NPDES Permits Are Not Protected from Clean Water Act

In a recent case in West Virginia, Ohio Valley Environmental Coalition, Inc. v. Fola Coal Co., LLC, No. 2:13-5006 (S.D.W.V. Jan. 27, 2015), brought under citizen suit, US District Court for Southern District of West Virginia determined that the wastewater discharges of a coal mining operation was subject to a Clean Water Act (CWA) and Surface Mining Control and Reclamation Act (SMCRA) despite absence of a specific effluent limit in the National Pollutant Discharge Elimination System (NPDES) permit.  A District Court judge ascertained that evidence of general causation was sufficient to establish liability under the CWA without proof that the defendant’s coal mining operation was the sole cause of pollution in terms of “high levels of ionic pollution, as measured by conductivity” in the receiving waters.

The court resolved that the discharge caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable stream’s aquatic ecosystem, in violation of the narrative water quality standards incorporated into those permits.  The court held that absence of a specific effluent limit for conductivity or salinity in the defendant’s NPDES permit did not shield the defendant from liability for impairing the chemical and biological components in the region’s waters.  With the state’s numeric and narrative water quality standards incorporated by reference into defendant’s NPDES permit, those standards constituted independently enforceable permit conditions.  The court relied on a 2014 ruling by the same court in Ohio Valley Environmental Coalition v. Elk Run Coal Co. that a West Virginia Stream Condition Index (WVSCI) score below the USEPA-approved impairment threshold of 68 indicates a violation of West Virginia’s biological narrative water quality standards.  Pursuant to the Court’s June 21, 2013, Scheduling Order, ECF No. 16, Phase 2 will resolve issues of appropriate injunctive relief and civil penalties.

The court’s decision has implications for mining and industrial facilities when applying for new discharge permits, and current permit holders facing enforcement actions for violation of discharge permits.  The NPDES permit authorizes discharge of pollutants to receiving waters and if operating under a valid permit, a facility can discharge without liability even more stringent regulations are promulgated (i.e., permit shield defense).  Permit shield protections can differ with individual and general permits, but both types could give the permit holder a false sense of security.

If you are a CWA permit holder, it is important to understand that you must be in compliance with all aspects of your permit whether stated as specific permit limits or referenced as state water quality standards.  EHS Support can help identify and interpret CWA permit conditions and requirements to ensure your company’s permitted discharge is compliant.

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