Environmental Litigation Attorneys

Not every environmental dispute can be resolved at a conference table. When compliance negotiations stall, when federal or state agencies pursue penalties your company does not deserve, or when a third party files suit to shut down your operations, you need attorneys who are prepared to fight in court. At Pence Law Firm, PLLC, our environmental litigation team represents industrial, commercial, and municipal clients in contested environmental proceedings throughout West Virginia, from administrative hearings before the Environmental Quality Board and the Air Quality Board in Charleston to federal court actions in the Southern and Northern Districts of West Virginia.

Our environmental practice is led by Marc C. Bryson, who has spent his career defending regulated entities in some of the most consequential environmental cases in the state. Marc has litigated Clean Water Act citizen suits, RCRA citizen suits, NPDES permit appeals, and third-party permit challenges, and he has defended clients against enforcement actions brought by both the U.S. Environmental Protection Agency and the West Virginia Department of Environmental Protection (WVDEP). 

What Is Environmental Litigation?

Environmental litigation refers to contested legal proceedings that arise from disputes over environmental regulations, permits, enforcement actions, or contamination liability. These cases are heard in federal and state courts, as well as before administrative boards, and they can involve government agencies, private plaintiffs, environmental advocacy groups, or competing business interests.

Environmental litigation differs from routine civil cases in several ways. The subject matter is technically complex, often involving hydrogeological data, air dispersion modeling, water quality sampling, and engineering analyses that must be translated into legal arguments. The regulatory framework is layered. 

Federal statutes like the Clean Water Act and Clean Air Act sit on top of state-level rules under Chapter 22 of the West Virginia Code, which encompasses environmental resources and includes multiple articles addressing water pollution control, air pollution control, solid waste management, and other environmental matters, each with its own procedural requirements for how claims are brought and defended. Judges and administrative hearing officers in environmental cases expect a level of technical fluency that many general litigators simply do not have.

For businesses operating along the Kanawha River corridor, in the coalfields of southern West Virginia, or across the Marcellus shale region, the stakes in environmental litigation are rarely abstract. A lost permit appeal can force a facility to close. An unfavorable enforcement ruling can result in penalties that reach into the hundreds of thousands of dollars. A citizen suit can impose injunctive requirements that fundamentally change how an operation runs. These cases demand attorneys who understand both the law and the science, and who have actually tried these matters before the tribunals where they are decided.

What Types of Environmental Cases Does Pence Law Firm Handle?

We defend clients in government enforcement actions, citizen suits under federal environmental statutes, permit appeals and challenges before state administrative boards, Superfund and contamination liability disputes, toxic tort defense, and environmental insurance coverage disputes. Each category requires a distinct litigation strategy tailored to the forum, the opposing party, and the specific regulatory framework at issue.

Government Enforcement Defense

When the WVDEP, PADEP, or EPA brings an enforcement action against your facility, the consequences can include civil penalties, compliance orders, consent decrees with years of operational restrictions, and, in the most serious cases, criminal referrals. Our attorneys have defended clients against enforcement proceedings initiated by federal and state agencies. We understand how agency inspectors document alleged violations, how environmental regulators build their records and calculate penalties, and where the weaknesses in the government’s case are most likely to be found.

Enforcement cases often begin with a notice of violation or an administrative compliance order, but they can escalate quickly. The WVDEP has authority under West Virginia Code § 22-11-22 to assess civil penalties of up to $25,000 per day for water pollution violations. The Director (formerly Secretary) of the WVDEP may seek injunctive relief through the circuit court of the county where the violation occurred or where waters are polluted as a result of the violation, often Kanawha County Circuit Court for matters in the Charleston area. 

The EPA can file its own civil judicial actions in the U.S. District Court for the Southern District of West Virginia in Charleston. Our goal in every enforcement matter is to resolve the case on terms that protect our client’s operations and finances, through negotiation where possible and through aggressive litigation where necessary.

Clean Water Act Citizen Suits

The Clean Water Act includes a citizen suit provision under 33 U.S.C. § 1365 that allows private parties and environmental organizations to file lawsuits against facilities they allege are violating their NPDES permit conditions or discharging pollutants without a permit. Under this provision, any citizen may commence a civil action against any person alleged to be in violation of an effluent standard or limitation, or against the EPA Administrator for failure to perform non-discretionary duties. 

