The U.S. Circuit Court of Appeals for the Fourth Circuit recently upheld the U.S. District Court for the Southern District of West Virginia's decision that a West Virginia coal mine was not shielded from Clean Water Act violations where its National Pollutant Discharge Elimination System (NPDES) permit includes a boiler plate provision requiring compliance with applicable water quality standards. In Ohio Valley Environmental Coalition (OVEC) v. Fola Coal, the Court held that the mining company did not comply with this term of its permit and therefore was not shielded from enforcement under the Clean Water Act's section 402(k) "permit shield."
The suit was brought by the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Sierra Club against Fola Coal Co. LLC in 2013 over increased conductivity in a stream next to its surface mining operations. Fola attempted to invoke the Clean Water Act's "permit shield." The Circuit Court held that Fola was not entitled to the protections of the permit shield because the company did not comply with the conditions of its permit, namely the boiler plate water quality standards provision. West Virginia NPDES permits include a requirement pursuant to state regulation 5.1.f of the state's water quality standards regulations (40 CSR 30-1) that the permittees' discharges "are to be of such quality so as not to cause [a] violation of applicable water quality standards." 40 CSR 30-1.
The Court's holding clarifies the application of the NPDES permit shield protections for those who qualify under a test previously created by the Fourth Circuit in Piney Run Pres. Ass'n v. Cnty. Comm'r, 268 F.3d 255 (4th Cir. 2001). In Piney Run, the Fourth Circuit held that a NPDES permit will shield subsequent enforcement if (1) the permit holder complies with the express terms of the permit and the CWA's permit application requirements and (2) the permit holder does not make a discharge not within the "reasonable contemplation" of the agency when the permit was issued. Id. at 259. The Court's recent decision notes that it did not hold in Piney Run "that numerical limitations on specific pollutant discharges constituted the only proper subject of regulation under the Clean Water Act." In other words, the Court is including compliance with narrative, as well as numeric, standards in NPDES permits in order to meet the eligibility requirements established in Piney Run for the permit shield to apply. The Court also noted the differences between the permit at issue in this case and the Maryland NPDES permit at issue in Piney Run, highlighting the lack of a boiler plate water quality standards compliance provision in the Maryland NPDES permit.
Permittees in states that include boiler plate water quality standards compliance provisions in their NPDES permits should be aware of the Court's opinion and its impact on the applicability of the Clean Water Act permit shield.
The Court's opinion is available here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.