W.VA Coal Clean-Up Order Upheld

West Virginia’s Fola Coal Co. will be held to account for Clean Water Act violations and cannot assert protections under its federal discharge permit because it the permit terms as well, a federal appeals court held Wednesday.

Environmentalists sued Fola Coal contending it violated a 1996 coal mine discharge permit by dumping sulfates and ions into Twentymile Creek adjacent to its surface mining operations.  The groups won an injunction against the coal company and the company appealed.

The 4th Circuit Court of Appeals rejected Fola’s argument that its National Pollution Discharge Elimination System (NPDES) permit shields it from liability under the clean water law.

The court held that the company did not even comply with the conditions of the NPDES permit and that the permit does not shield it from liability.

The panel upheld the trial court decision that Fola must comply with appropriate remedial measures.

Three environmental groups; the Sierra Club, Ohio Valley Environmental Coalition and West Virginia Highlands Conservancy sued in 2013.

Although W. Virginia had imposed conditions on discharge permits, by 2015 lawmakers enacted a law that explicitly prohibited enforcing water quality standard violations against companies like Fola, which held NPDES permits.  But the U.S. Environmental Protection Agency did not approve of the changes to the permit program, the court said.

Case: Ohio Valley Environmental Coalition v. Fola Coal Co., No. 16-1024


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