Plaintiffs must provide 60-day advance notice to the alleged violator, the state, and the EPA before filing suit. These suits have become an increasingly common tool in West Virginia, where advocacy groups and downstream plaintiffs target coal operations, chemical facilities, and municipal wastewater systems. A citizen suit can seek injunctive relief, civil penalties payable to the U.S. Treasury, and recovery of the plaintiff’s attorney’s fees, which creates a powerful financial incentive for these cases to be filed.

Marc Bryson has defended clients against Clean Water Act citizen suits and understands the procedural and substantive defenses available. These include challenges to the sufficiency of the plaintiff’s 60-day notice letter, arguments that the alleged violations have been corrected (mooting the claim for injunctive relief), disputes over whether Discharge Monitoring Report (DMR) data actually demonstrates noncompliance, and affirmative defenses such as upset conditions and bypass events. Successfully defending these cases requires a command of both the technical discharge data and the case law governing citizen suit standing, mootness, and penalty calculation.

RCRA Citizen Suits

The Resource Conservation and Recovery Act also contains a citizen suit provision under 42 U.S.C. § 6972 that allows private plaintiffs to sue facilities for violations of RCRA permits, regulations, or orders related to solid or hazardous waste management, or for conditions that may present an imminent and substantial endangerment to health or the environment. The statute requires plaintiffs to provide advance notice—60 days for permit or regulatory violations, and 90 days for imminent endangerment claims. 

In West Virginia, these suits often target industrial operations where legacy contamination and ongoing waste management practices intersect. RCRA citizen suits can result in court-ordered cleanup obligations and operational injunctions. Our attorneys have defended clients in RCRA citizen suits and know how to challenge the plaintiff’s characterization of waste streams, dispute the scientific evidence offered to establish endangerment, and negotiate practical remedial solutions.

Permit Appeals and Third-Party Challenges

Environmental permits are not always issued on terms that the applicant can accept, and they are not always left unchallenged by third parties. When the WVDEP issues, denies, or conditions an NPDES permit, air quality permit, or other environmental authorization in a way that is legally or technically unjustified, the permit holder has the right to appeal. NPDES and water-related permit decisions are appealed to the Environmental Quality Board, while air permit decisions go before the Air Quality Board. Appeals must be filed within 30 days of the permit applicant’s receipt of the permit or order. Our attorneys have handled numerous permit appeals before both boards.

Third-party challenges present a different kind of problem. Environmental groups and neighboring property owners can also challenge permits they believe are too lenient or that fail to adequately protect water quality or air quality in their community. Defending against a third-party challenge requires a thorough understanding of the permit application record, the technical basis for the permit’s conditions, and the administrative law governing the scope of review. We work with our clients and, where appropriate, coordinate with agency counsel to defend the permit’s validity and ensure that our clients’ operations are not disrupted by unfounded challenges.

Superfund and Contamination Liability

CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act) imposes strict liability on parties associated with the release of hazardous substances at contaminated sites. While CERCLA does not explicitly state that liability is joint and several, federal courts have consistently interpreted the statute to impose joint and several liability on potentially responsible parties (PRPs), meaning that any single PRP can be held responsible for the entire cost of cleanup, even if their contribution to the contamination was minimal. This applies unless a defendant can establish the divisibility of harm. A company can face Superfund liability as a current or former owner or operator of a facility, as a party that arranged for disposal of hazardous waste, or as a transporter that selected the disposal site. In West Virginia, contamination disputes frequently involve legacy industrial sites, former coal processing operations, and abandoned facilities where hazardous materials were stored or disposed of decades ago.

CERCLA litigation is often protracted and expensive. It involves complex technical assessments of contamination extent, allocation disputes among multiple potentially responsible parties, and negotiations with the EPA over the scope and cost of remedial actions. Our attorneys represent clients in all phases of Superfund proceedings—from the initial EPA investigation through formal allocation, consent decree negotiations, and, when necessary, contribution actions against other responsible parties in federal court.

