OHIO VALLEY ENVIRONMENTAL COALITION; WEST VIRGINIA HIGHLANDS CONSERVANCY; and SIERRA CLUB, Plaintiffs-Appellees,
FOLA COAL COMPANY, LLC, Defendant-Appellant. AMERICAN FOREST AND PAPER ASSOCIATION; AMERICAN PETROLEUM INSTITUTE; NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES; NATIONAL ASSOCIATION OF HOME BUILDERS; NATIONAL ASSOCIATION OF MANUFACTURERS; NATIONAL MINING ASSOCIATION; UTILITY WATER ACT GROUP, Amici Supporting Appellant.
Argued: October 27, 2016
from the United States District Court for the Southern
District of West Virginia, at Charleston. Robert C. Chambers,
Chief District Judge. (2:13-cv-05006)
Michael Shane Harvey, JACKSON KELLY PLLC, Charleston, West
Virginia, for Appellant.
Mark Lovett, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West
Virginia, for Appellees.
M. Johnson, Jr., OFFICE OF THE ATTORNEY GENERAL OF WEST
VIRGINIA, Charleston, West Virginia, for Amici The State of
West Virginia and West Virginia Department of Environmental
G. McLusky, Jennifer L. Hughes, JACKSON KELLY PLLC,
Charleston, West Virginia, for Appellant.
Michael Becher, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg,
West Virginia; James M. Hecker, PUBLIC JUSTICE, Washington,
D.C., for Appellees.
C. Bennett, Samuel L. Brown, Brian R. Levey, Kristy Bulleit,
HUNTON & WILLIAMS LLP, Washington, D.C.; Jan A. Poling,
AMERICAN FOREST & PAPER ASSOCIATION, Washington, D.C.;
Amanda Waters, Erica Spitzig, NATIONAL ASSOCIATION OF CLEAN
WATER AGENCIES, Washington, D.C.; Linda E. Kelly, Quentin
Riegel, NATIONAL ASSOCIATION OF MANUFACTURERS, Washington,
D.C.; Peter Tolsdorf, AMERICAN PETROLEUM INSTITUTE,
Washington, D.C.; Tom Ward, NATIONAL ASSOCIATION OF HOME
BUILDERS, Washington, D.C., for Amici American Forest &
Paper Association, American Petroleum Institute, National
Association of Clean Water Agencies, National Association of
Home Builders, National Association of Manufacturers,
National Mining Association and Utility Water Act Group. John
C. Cruden, Assistant Attorney General, David S. Gualtieri,
Jennifer Neumann, Environment and Natural Resources Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Amicus United States Environmental Protection Agency. Patrick
Morrisey, Attorney General, Elbert Lin, Solicitor General,
Erica N. Peterson, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia;
Kristin Boggs, General Counsel, Thomas L. Clarke, Senior
Policy Advisor and Counsel, WEST VIRGINIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION, Charleston, West Virginia, for
Amici The State of West Virginia and West Virginia Department
of Environmental Protection.
MOTZ and DIAZ, Circuit Judges, and Gerald Bruce LEE, United
States District Judge for the Eastern District of Virginia,
sitting by designation.
by published opinion. Judge Motz wrote the opinion, in which
Judge Diaz and Judge Lee joined.
GRIBBON MOTZ, Circuit Judge:
environmental groups brought this action against a coal
company, alleging that the company had violated the Clean
Water Act and seeking appropriate injunctive relief. After a
bench trial, the district court found that the company had
indeed violated the Act and ordered it to take corrective
measures. The company appeals, principally asserting that its
National Pollution Discharge Elimination System
("NPDES") permit shields it from liability. Because
the company did not comply with the conditions of its permit,
the permit does not shield it from liability under the Clean
Water Act, and the district court properly ordered
appropriate remedial measures. Accordingly, we affirm the
judgment of the district court.
Clean Water Act forbids all discharges of pollutants into
waters of the United States, unless the discharger holds a
permit. 33 U.S.C. §§ 1311(a), 1342, 1362 (2012).
The Act shields NPDES permit holders from liability if their
discharges comply with their permits. 33 U.S.C. §
1342(k). A typical NPDES permit lists numerical limitations
on specific types of effluents and includes other conditions
required for compliance with state and federal law. The Act
requires that effluent limits reflect applicable water
quality standards. See 33 U.S.C. § 1312(a).
These water quality standards may be numerical or narrative,
40 C.F.R. § 131.3(b) (2016), and may, but need not be,
contained in a permit.
the Act, if a state receives approval from the Environmental
Protection Agency ("EPA"), it can administer its
own NPDES permitting program. See 33 U.S.C. §
1342(b). EPA reviews and must approve any substantive changes
to a state's permit program. See id. In 1981,
West Virginia received EPA approval to administer its own
permit program and has done so ever since.
Virginia has promulgated a number of regulations necessary to
comply with the national NPDES program. All West Virginia
NPDES permits incorporate (either expressly or by reference)
numerous provisions of the West Virginia Code of State Rules.
These include a series of regulations governing NPDES permits
in general, as well as a separate series of regulations
governing NPDES permits for coal mining. Compare
W.Va. Code R. § 47-10 (2016) (general NPDES
regulations), with W.Va. Code R. § 47-30 (coal
mine NPDES regulations).
