outfall 001 into Burgess Branch of the Guyandotte River. Plaintiffs allege in their Complaint, filed on July 16, 2012, that Bandmill’s discharges from Outfall 001 violate water quality standards. On October 24, 2012, a few months after the Complaint was filed, the WVDEP re-issued Bandmill’s permit. On November 19, 2012, OVEC and Sierra Club filed a Notice of Appeal with the West Virginia Environmental Quality Board (“EQB”), seeking to modify the re-issued permit to “include enforceable selenium limits which will ensure compliance with all applicable water quality standards.” Notice Appeal at 1, ECF No. 89-3. At the time of appeal, neither party realized that the same permit was simultaneously the subject of the EQB appeal and this lawsuit.

In the course of discovery for the instant case, counsel for Bandmill stated that the sediment control pond for Outfall 001 had been fully reclaimed and removed. Based on this revelation, Plaintiffs commenced a separate lawsuit against Bandmill on April 2, 2013, arguing — based on the same discharges that formed the basis of the original Complaint — that because the sediment pond had been fully reclaimed, those discharges were made without a permit. OVEC v. Bandmill Coal Corp., No. 2:13-cv-6870 (S.D.W.Va.). That newer case was consolidated with the instant case on May 22, 2013. OVEC v. Alex Energy, Inc., No. 3:12-cv3412, ECF No. 52 (S.D.W.Va.).

In October 2013, the parties reached an agreement regarding the EQB appeal. The Agreed Final Order encompassing their agreement for modification of Band-mill’s permit imposed immediate monitoring and reporting requirements for selenium and selenium limits that would go into effect on February 1, 2016. Agreed Final Order, ECF No. 89-5.

Bandmill has moved for partial summary judgment, arguing that it has not made unpermitted discharges and that its modified permit moots Plaintiffs’ claims for injunctive and declaratory relief. Bandmill’s Mot. Summ. J., ECF No. 89; Bandmill’s Mem. Supp. Mot. Summ. J., ECF No. 90. Plaintiffs have moved for partial summary judgment against Band-mill, arguing that Bandmill’s discharges are not covered by any permit, and that, even if they are covered by a permit, they violate water quality standards. Pis.’ Mot. Summ. J. Against Bandmill, ECF No. 85; Pis.’ Mem. Supp. Mot. Summ. J. Against Bandmill, ECF No. 98. The Court will first decide if Bandmill has been making unpermitted discharges. If this question is answered in the negative, then the Court will address whether Bandmill’s discharges&emdash;although covered by the permit&emdash;nonetheless violate the permit’s terms.

1. Alleged Unpermitted Discharges by Bandmill

It is undisputed that the sediment pond associated with Outfall 001 has been reclaimed and removed. There was confusion among the parties, however, concerning whether Outfall 001 had been deleted from Bandmill’s permit as a result of the Outfall’s reclamation and removal. It is now clear that Outfall 001 is still part of this permit. In fact, although Bandmill petitioned to delete Outfall 001 from the permit, the WVDEP refused to remove Outfall 001 from the permit because the Agreed Final Order from the EQB imposed reporting requirements and future selenium limits. Email from WVDEP (Nov. 4, 2013), ECF No. 89-7. Bandmill argues that, in light of this refusal, its discharges from Outfall 001 are made pursuant to a valid permit.

Plaintiffs counter that Bandmill’s selenium-laden discharges are not actually emanating from Outfall 001, but rather from Valley Fills IR and 1L, allegedly located a “substantial distance” from where Outfall 001 used to be. See ECF No. 111-4 (map showing valley fills and Outfall 001). They argue that Bandmill is only permitted to discharge into Burgess Branch at the former location of Outfall 001, which is half a mile downstream of the valley fill discharges. Plaintiffs further argue that once Outfall 001 was removed, its authorization under Section A of the permit stopped. In support of their arguments, Plaintiffs also point out that DMRs filed by Bandmill since Outfall 001’s reclamation list “no flow” for that outfall. ECF No. 111-6.