Toxic Tort and Environmental Exposure Defense

Industrial operations throughout the region sometimes face claims from individuals or communities alleging that environmental contamination caused personal injury, property damage, or diminished quality of life. These toxic tort cases can involve air emissions from chemical plants, groundwater contamination from industrial waste sites, or surface water pollution affecting downstream property owners. Defending these claims requires the ability to challenge causation, evaluate the reliability of the plaintiff’s environmental and medical evidence, and present competing scientific analyses. Our attorneys work with environmental consultants, toxicologists, and other technical professionals to build a defense grounded in the actual data.

Where Are Environmental Cases Litigated?

Environmental litigation in West Virginia takes place across multiple forums, including the state’s administrative boards, the Kanawha County Circuit Court, other circuit courts throughout the state, the U.S. District Courts for the Southern and Northern Districts of West Virginia, and the Fourth Circuit Court of Appeals. Most cases in Pennsylvania are heard by the Environmental Hearing Board, but others are brought in state and federal courts. The correct forum depends on the type of dispute, the parties involved, and the statute under which the claim arises.

State Administrative Boards

The Environmental Quality Board and the Air Quality Board are the two primary administrative tribunals for environmental disputes in West Virginia. Both are quasi-judicial bodies that hear appeals from WVDEP permitting and enforcement decisions. The Environmental Quality Board handles challenges related to water permits, waste management, and other matters under the WVDEP’s Division of Water and Waste Management. 

The Air Quality Board hears disputes involving air permits and enforcement actions from the Division of Air Quality. Proceedings before these boards follow their own procedural rules, and the standard of review, evidentiary requirements, and burden of proof differ from those in circuit court. Our attorneys have appeared before both boards and understand how to present technically complex evidence in a way that is effective in these proceedings.

Kanawha County Circuit Court and State Courts

The WVDEP can seek injunctive relief and penalty enforcement through circuit courts in West Virginia, with venue in the county where the violation occurred or where waters are polluted as a result of the violation—often Kanawha County Circuit Court for matters in the Charleston area. Decisions of the state’s environmental administrative boards can be appealed to the circuit court. Environmental tort claims and property damage cases are also brought in state circuit courts throughout West Virginia, depending on where the alleged contamination or exposure occurred. Our firm’s litigation experience in Kanawha County Circuit Court and courts across the state gives us the courtroom familiarity that environmental cases in these forums demand.

Federal Courts

Federal environmental statutes like the Clean Water Act, RCRA, and CERCLA provide for citizen suits and EPA enforcement actions in federal court. Cases arising in the Charleston area and much of southern and central West Virginia are filed in the U.S. District Court for the Southern District of West Virginia, which sits in Charleston. Cases from the northern part of the state are heard in the Northern District, which has courthouses in Wheeling, Clarksburg, Elkins, and Martinsburg. Appeals from either district proceed to the U.S. Court of Appeals for the Fourth Circuit in Richmond. Our environmental litigation attorneys are admitted to practice before these courts and have the federal court experience necessary to handle complex environmental cases at every level.

How Does Pence Law Firm Approach Environmental Litigation?

We approach every environmental case with the understanding that the outcome will directly affect our client’s ability to operate. That means building a defense strategy that is grounded in both the legal framework and the underlying science, and that is calibrated to achieve the best possible result, whether that comes through a negotiated resolution or a contested hearing.

Environmental cases are won or lost on the technical record. The first thing we do in any matter is assemble and analyze the underlying data; permit files, discharge monitoring reports, emissions inventories, inspection reports, sampling results, and operational logs. We identify where the government’s case or the plaintiff’s allegations diverge from what the data actually shows. In many enforcement actions, the alleged violation looks very different once the monitoring data is placed in context. A single exceedance on a DMR report may have been caused by a documented upset event, a sampling anomaly, or a permit condition that was ambiguously drafted.

From there, we develop a litigation strategy that matches the forum. Administrative hearings before the Environmental Quality Board require a different approach than a federal bench trial on a Clean Water Act citizen suit. The evidentiary rules differ, the decision-makers differ, and the tactical considerations differ. We prepare each case specifically for the tribunal where it will be decided, and we retain the environmental engineers, hydrogeologists, air quality modelers, and other technical consultants needed to support our arguments with credible scientific testimony.

Throughout the process, we keep our clients informed and involved. Environmental litigation can affect not just the facility at issue but an entire company’s operations, reputation, and regulatory relationships. We help our clients understand the risks and options at each stage, and we never lose sight of the fact that the goal is to protect the business.