1996, Fola Coal Company, LLC obtained a West Virginia NPDES
coal mine permit to discharge into Stillhouse Branch, a
tributary of Twentymile Creek and a waterway adjacent to
Fola's surface mining facility in central West Virginia.
Fola applied for and received a renewed NPDES permit in 2009.
The provisions of that permit lie at the heart of this case.
March 13, 2013, three environmental groups -- Ohio Valley
Environmental Coalition, West Virginia Highlands Conservancy,
and Sierra Club (collectively "the Coalition") --
filed this action under the Clean Water Act's citizen
suit provision, 33 U.S.C. § 1365. The Coalition alleged
that Fola violated 5.1.f, a West Virginia regulation
incorporated in Fola's permit. At the time Fola's
renewal permit was issued in 2009, 5.1.f provided:
The discharge or discharges covered by a WV/NPDES permit are
to be of such quality so as not to cause violation of
applicable water quality standards adopted by the Department
of Environmental Protection, Title 47, Series 2.
W.Va. Code R. § 47-30-5.1.f (2009). The Coalition
alleged that Fola violated 5.1.f by discharging ions and
sulfates in sufficient quantities to cause increased
conductivity in Stillhouse Branch, which resulted in a
violation of water quality standards. Specifically, the
Coalition asserted that Fola's discharges violated two
narrative water quality standards contained in Fola's
permit. See id. §§ 47-2-3.2.e, -3.2.i
(2016); see infra n.8.
response to the Coalition's allegations, Fola pointed out
that it disclosed the nature of its discharges when it
applied for the 2009 renewal permit. At that time, Fola had
stated that its discharges would include ions and therefore
be highly conductive. Despite this disclosure, the West
Virginia Department of Environmental Protection
("WVDEP") set no specific limitations on
conductivity in Fola's permit. By declining to do so,
Fola asserted, WVDEP made an affirmative choice not to impose
any limit on conductivity. According to Fola, it followed
that 5.1.f did not obligate Fola to limit the conductivity of
its discharges even if that conductivity resulted in a
violation of water quality standards. Fola reasoned that,
because it complied with the effluent limits expressly set
out in its permit, the permit shielded it from all liability
under the Act.
support for its view that 5.1.f imposed no obligation on it,
in 2013 Fola sought clarification from WVDEP regarding a new
West Virginia law enacted a year earlier, involving the
permit shield. The new law provided that
"Notwithstanding any rule or permit condition to the
contrary, . . . compliance with a permit issued pursuant to
this article shall be deemed compliance for purposes of"
the Clean Water Act's permit shield. 2012 W.Va. SB 615
(formerly codified at W.Va. Code § 22-11-6(2) (2013)).
WVDEP responded that, in its view, this legislation did not
substantively change existing law but simply clarified West
Virginia's consistent interpretation of the permit
shield. Under this assertedly consistent view, a permit
holder need only disclose its discharges of effluents to
WVDEP and comply with the effluent limits in the permit. If
the permit holder did this, according to WVDEP, the permit
would shield the permit holder from all liability under the
Clean Water Act.
2015, WVDEP attempted to remove from 5.1.f the language at
issue in this case, which requires permit holders to comply
with water quality standards. In doing so, WVDEP admitted
that when the agency had issued Fola a renewal permit in
2009, 5.1.f "require[d] coal NPDES permittees to meet
water quality standards, whether or not such standards are
delineated in the permit or contained in the administrative
record of the permitting process." WVDEP, Response to
Comments, 47 CSR 30, WV/NPDES Rule for Coal Mining
Facilities, at 1 (2014), http://
Nonetheless, WVDEP opined that its removal of the relevant
language from 5.1.f "does nothing more than make [state
law] consistent with" the Clean Water Act, which,
according to WVDEP, did not require compliance with water
quality standards. Id.
WVDEP's views, EPA did not approve WVDEP's attempted
changes to 5.1.f. Instead, in a series of letters to WVDEP,
EPA explained its concerns that the elimination of the water
quality standards language in 5.1.f could cause state law to
conflict with federal law and weaken the state's NPDES
program. WVDEP's explanations did not assuage EPA's
concerns, and EPA did not approve any changes to 5.1.f or to
any other language incorporated in Fola's permit. In
2015, the West Virginia Legislature enacted another provision
similar to SB 615 that explicitly prohibited enforcing water
quality standard violations against permit holders. But
again, EPA did not approve the removal of the relevant
portion of 5.1.f or any similar changes to the state's
NPDES permit program that might affect Fola's permit.
armed with WVDEP's interpretation of SB 615 and the
legislative actions outlined above, Fola urged the district
court to hold that permit provision 5.1.f did not prohibit
Fola from violating West Virginia water quality standards.
Fola further contended that it could not be held accountable
for increased conductivity and resulting water quality
violations because the effluents it discharged fell within
the numerical levels allowed in its permit or were disclosed
during the permitting process.
bench trial, at which the district court considered mountains
of expert testimony, reports, and charts, the court issued a
thorough written opinion. The court found that 5.1.f
constituted an enforceable permit provision that required
Fola to refrain from violating West Virginia's water
quality standards, ...