WVDEP April 2015 Order
On April 15, 2015, the West Virginia Department of Environmental Protection (“WVDEP”) mailed out a generic order to all of the approximately 90 coal preparation plants in West Virginia. The Order requires prep plants to identify all chemical components of the products used at the plant as well as the outlets that could potentially receive these chemicals. Copy of the order available here. Additionally, all prep plants are required to analyze the effluent from the plant to determine the presence of certain enumerated chemicals typically used in the processing of coal. Once the analysis is reviewed by WVDEP, it will determine whether monitoring requirements and/or effluent limits for detected chemicals are necessary. Prep plant operators must submit Integrated Risk Information System (“IRIS”) (IRIS is a human health assessment program that evaluates information on health effects that may result from exposure to environmental contaminants) information for chemicals detected in their effluent for which there are no water quality standards. WVDEP will then review the IRIS and determine what, if any, additional reporting requirements or effluent limits are necessary.
Beyond simply avoiding a notice of violation for failure to comply with the order, thorough compliance with the order’s reporting requirements could benefit prep plant operators in expanding their ability to assert the Clean Water Act’s “permit shield” as a defense against an enforcement action. The Federal Water Pollution Control Act, also known as the Clean Water Act (CWA), prohibits the discharge of pollutants from a “point source” to “waters of the United States,” except as authorized by a National Pollution Discharge Elimination System (NPDES) permit issued by EPA or a delegated state. 33 U.S.C. §§ 1311, 1342, 1362 (2012); 40 C.F.R. § 123.25(a). West Virginia administers its own EPA-approved NPDES program. Section 402(k) of the CWA, commonly known as the “permit shield” provision, provides as follows:
Compliance with a permit issued pursuant to this section shall be deemed compliance, for purposed of sections 309 [33 U.S.C. § 1319, government enforcement action] and 505 [33 U.S.C. § 1365, citizen enforcement action] with section 301 [33 U.S.C. § 1311, effluent limits], 302 [33 U.S.C. § 1312], water quality related effluent limits], 306 [33 U.S.C. § 1316, industry standards of performance], 307 [33 U.S.C. § 1317, toxic and pretreatment effluent standards], and 403 [33 U.S.C. § 1343, ocean discharges], except any standard imposed under section 307 [33 U.S.C. § 1317, toxic and pretreatment effluent standards] for a toxic pollutant injurious to human health.
Emphasis added. Section 505 of the CWA allows citizens (typically environmental activist groups) to file lawsuits against any entity alleged to be in violation of the CWA. Typically, citizen suits allege that someone is discharging pollutants to waters of the U.S. without an NPDES permit and/or that, although the discharger has an NPDES permit, its discharge is not in compliance with the effluent limits contained in its NPDES permit. Section 402k expressly provides that compliance with the terms of an NPDES permit means that a permit holder is in compliance with the Clean Water Act for purposes of Section 505, which govern citizen suits. Effectively, the permit shield limits citizens to the four corners of the NPDES permit.
Still the question arises, what does it mean to be in compliance with a permit? Clearly if the permit places limits on the amount of, say, iron that can be discharged, and the discharge is within those limits, the permit holder is fine. But what if the permit doesn’t say anything about aluminum, but the effluent contains some trace amounts of aluminum? Does the permit shield apply in that situation?
The Fourth Circuit issued the seminal case on the scope of the permit shield defense. See Piney Run Pres. Ass’n v. Cnty. Commissioners of Carroll Cnty., 268 F.3d 255 (4th Cir. 2001). The Court synthesized various EPA guidance documents into a two prong rule, whereby a permit holder is shielded from an enforcement action where (1) the permittee complies with applicable reporting and disclosure requirements and (2) where the discharges at issue were within the reasonable contemplation of the permitting authority. Piney Run, 268 F.3d at 269-72.
Compliance with WVDEP order could bolster a “Permit Shield” defense
The CWA’s “permit shield” defense is relevant to the WVDEP’s April 14, 2015 order because of prong one of the Piney Run inquiry. If a prep plant wishes to be shielded from citizen suits alleging the unpermitted discharge of some trace amount of a coal processing constituent, a court might first ask whether the plant had complied with all applicable reporting requirements. While Courts have historically focused on the reporting requirements of the application process, it is not inconceivable that post-permit issuance reporting requirements might also be addressed in analyzing the applicability of a “permit shield” defense. Thus, for a permittee seeking to be shielded from lawsuits alleging the unpermitted discharge of any of the 100+ chemicals listed in Appendix A to the order, it would be beneficial to submit the required sampling and affirmatively indicate whether the chemical is believed present or absent.
SAMS v. A&G Coal, 2014 WL 33377687 (4th Cir. 2014), available at https://www.ca4.uscourts.gov/Opinions/Published/132050.P.pdf, could be instructive on this point. In A&G, the issue was whether A & G Coal Corporation (“A&G”) could assert a “permit shield” defense for discharges of selenium “when it failed to disclose the presence of this pollutant during the permit application process.” A&G’s NPDES permit application requested water sampling for 15 specific constituents, including selenium. The application also asked whether the applicant knew of or had reason to believe its discharges would contain a number of specified pollutants, including selenium. A&G did not submit testing and left blank the portion of the application requesting whether selenium was present or absent. A&G’s NPDES permit, issued in 2010, did not limit or authorize the discharge of selenium.
Subsequent to permit issuance, Southern Appalachian Mountain Stewards (“SAMS”) discovered selenium in A&G’s discharge and filed suit, alleging that A&G’s discharge of selenium constituted an unpermitted discharge in violation of Section 301 of the CWA. A&G raised the CWA’s “permit shield.” The Court rejected A&G’s permit shield defense based on its inadequate disclosures and held that A&G could not satisfy the first prong of the two-part test for determining the shield’s applicability first articulated in Piney Run Pres. Ass’n v. Cnty. Commr’s of Carroll Cnty. The Court found that A&G failed to comply with the applicable disclosure requirements in two respects. First, the NPDES application instructions “unequivocally” required submission of selenium sampling as a part of the permit application. Second, the application asked whether A&G believed selenium was present or absent. A&G did not submit selenium sampling and did not check either the “present” or “absent” box. Accordingly, the Court could not find that A&G met the first prong of the Piney Run test. Due to A&G’s failure to satisfy the first prong the of Piney Run test, the Court declined to address whether the discharge of selenium was within the permitting authority’s reasonable contemplation. The take-home for recipients of WVDEP’s recent order is that full compliance with both the sampling and reporting requirements could actually expand the scope of an important legal defense and potentially be a key to avoiding potentially costly litigation down the road.
This article was authored by Christopher M. Hunter, Jackson Kelly PLLC.