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.
