In August, the companies formally answered the government’s complaint, insisting they did not pollute the waterways in question. Subsequently, they asked U.S. District Judge Amul Thapar to dismiss the suit, asserting the allegations against individual defendants lacked specificity. As a result, attorneys for the defendants said they were having problems pursuing “discovery” in the case. Discovery is a pre-trial phase in a lawsuit in which each party can obtain evidence from the opposing party.
The judge, on December 19, denied the dismissal request, but Thapar also gave government attorneys until January 11, 2013, to amend the complaint. “If the United States does not file an amended complaint, the clerk shall reinstate the defendants’ motion to dismiss” on January 14, 2013, he ruled. Thapar added that if the amended complaint does not resolve the discovery dispute, he would consider extending the discovery deadlines.
The suit contends the companies failed to obtain a Section 404 CWA permit from the U.S. Army Corps of Engineers at the 682-acre Bear Fork site in Pike County and the 768-acre Hale Fork site in Floyd and Magoffin counties “despite the fact that their surface mining operations involved excavating coal seams, then placing the excavated rock and dirt, or overburden, in streams that are jurisdictional waters of the United States.”
According to the suit, the companies’ surface mining operations have resulted in the excavation and filling of approximately 11,256 linear ft of streams at the two sites—about 7,750 linear ft at Bear Fork and 3,506 ft at Hale Fork. Streams at the two sites are “perennial streams that are tributaries of Levisa Fork,” the suit says. Essar Group operates in more than 25 countries across five continents, including North America. The company employs 75,000 people and has annual earnings in excess of $27 billion.