Ohio Valley Environmental Coalition v. Fola Coal Company, LLC
845 F.3d 133
4th Cir.2017Background
- Fola Coal operated a surface coal mine discharging mine drainage into Stillhouse Branch under a West Virginia NPDES permit renewed in 2009; the permit incorporated West Virginia regulation 5.1.f requiring discharges not to cause violations of applicable water quality standards.
- Environmental groups (Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Sierra Club) sued under the Clean Water Act citizen-suit provision alleging Fola’s discharges increased conductivity and violated the permit’s narrative water quality standards.
- Fola had disclosed high-conductivity discharges in its permit application and WVDEP set no numeric conductivity limit in the permit; Fola argued the permit shield protected it so long as it complied with the permit’s numerical effluent limits and disclosure obligations.
- WVDEP and the West Virginia Legislature later adopted provisions suggesting permit holders would be shielded from enforcement for water-quality violations, but EPA did not approve changes removing the water-quality language from 5.1.f.
- After a bench trial, the district court found Fola’s discharges materially contributed to biological impairment (using the West Virginia Stream Condition Index and expert evidence linking conductivity to lost macroinvertebrate diversity) and ordered remedial measures; the court refused the plaintiff’s most burdensome remedy and appointed a Special Master to oversee less burdensome measures proposed by Fola.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 5.1.f impose obligations on the permit holder or only on the permitting agency? | 5.1.f is an enforceable permit term that forbids permit holders from causing violations of water-quality standards. | 5.1.f regulates WVDEP’s permitting conduct and does not impose obligations on permittees. | 5.1.f unambiguously applies to permit holders and is enforceable against them. |
| Does the NPDES permit shield Fola from Clean Water Act liability despite alleged water-quality violations? | Permit shield applies only if the permittee complies with the express terms of the permit; Fola did not comply with 5.1.f. | Disclosure of conductive discharges and compliance with numeric effluent limits means the permit shield bars liability. | Permit shield unavailable because Fola failed to comply with an express permit condition (5.1.f). |
| Were the district court’s factual findings that Fola’s discharges increased conductivity and caused biological impairment clearly erroneous? | The record, experts, WVDEP/EPA methodologies, and Stream Condition Index support the findings. | Fola attacks methodology, notice, and contends the court engaged in de facto rulemaking. | Findings are factual, well-supported by expert evidence and not clearly erroneous. |
| Did the district court engage in unlawful rulemaking by relying on the Stream Condition Index or establishing thresholds? | The court applied established agency methodology (Index) and made case-specific factual findings. | Reliance on the Index or setting thresholds amounted to judicial rulemaking that usurped agency authority. | The court conducted factfinding using the Index; it did not promulgate new rules. |
Key Cases Cited
- Piney Run Pres. Ass'n v. Cty. Comm'rs, 268 F.3d 255 (4th Cir. 2001) (permits construed like contracts; permit shield applies only when permittee complies with express permit terms)
- Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000) (historical background on shift from water-quality standards to effluent limits under the Clean Water Act)
- PUD No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700 (1994) (Clean Water Act permits enforcement of broad narrative water-quality criteria)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (purpose and scope of citizen-suit provision under Clean Water Act)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) (district court discretion in crafting remedies in Clean Water Act citizen suits)