District Court Interprets NPDES Permit Shield

Judge Chambers of the USDC for the Southern Dist of WV recently ruled, in a case pertaining to discharges from a surface coal mine, that the mine (owned by Marfork Coal Co.) was in violation of its NPDES permit if it discharged selenium in excess of the state water quality criteria, even though it had no permit limit for selenium.  As part of the permit application process, the mine had tested for selenium and found it at a level too low to qualify for an effluent limit, based on a reasonable potential analysis.  Sampling done by environmental groups at a later time allegedly revealed selenium discharges in excess of state criteria, and the environmentalists brought a citizen suit under the Clean Water Act, claiming that Marfork had violated its permit.

Marfork relied upon the permit shield that is found in the federal (CWA Section 402(k)) and state (W. Va. Code 22-11-6(2)) acts. The Court ruled that the permit shield provided no protection against a citizen suit alleging a violation of water quality standards, even where the agency had been provided selenium data at the time of the permit application, and had rejected effluent limits for selenium.  The Court decided that the permit required compliance with water quality standards, and the presence of any pollutant in excess of water quality criteria  (numeric or narrative, presumably) was a violation of the permit, even if no numeric permit limit had been placed in the permit. 

One  crucial difference between coal permits and other NPDES permits is that the  coal NPDES regulations have a provision that requires dischargers to comply with water quality standards, and the industrial NPDES regulations do not.  That may provide industrial facilities with a more expansive permit shield. 

The case is Ohio Valley Environmental Coalition v. Marfork Coal Company, Case 5:12-CV-01464 (Aug 23, 2103).  Thanks to Bob McLusky for bringing this to my attention.