In resolving this dispute, the Court first notes that Bandmill is not bound by earlier statements regarding Outfall 001 that turned out to be mistaken. It is clear that the parties were confused by Outfall 001’s reclamation, removal, and possible deletion from the permit, and those earlier misstatements were excusable and caused no harm. Therefore, Bandmill is not bound by those statements.

Furthermore, the Court finds that the discharges from this area are not unper-mitted. In other words, the discharges are covered by the permit. The Court recognizes that this situation is a bit of an anomaly, but it has given significant weight to the WVDEP’s refusal to remove Outfall 001 from the permit. The Court therefore GRANTS in part Bandmill’s motion for partial summary judgment and DENIES in part Plaintiffs’ motion for partial summary judgment as to the issue of whether the discharges near Outfall 001 are covered by the permit.

2. Discharges by Bandmill Alleged to be in Violation of Permit’s Terms

Having decided that Bandmill’s discharges are covered by the existing permit, the Court now determines if those covered discharges violate the permit’s terms. Plaintiffs argue that the modified terms of Bandmill’s permit, based on the Agreed Final Order, do not excuse Band-mill from complying with the water quality standards before the stricter limits go into effect. Bandmill argues that the water quality standards language — a boilerplate provision — does not apply in light of the more specific future selenium limitations, placed more prominently in the permit after negotiation. As explained above, the WVDEP has the authority to temporarily suspend the requirement that a permit holder comply with water quality standards, and the WVDEP has done so with this permit. Therefore, Bandmill is not required to comply with the 5 ug/1 chronic selenium limit and 20 ug/1 acute selenium limit set by West Virginia’s water quality standards in the interim period between issuance of Bandmill’s modified permit and the effective date of the future selenium limits. Because of this, Bandmill is not liable for selenium discharges made after October 11, 2013 — when the Agreed Final Order was entered — but before the effluent limits go into effect on February 1, 2016. The Court must consider, however, if Bandmill violated the water quality standards after the Complaint was filed on July 16, 2012, but before the Agreed Final Order was entered on October 11, 2013.

3. Legal Standing

Plaintiffs allege legal standing through Cindy Rank and Vivian Stockman. Cindy Rank Deck, ECF No. 85-10; Vivian Stockman Deck, ECF No. 85-11; Cindy Rank Dep., ECF No. 85-12; Vivian Stockman Dep., ECF No. 85-13. The Tower Mountain Surface Mine discharges into Burgess Branch of Right Hand Fork of Rum Creek of the Guyandotte River. Ms. Rank is a member of all three plaintiff organizations. Rank Dep. 7-8. She visits the Rum Creek watershed at least once a year, during which visits she enjoys “the less impacted stream stretches,” climbs into the stream, and observes wildlife. Rank Deck ¶ 19. Ms. Rank is troubled by selenium discharges in the area and plans to return to the Rum Creek watershed “probably at least once a year.” Id. ¶¶ 19, 20. Ms. Stockman is also a member of all three plaintiff organizations. Stockman Dep. 6-7. She has visited the Rum Creek area approximately ten times and will visit at least three times in the next two years. Stockman Deck ¶ 31. During these visits, Ms. Stockman attempts to enjoy the stream, but her enjoyment is diminished because of selenium pollution in the area. Id. ¶ 32. Bandmill does not argue that these allegations are insufficient to support standing. Standing is satisfied here.

k. Sixty Days’ Notice

Plaintiffs sent a letter to the appropriate recipients which provided the necessary details for valid notice of the original lawsuit on April 23, 2012, see ECF No. 85-14, and this lawsuit was commenced over sixty days later. Plaintiffs meet the sixty days’ notice requirement, and Defendants do not argue otherwise.

