Federal Court Finds Coal Company Liable for Selenium Discharges

In an opinion issued December 19, 2013, Judge Chambers for the U.S. District Court for the Southern District of West Virginia denied defendant Fola Coal Company, LLC (Fola) and granted environmental plaintiffs’ motion for partial summary judgment against Fola, and for declaratory relief as to liability for violating the Federal Water Pollution Control Act (Clean Water Act) and the Surface Mining Control and Reclamation Act (SMCRA) for discharging excessive amounts of selenium into the waters of West Virginia, but held in abeyance plaintiffs’ claims as to the number of violations and for injunctive relief and civil penalties.  

The Clean Water Act was enacted to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters” by prohibiting the discharge of pollutants without permits in to navigable waters of the United States.  By delegation from U.S. Environmental Protection Agency, the State of West Virginia establishes water quality standards and issues permits to point sources to ensure water quality standard achievement.  West Virginia’s water quality standards for aquatic life protection limit selenium discharges to an acute limitation of 20 g/l or a chronic limitation of 5 g/l.

Fola holds WV/NPDES (water permits) and mining permits for its facilities.  These WV/NPDES permits place discharge limits on certain pollutants, but do not specifically limit selenium discharges.  However, all coal WV/NPDES permits incorporate by reference W. Va. Code R. § 47-30-5.1.f, which states in part “discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards.”  Plaintiffs allege that the violation of the selenium water quality standard is enforceable under the citizens’ suit provision of the Clean Water Act.

In addition to the CWA, coal mining operations must comply with SMCRA, which requires a permit for surface mining operations.  Like the CWA, the State of West Virginia has a delegated SMCRA program.  West Virginia regulations require permittees to comply with all applicable performance standards, including the requirement that “[d]ischarge from areas disturbed by surface mining shall not violate effluent limitations or cause a violation of applicable water quality standards.”  W. Va. Code R. §38-2-14.5.b.  Plaintiffs allege that violation of the selenium water quality standard is a violation of SMCRA and its permits.  This allegation assumes that the selenium water quality standard is an enforceable performance standard, and therefore, discharges in violation of the selenium water quality standard are enforceable.  Plaintiffs also claim that Fola violated SMCRA and its permits for failure to install, operate, and maintain adequate selenium treatment facilities.

Fola unsuccessfully argued that plaintiffs lack standing to bring suit, that the WV/NPDES permits effectively “shield” it from liability because selenium is not a pollutant whose discharge is limited by the terms of the permit, and that the State water quality standards were invalidly promulgated.  The Court rejected Fola’s arguments and found Fola liable on all six counts.  However, held “[t]he Court is not in a position at this time to decide how many violations of the CWA and SMCRA have occurred or to impose any specific relief, including the injunctive relief requested by Plaintiffs.”  The Court will leave resolution of those issues to a subsequent time.  The case is Ohio Valley Environmental Coalition, Inc. v. Fola Coal Co., LLC, slip copy (S.D. W.Va. Dec. 19, 2013).

Laura Goldfarb helps clients resolve their environmental policy, regulation, and enforcement problems. Prior to joining Steptoe & Johnson, Ms. Goldfarb was Assistant Counsel at the West Virginia Department of Environmental Protection, where she represented the agency in a variety of matters relating to the state's environmental programs, and drafted regulatory and statutory environmental provisions for the State of West Virginia.
» See more articles by Laura M. Goldfarb
» Read the full biography of Laura M. Goldfarb at Steptoe & Johnson