The coal industry received a split decision earlier this week in another case targeting the discharge of selenium. In OVEC v. Apogee Coal Company, the United States District Court for the Southern District of West Virginia ruled that Apogee Coal was discharging selenium in violation of its NPDES permit. When it re-issued the permit to Apogee Coal in August, 2006, the West Virginia DEP acknowledged that had mistakenly included final effluent limits in the permit, and that it should have included an interim period to attain compliance with the limits. To correct its mistake and to enforce a policy that it was implementing across the coal industry, DEP postponed the effective date of the final limits until 2009 and required the company to monitor for selenium for a three year period. The district court held this order issued in January 2007 to be a modification of the permit that had been implemented without public notice and in violation of DEP’s regulations.
A more surprising outcome, however, and one in favor of industry came in the second major claim in the case involving Hobet Mining, LLC. Hobet had also been sued for violating its NPDES permit, again for the discharge of selenium. OVEC claimed that the discharges violated both the Clean Water Act and the state surface coal mining act known as SCMRA. For procedural reasons the Clean Water Act claim was dismissed. The single Hobet outfall was discharging selenium within the terms of its NPDES permit, but allegedly in excess of state water quality standards. OVEC claimed that this intermittent discharge violated the SCMRA as it allowed discharges in excess of state water quality standards and thereby contributed to material damage in the receiving stream and off of the mine permit.
The district court disagreed and granted summary judgment to Hobet on this claim. The court ruled that “If such a discharger cannot be held liable under the CWA [Clean Water Act], a finding of liability under WVSCMRA would impose discharge limits more stringent than those required under the CWA.” Concluding that such an outcome would mean that the surface mining act’s requirements would supersede those of the CWA, the court granted summary judgment to Hobet.
Whether this interpretation is settled or is still open for review is uncertain. The court further explained that “The issue of whether or not a discharger can be held liable for water quality standards violations even while complying with its NPDES effluent limitations is not directly before the Court, but a finding in Plaintiffs’ favor requires an answer to the question. The Court refuses to decide such an important issue in an indirect challenge.” Given OVEC’s proclivity to test novel legal theories, it is entirely foreseeable that it will find a way to make this “important issue” a direct challenge.