On January 27, 2015, the U.S. District Court for the Southern District of West Virginia held that the waste water discharges of a mining operation in the coal mining areas were subject to a Clean Water Act (CWA) and Surface Mining Control and Reclamation Act (SMCRA) citizen suit. The District Court held that the defendant’s discharges violated its National Pollutant Discharge Elimination System (NPDES) permits by discharging “high levels of ionic pollution, as measured by conductivity” which caused or significantly and adversely affected the receiving stream’s aquatic ecosystem.
Although West Virginia has not promulgated any numeric values for this kind of pollution, the District Court found that the discharge violated the state’s “narrative water quality standards” that are incorporated in the NPDES and companion SMCRA permits. West Virginia’s narrative water quality standards are violated if wastes discharged from a surface mining operation “cause . . . or materially contribute to” (1) “[m]aterials in concentrations which are harmful, hazardous or toxic to man, animal or aquatic life” or (2) “[a]ny other condition . . . which adversely alters the integrity of the waters of the State.” W. Va. Code R. § 47-2-3.2.e, -3.2.i. The case is Ohio Valley Environmental Coalition, et al., v. Fola Coal Company, LLC.
The defendant is not entitled to a CWA permit shield defense, and a recent unpublished West Virginia Supreme Court ruling which apparently disregards the narrative water quality standards relied on by the plaintiffs, was not persuasive to the court.