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State ex rel. ERP Environmental Fund, Inc. v. McGraw

Supreme Court of West Virginia

October 5, 2017

STATE OF WEST VIRGINIA ex rel. ERP ENVIRONMENTAL FUND, INC., Petitioners
v.
HONORABLE WARREN D. MCGRAW, Judge of the Circuit Court of Wyoming County, West Virginia; WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; AUSTIN CAPERTON, in his role as Cabinet Secretary of the West Virginia Department of Environmental Protection; AVARY H. & BETTY JO BAILEY; JASON A. & RONCHESKI BAILEY; NEWMAN & KATHERINE BROWN; ALGIE D. & KATHERINE COOK; ALGIE R. & PEGGY ANN COOK; DENNIS L. COOK, JR. & MICHELLE COOK; DENNIS L. COOK, SR. & BRENDA K. COOK; WILLIAM C. & REGINA COOK; DONNA FRALEY; MAYBETH FRALEY; WESTLEY & JUDY FRALEY; DOYLE LEE & PHYLLIS JOHNSON; GLEN & MARY JOHNSON; ELIZABETH L. KENNEDY; WILLIAM D. & JENNY LAFFERTY; MICHAEL E. MARCUM; HELEN M. MCGINNIS; ONNIE & VIRGINIA PAYNTER; EARL R. PELPHREY; LARRY & BECKY REED; EVERETT & FREDA SMITH; WILLIAM L. & JESSICA N. STEPP; JACQUELYN A. WHITLEY; BILLY RAY WILLARD; TEDDY & DOROTHY WYKLE, Respondents

          Submitted: September 12, 2017

         Petition for Writ of Prohibition WRIT GRANTED

          Ancil G. Ramey, Esq. Steptoe & Johnson PLLC Huntington, West Virginia John J. Meadows, Esq. Peter J. Raupp, Esq. Devon J. Stewart, Esq. Steptoe & Johnson PLLC Charleston, West Virginia Counsel for Petitioners

          Jason Wandling, Esq. West Virginia Department of Environmental Protection, Office of Legal Services Charleston, West Virgnia Counsel for DEP and Austin Caperton

          Kevin W. Thompson, Esq. David R. Barney, Jr., Esq. Thompson Barney Charleston, West Virginia Counsel for Individual Respondents

          SYLLABUS

         1. "A de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus." Syl. Pt. 1, Harrison Cty. Comm'n v. Harrison County Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).

         2. "Mandamus lies to require the discharge by a public officer of a nondiscretionary duty." Syl. Pt. 3, State ex rel. Greenbrier Cty. Airport Auth. v. Hanna, 151 W.Va. 479, 153 S.E.2d 284 (1967).

         3. A finding by the West Virginia Department of Environmental Protection of contamination, diminution, or interruption to an owner's water supply is a prerequisite to the issuance of any water replacement relief under the West Virginia Surface Coal Mining and Reclamation Act, West Virginia Code §§ 22-3-1 to -38 (2014 & Supp. 2017).

          OPINION

          LOUGHRY, Chief Justice

         The ERP Environmental Fund, Inc. ("ERP") seeks a writ of prohibition in connection with the February 25, 2016, order of the Circuit Court of Wyoming County compelling the West Virginia Department of Environmental Protection ("DEP") to direct Eastern Associated Coal, LLC ("Eastern")[1] to provide emergency drinking water, temporary potable water, and ultimately permanent water replacement to the individually-named respondents (hereinafter referred to as the "Residents") pursuant to the provisions of the West Virginia Surface Coal Mining and Reclamation Act ("SMCRA").[2] As grounds for seeking relief, ERP argues that the circuit court's order is unenforceable due to both procedural and substantive infirmities.[3] Upon our careful review of this matter, we find that the circuit court lacked the authority to direct the DEP to obtain water replacement for the Residents on the record developed in this case. Accordingly, the writ of prohibition requested by ERP is hereby granted.

          I. Factual and Procedural Background

         On November 4, 2011, the Residents filed an administrative claim with the DEP in connection with their allegation that a reclaimed water impoundment (the "Impoundment") on property subject to a permit held by Eastern[4] had contaminated their well water in violation of SMCRA.[5] After two years of investigating the complaint, DEP Environment Resource Specialist, III, Dustin C. Johnson authored a report dated April 4, 2013, stating:

In conclusion, there is a lack of evidence that water emanating from the 0001983 permit is causing detrimental environmental damage to the hydrologic balance in which the alleged groundwater contaminated wells are located. The sampling results from outlet 013, as well as the DMRs, illustrate a history of compliance from this site.

         The Residents refiled their administrative claim with the DEP on April 13, 2013. On May 22, 2013, the DEP conducted a "fourth and final follow up to the original complaint" filed by the Residents in November 2011. As a result of that final inquiry, the DEP terminated the investigation of the Residents' complaint after finding no evidence that the permitted area-the Impoundment-was the contaminating source of the Residents' water supply. Opting not to appeal the final decision terminating their complaint, [6] the Residents chose instead to file yet another complaint with the DEP on May 22, 2015, in which they asserted the same facts as the earlier two administrative complaints.[7]

         On September 16, 2015, the Residents filed a mandamus action in the Circuit Court of Wyoming County through which they sought to require Eastern to provide emergency, temporary, and permanent water replacement pursuant to West Virginia Code § 22-3-24 (2014). The Residents named the DEP and its cabinet secretary[8] as respondents but did not include Eastern or ERP as respondents to the mandamus proceeding.[9]

         On December 2, 2015, the circuit court held an evidentiary hearing on the Residents' mandamus petition. Neither Eastern nor ERP participated in the hearing.[10]Through its ruling issued on February 25, 2016, the circuit court directed the DEP to "require Eastern to provide emergency water and temporary water replacement to Petitioners [Residents] until such time as Eastern can establish a permanent water supply for them." In making its ruling, the circuit court discarded the testimony and findings of the DEP's witness, Dustin C. Johnson, preferring instead to rely on the testimony of the Residents' expert witness, D. Scott Simonton.[11] Citing Dr. Simonton's opinion that "the presence of the hydrogen sulfide gas is an indicator of Eastern's mining impact on Petitioners' [Residents'] water sources, even though the level of sulfate concentration may not have ...


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