5. Good-Faith Allegation in Complaint of Continuous or Intermittent Violation

The only pre-Complaint evidence of a violation is a single sampling from June 15, 2011, by the WVDEP’s Watershed Assessment Branch, which measured a selenium concentration of 27.6 ug/1 in Burgess Branch. Compl. ¶ 89. That measurement violates the acute selenium limit of 20 ug/1 set by the water quality standards. Plaintiffs also point to the “absence of any evidence that Bandmill has made any efforts to prevent future similar selenium-laden discharges.” Id. ¶ 92. Plaintiffs’ Complaint sufficiently pleads, in good faith, a continuous or intermittent violation at Outfall 001.

6. Evidence Establishing Liability

Again, for the reasons explained above, Bandmill can only be held liable for violations of the water quality standards which were committed after the Complaint was filed on July 16, 2012, but before the Agreed Final Order was entered on October 11, 2018. Plaintiffs present evidence from their Rule 84 inspection which shows multiple violations of the chronic and acute limits based on daily sampling from July 8 to July 13, 2013. ECF No. 85-9. For example, Downstream Strategies measured a selenium concentration of 26 ug/1 on July 13, 2013, at Valley Fill 1L and a four-day average of 23.25 ug/1 at that same location. Id. Bandmill does not dispute the accuracy of this sampling. Plaintiffs have established at least one selenium violation at Outfall 001.

7. Bandmill’s Motion for Partial Summary Judgment

Bandmill has moved for partial summary judgment, arguing that it has not made unpermitted discharges and that its modified permit moots Plaintiffs’ claims for injunctive and declaratory relief. The Court has already found that Bandmill’s discharges were covered by its existing permit. Additionally, it is premature to rule at this time that Plaintiffs’ claims for injunctive and declaratory relief are mooted. Phase II addresses such relief. The Court therefore DENIES Bandmill’s motion to the extent it argues that Plaintiffs’ claims for declaratory and injunctive relief are moot.

In summary, the Court FINDS that Bandmill’s discharges are covered by its WV/NPDES Permit WV1015559 but also FINDS that Bandmill is liable for selenium violations at Outfall 001 of that permit. In accordance with these findings, the Court GRANTS in part and DENIES in part Plaintiffs’ motion for partial summary judgment against Bandmill. Specifically, the Court GRANTS the motion as to liability regarding Outfall 001 of this permit. The Court DENIES Plaintiffs’ motion to the extent it asks this Court to find that Bandmill’s discharges were made without a permit. The Court also GRANTS in part and DENIES in part Bandmill’s motion for partial summary judgment.

C. Highland’s WVJNPDES Permit WV1016938

Highland’s WV/NPDES Permit WV1016938 incorporates by reference West Virginia Code of State Rules § 47-30-5.1.Í, requiring that discharges shall not violate applicable water quality standards. The Complaint alleges selenium violations at three outfalls covered by this permit: Outfalls 001, 019, and 020. Outfalls 001 and 020 discharge into one or more unnamed tributaries of Freeze Fork of Din-gess Run of the Guyandotte River. Outfall 019 discharges into Freeze Fork. Plaintiffs move for partial summary judgment regarding Highland’s liability for violations at Outfalls 001 and 019. ECF Nos. 91, 100. Highland moves for summary-judgment on the grounds that its re-issued permit moots Plaintiffs’ claims for declaratory and injunctive relief regarding Outfalls 001, 019, and 020. Highland’s Mot. Summ J., ECF No. 93; Highland’s Mem. Supp. Mot. Summ. J., ECF No. 94. The Court will address Plaintiffs’ motion before turning to Highland’s.

As explained earlier, under the terms of Highland’s modified permit, the WVDEP has temporarily suspended the requirement that Highland comply with water quality standards and has imposed effluent limitations on selenium that go into effect in 2015. The Court therefore holds that Highland cannot be liable for selenium violations which occurred after the permit was re-issued in December 2012. However, Highland can be held liable for water quality standard violations which occurred between the filing of the Complaint on July 16, 2012, and the re-issuance of its permit on December 6, 2012.

1.Legal Standing

Plaintiffs allege standing through Kenneth King and Cindy Rank, the same declarants used to establish liability for the Aracoma permit. Mr.