Environmental -- 2017



Ohio Valley Env'l Coalition, Inc. v. Fola Coal Co.   (4th Circuit)

Effect of water quality standards on existing CWA permit shield

The NAM filed an amicus brief in the 4th Circuit arguing that courts should not apply new conditions to an existing water discharge permit when the regulatory agency has already considered those conditions and did not require them in the permit. The company had a West Virginia permit with boilerplate language prohibiting discharges that cause violations of state water quality standards, and the court used this to convert those water quality standards into enforceable effluent limits in the permit. This was done even though the agency had decided not to include a specific numeric limit and the legislature said that water quality standards themselves should not be considered effluent standards that are independently enforced. Allowing this kind of suit could eliminate the permit shield and subject manufacturers to numerous citizen suits under the Clean Water Act even when they are in compliance with their permits.

Our brief argued that nothing in the permit should be interpreted to allow this kind of challenge. Suits like this upend the process for setting and implementing water quality standards by second-guessing the interpretations of the responsible permitting authorities, and create a serious fair notice issue for companies that must comply with their permits. Permittees must be able to rely on the permitting agencies' direction on how to comply with permits, and courts should not change the permit requirements after the fact.

On Jan. 4, 2017, the court ruled that an NPDES permit to discharge into streams incorporates into it a requirement prohiting degradation of water quality standards. The result means that NPDES permit holders may be liable for discharges that are otherwise permitted. The ruling elmiinates the permit shield when companies violate water quality standards that are incorporated by reference into a permit, and threatens manufacturers with numerous citizen suits under the Clean Water Act.


Related Documents:
NAM amicus brief  (April 20, 2016)

 


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