Earlier this month, the 4th Circuit Court of Appeals concluded that NPDES permit holders must comply with all of the terms of their permits. I’m not sure why this should be earthshattering news, but the case does have some relevance for defining the scope of the permit shield.
The case involved the Fola Coal Company and the recurring issue of high conductivity resulting from surface coal mining operations. Fola Coal was issued an NPDES permit by the West Virginia Department of Environmental Protection. In applying for the permit, Fola Coal disclosed the conductivity issue. The permit did not contain any numerical limits on conductivity. Fola Coal thus took the position that, since its permit did not specifically limit conductivity, and it had fully disclosed the conductivity issue, it was entitled to the permit shield, protecting it from claims related to conductivity.
Unfortunately for Fola Coal, its permit did contain an explicit provision prohibiting it from causing any violation of water quality standards. As the Court made clear, the permit shield provision does not protect permittees who comply with numerical limitations in their permit. Rather, it protects permittees who comply “with the express terms of the permit.” Since the permit expressly required compliance with water quality criteria and since the District Court found that Fola Coal’s conductivity discharges had caused violations of water quality criteria, the permit shield did not apply and Fola Coal was subject to enforcement.
Thanks for the summary. In your practice are you noticing that decisions like these have caused permit applicants to fight with regulators to leave out “catch-all” terms in individual permits that prohibit causing a violation of WQS? I mostly do citizen’s-bar work, but that seems like something these cases would make industry increasingly ask for.