What Does Environmental Litigation Cost?

The cost of environmental litigation depends on the complexity of the case, the forum, the opposing party, and the amount of technical evidence involved. Pence Law Firm bills environmental litigation on an hourly basis and provides clients with a clear assessment of the anticipated scope and cost during the initial case evaluation.

Some environmental disputes (such as straightforward permit appeals or enforcement matters that are resolved through early negotiation) can be handled efficiently. Others, particularly federal citizen suits, multi-party CERCLA actions, or cases requiring extensive technical consulting, involve a larger commitment of time and resources. We are transparent about costs from the outset and work to manage litigation budgets through focused case strategy, efficient use of technical consultants, and a clear-eyed assessment of when negotiation is more advantageous than prolonged litigation.

Contact Our Environmental Litigation Attorneys

When your business faces an environmental enforcement action, a citizen suit, a permit challenge, or a contamination liability dispute in West Virginia or Pennsylvania, Pence Law Firm has the litigation experience and the environmental law knowledge to defend your interests. We represent clients in every forum where environmental cases are decided.

Contact Pence Law Firm, PLLC online or call (304) 345-7250 to schedule a consultation with our environmental litigation team.

Frequently Asked Questions About Environmental Litigation in West Virginia

How long does a typical environmental enforcement case take to resolve?

Timelines vary widely. A straightforward enforcement matter that can be resolved through negotiation with the WVDEP may be concluded in a few months. Contested cases that proceed through administrative hearings or federal court litigation can take a year or more, and multi-party CERCLA actions sometimes extend over several years. We provide realistic timeline estimates based on the specific facts and forum involved in your case.

What is the difference between a consent order and a consent decree?

A consent order is typically an agreement between a regulated facility and a state agency like the WVDEP that resolves an enforcement action by establishing a schedule for achieving compliance and, in many cases, imposing a penalty. A consent decree is a court-approved agreement that carries the force of a judicial order, commonly used in federal enforcement actions and citizen suit settlements. Violating the terms of a consent decree can result in contempt of court proceedings and additional penalties.

Can I challenge an NPDES permit that was issued with conditions I cannot meet?

Yes. If the WVDEP or PADEP issues your NPDES permit with effluent limitations, monitoring requirements, or other conditions that you believe are legally or technically unjustified, you have the right to appeal to the Environmental Quality Board or the Pennsylvania Environmental Hearing Board. The appeal must be filed within 30 days of the permit applicant’s receipt of the final permit or order, and it requires a detailed explanation of the grounds for the challenge. It is also critical that regulated entities engage in the administrative process before permits or orders are issued in final form. All environmental permits and some orders are subject to public notice and comment which presents an opportunity for regulated entities and the public to engage with environmental regulators about the content and requirements of the permit. Our attorneys can evaluate your permit, identify technical issues and defensible grounds for appeal, and represent you in the administrative proceeding. 

What defenses are available in a Clean Water Act citizen suit?

Several defenses may apply depending on the facts. Common defenses include challenging the sufficiency of the plaintiff’s required 60-day pre-suit notice, arguing that the alleged violations have been fully corrected (mootness), contesting whether the plaintiff has standing, raising upset or bypass defenses under applicable permit provisions, and disputing whether the monitoring data actually demonstrates a violation. The strength of each defense depends on the specific facts and the applicable case law in the Fourth Circuit.

What should I do if I receive a 60-day notice letter for a citizen suit?

A 60-day notice letter is a required precursor to a citizen suit under the Clean Water Act, RCRA, or other federal environmental statutes. It provides the recipient with notice of the specific violations alleged and gives them an opportunity to come into compliance before the lawsuit is filed. Receiving a 60-day notice letter is a serious matter that requires immediate legal attention. Our attorneys can assess the allegations, advise on corrective actions that may prevent or limit the scope of litigation, and begin preparing a defense strategy.

Can I be held personally liable in an environmental enforcement action?

In certain circumstances, yes. Federal environmental statutes and West Virginia law can impose liability on corporate officers and responsible individuals (not just the corporate entity) for environmental violations. This is particularly true in criminal enforcement matters, but personal liability can also arise in civil penalty actions where an individual had authority over the operations that caused the violation. If you are facing potential personal exposure in an environmental matter, it is essential to have your own legal representation to protect your individual interests.