Last week, the Ohio Valley Environmental Coalition and other NGOs obtained summary judgment that Alex Energy had violated both its NPDES permit and its Surface Mining Permits due to exceedances of the West Virginia water quality standard for selenium. The permit did not contain effluent limitations for selenium. Nonetheless, the state NPDES permits incorporate by reference regulations stating that:
discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by [West Virginia Code of State Rules § 47-2].
Similarly, the West Virginia surface mine permitting program, which issues permits in West Virginia under the Surface Mining Control and Reclamation Act, requires permit holders to comply with performance standards which require that:
[d]ischarge from areas disturbed by surface mining shall not violate effluent limitations or cause a violation of applicable water quality standards.
That was enough for the Court. The plaintiffs had tested surface waters at one of the mine outfalls over a six-day period (pursuant to FRCP 34, after the complaint was filed). Those tests revealed an exceedance of the chronic WQC for selenium. Summary judgment awarded to plaintiffs.
Combined with the recent 4th Circuit decision holding that a coal company could not assert the CWA permit shield defense with respect to violations of the selenium WQC where the company did not know when the permit application was filed that the discharge contained selenium, it does not take a rocket scientist to see more of these types of cases on the horizon.