On October 6, 2016, EPA filed an amicus brief in the Fourth Circuit in Ohio Valley Environmental Coalition v. Fola
CoalCo., LLC, No. 16-1024 (“Fola”) supporting a decision from the
Southern District of West Virginia. The district court held that discharges
from a coal mine that raised conductivity levels violated the Clean Water Act (“CWA”)
even though the mine’s permit did not contain express limits for conductivity.
The case will test whether West Virginia’s narrative water quality standards,
which the mine’s permit incorporated by reference, take precedence over the
fact that regulators knew the mine’s discharges might increase conductivity but
declined to incorporate conductivity into the permit explicitly. If the court
adopts EPA’s position, then the case could significantly impact the scope of
the permit shield defense under the CWA.