4th Circuit Clarifies Application Of Clean Water Act Permit Shield, Requires Strict Permit Compliance

The U.S. Circuit Court of Appeals for the Fourth Circuit recently upheld the U.S. District Court for the Southern District of West Virginia's decision that a West Virginia coal mine was not shielded from Clean Water Act violations where its National Pollutant Discharge Elimination System (NPDES) permit includes a boiler plate provision requiring compliance with applicable water quality standards. In Ohio Valley Environmental Coalition (OVEC) v. Fola Coal, the Court held that the mining company did not comply with this term of its permit and therefore was not shielded from enforcement under the Clean Water Act's section 402(k) "permit shield."

The suit was brought by the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Sierra Club against Fola Coal Co. LLC in 2013 over increased conductivity in a stream next to its surface mining operations. Fola attempted to invoke the Clean Water Act's "permit shield." The Circuit Court held that Fola was