Manko Gold Katcher & Fox
Claudia V. Colón García-Moliner
February 10, 2017
The Clean Water Act (“CWA”) generally forbids discharging contaminated effluent into waters of the United States unless the discharger holds a National Pollution Discharge Elimination System (“NPDES”) permit. Once a discharger holds a permit, they are shielded from discharge related liability- unless, as the Fourth Circuit observed in the recent case of Ohio Valley Environmental Coalition v. Fola Coal Company, LLC, No. 161024 (4th Cir., 1/04/2017), the permit holder is noncompliant.
West Virginia’s NPDES program includes regulations specifically governing NPDES permits for coal mining. Fola Coal Company, LLC (“Fola Coal”) first obtained its permit under West Virginia’s coal mining NPDES program in 1996 in order to discharge into receiving waterways, and then renewed it in 2009. In the case at issue, several environmental groups, including Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and the Sierra Club, brought suit against Fola Coal under the CWA’s citizen suit provision. The environmental groups alleged that Fola Coal violated a specific section within Fola Coal’s permit, section 5.1.f, which provided: