Ohio Valley Environmental Coal v. Fola Coal Company, LLC

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:13-cv-05006. [999997465]. [16-1024]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1024

OHIO
VALLEY
ENVIRONMENTAL
COALITION;
HIGHLANDS CONSERVANCY; and SIERRA CLUB,

WEST

VIRGINIA

Plaintiffs - Appellees,
v.
FOLA COAL COMPANY, LLC,
Defendant - Appellant.
-----------------------------------AMERICAN FOREST AND PAPER ASSOCIATION; AMERICAN PETROLEUM
INSTITUTE; NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES;
NATIONAL ASSOCIATION OF HOME BUILDERS; NATIONAL ASSOCIATION
OF MANUFACTURERS; NATIONAL MINING ASSOCIATION; UTILITY WATER
ACT GROUP,
Amici Supporting Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Robert C. Chambers,
Chief District Judge. (2:13-cv-05006)

Argued:

October 27, 2016

Decided:

January 4, 2017

Before MOTZ and DIAZ, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Diaz and Judge Lee joined.

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ARGUED: Michael Shane Harvey, JACKSON KELLY PLLC, Charleston,
West Virginia, for Appellant.
Joseph Mark Lovett, APPALACHIAN
MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Appellees.
Thomas M. Johnson, Jr., OFFICE OF THE ATTORNEY GENERAL OF WEST
VIRGINIA, Charleston, West Virginia, for Amici The State of West
Virginia
and
West
Virginia
Department
of
Environmental
Protection.
ON BRIEF: Robert G. McLusky, Jennifer L. Hughes,
JACKSON KELLY PLLC, Charleston, West Virginia, for Appellant.
J. Michael Becher, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg,
West Virginia; James M. Hecker, PUBLIC JUSTICE, Washington,
D.C., for Appellees.
Karen C. Bennett, Samuel L. Brown, Brian
R. Levey, Kristy Bulleit, HUNTON & WILLIAMS LLP, Washington,
D.C.; Jan A. Poling, AMERICAN FOREST & PAPER ASSOCIATION,
Washington,
D.C.;
Amanda
Waters,
Erica
Spitzig,
NATIONAL
ASSOCIATION OF CLEAN WATER AGENCIES, Washington, D.C.; Linda E.
Kelly, Quentin Riegel, NATIONAL ASSOCIATION OF MANUFACTURERS,
Washington, D.C.; Peter Tolsdorf, AMERICAN PETROLEUM INSTITUTE,
Washington, D.C.; Tom Ward, NATIONAL ASSOCIATION OF HOME
BUILDERS, Washington, D.C., for Amici American Forest & Paper
Association, American Petroleum Institute, National Association
of Clean Water Agencies, National Association of Home Builders,
National
Association
of
Manufacturers,
National
Mining
Association and Utility Water Act Group.
John C. Cruden,
Assistant
Attorney
General,
David
S.
Gualtieri,
Jennifer
Neumann, Environment and Natural Resources Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
United
States
Environmental
Protection
Agency.
Patrick
Morrisey, Attorney General, Elbert Lin, Solicitor General, Erica
N. Peterson, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF WEST VIRGINIA, Charleston, West Virginia; Kristin
Boggs, General Counsel, Thomas L. Clarke, Senior Policy Advisor
and
Counsel,
WEST
VIRGINIA
DEPARTMENT
OF
ENVIRONMENTAL
PROTECTION, Charleston, West Virginia, for Amici The State of
West Virginia and West Virginia Department of Environmental
Protection.

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DIANA GRIBBON MOTZ, Circuit Judge:
Several environmental groups brought this action against a
coal company, alleging that the company had violated the Clean
Water Act and seeking appropriate injunctive relief.
bench

trial,

indeed

the

violated

measures.

district
the

Act

court
and

found

ordered

that
it

to

the

After a

company

take

had

corrective

The company appeals, principally asserting that its

National Pollution Discharge Elimination System (“NPDES”) permit
shields it from liability.

Because the company did not comply

with the conditions of its permit, the permit does not shield it
from liability under the Clean Water Act, and the district court
properly ordered appropriate remedial measures.

Accordingly, we

affirm the judgment of the district court.

I.
A.
The Clean Water Act forbids all discharges of pollutants
into waters of the United States, unless the discharger holds a
permit.

33 U.S.C. §§ 1311(a), 1342, 1362 (2012).

The Act

shields NPDES permit holders from liability if their discharges
comply with their permits.

33 U.S.C. § 1342(k).

A typical

NPDES permit lists numerical limitations on specific types of
effluents and includes other conditions required for compliance
with state and federal law.

The Act requires that effluent
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limits

reflect

applicable

U.S.C.

§ 1312(a).

These

Pg: 4 of 33

water

quality

water

standards.

quality

See
may

standards

33
be

numerical or narrative, 40 C.F.R. § 131.3(b) (2016), and may,
but need not be, contained in a permit.
Under

the

Act,

if

a

state

receives

approval

from

the

Environmental Protection Agency (“EPA”), it can administer its
own NPDES permitting program.

See 33 U.S.C. § 1342(b).

EPA

reviews and must approve any substantive changes to a state’s
permit program.

See id.

In 1981, West Virginia received EPA

approval to administer its own permit program and has done so
ever since.
West

Virginia

has

promulgated

a

number

of

regulations

necessary to comply with the national NPDES program.
Virginia
reference)

NPDES

permits

numerous

incorporate

provisions

of

(either
the

West

All West

expressly
Virginia

or

by

Code

of

State Rules.

These include a series of regulations governing

NPDES

in

permits

general,

as

well

as

a

separate

regulations governing NPDES permits for coal mining.

series

of

Compare

W. Va. Code R. § 47-10 (2016) (general NPDES regulations), with
W. Va. Code R. § 47-30 (coal mine NPDES regulations).
In 1996, Fola Coal Company, LLC obtained a West Virginia
NPDES coal mine permit to discharge into Stillhouse Branch, a
tributary of Twentymile Creek and a waterway adjacent to Fola’s
surface mining facility in central West Virginia.
4

Fola applied

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for and received a renewed NPDES permit in 2009.

The provisions

of that permit lie at the heart of this case.
B.
On

March

Valley

13,

2013,

Environmental

three

environmental

Coalition,

West

groups

Virginia

--

Ohio

Highlands

Conservancy, and Sierra Club (collectively “the Coalition”) -filed

this

action

under

the

provision, 33 U.S.C. § 1365.
violated

5.1.f,

Fola’s permit.

a

West

Clean

Water

Act’s

citizen

suit

The Coalition alleged that Fola

Virginia

regulation

incorporated

in

At the time Fola’s renewal permit was issued in

2009, 5.1.f provided:
The discharge or discharges covered by a WV/NPDES
permit are to be of such quality so as not to cause
violation
of
applicable
water
quality
standards
adopted by the Department of Environmental Protection,
Title 47, Series 2.
W. Va. Code R. § 47-30-5.1.f (2009).
Fola

violated

5.1.f

by

sufficient

quantities

Stillhouse

Branch,

quality standards.

to

which

The Coalition alleged that

discharging
cause
resulted

ions

and

increased
in

a

sulfates

in

conductivity

in

violation

of

water

Specifically, the Coalition asserted that

Fola’s discharges violated two narrative water quality standards
contained

in

Fola’s

permit.

See

id.

§§ 47-2-3.2.e,

-3.2.i

(2016); see infra n.8.
In response to the Coalition’s allegations, Fola pointed
out

that

it

disclosed

the

nature
5

of

its

discharges

when

it

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applied for the 2009 renewal permit.

At that time, Fola had

stated that its discharges would include ions and therefore be
highly conductive.

Despite this disclosure, the West Virginia

Department of Environmental Protection (“WVDEP”) set no specific
limitations on conductivity in Fola’s permit.

By declining to

do so, Fola asserted, WVDEP made an affirmative choice not to
impose

any

followed

limit

that

conductivity

on

5.1.f
of

resulted

in

a

reasoned

that,

conductivity.
did

its

not

obligate

discharges

violation
because

of

it

According
Fola

even

water

if

with

to

that

quality

complied

to

Fola,
limit

the

conductivity

standards.

the

it

effluent

Fola
limits

expressly set out in its permit, the permit shielded it from all
liability under the Act.
To

gain

support

for

its

view

that

5.1.f

imposed

no

obligation on it, in 2013 Fola sought clarification from WVDEP
regarding

a

new

involving

the

West

permit

“Notwithstanding

any

Virginia
shield.
rule

law

enacted

The
or

new

permit

a

law

year

earlier,

provided

condition

to

that
the

contrary, . . . compliance with a permit issued pursuant to this
article shall be deemed compliance for purposes of” the Clean
Water

Act’s

permit

shield.

2012

W.

Va.

codified at W. Va. Code § 22-11-6(2) (2013)).

SB

615

(formerly

WVDEP responded

that, in its view, this legislation did not substantively change
existing

law

but

simply

clarified
6

West

Virginia’s

consistent

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interpretation
consistent

of

view,

the
a

permit
permit

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shield.
holder

Under
need

this

only

assertedly

disclose

its

discharges of effluents to WVDEP and comply with the effluent
limits in the permit.

If the permit holder did this, according

to WVDEP, the permit would shield the permit holder from all
liability under the Clean Water Act.
In 2015, WVDEP attempted to remove from 5.1.f the language
at issue in this case, which requires permit holders to comply
with water quality standards.

In doing so, WVDEP admitted that

when the agency had issued Fola a renewal permit in 2009, 5.1.f
“require[d]

coal

NPDES

permittees

to

meet

water

quality

standards, whether or not such standards are delineated in the
permit

or

contained

permitting process.”

in

the

administrative

record

of

the

WVDEP, Response to Comments, 47 CSR 30,

WV/NPDES Rule for Coal Mining Facilities, at 1 (2014), http://
apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=26342&Format=PDF.
Nonetheless,

WVDEP

opined

that

its

removal

of

the

relevant

language from 5.1.f “does nothing more than make [state law]
consistent with” the Clean Water Act, which, according to WVDEP,
did not require compliance with water quality standards.

Id.

Notwithstanding WVDEP’s views, EPA did not approve WVDEP’s
attempted changes to 5.1.f.

Instead, in a series of letters to

WVDEP, EPA explained its concerns that the elimination of the
water quality standards language in 5.1.f could cause state law
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to

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conflict

program.

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with

federal

Pg: 8 of 33

law

and

weaken

the

state’s

NPDES

WVDEP’s explanations did not assuage EPA’s concerns,

and EPA did not approve any changes to 5.1.f or to any other
language

incorporated

in

Fola’s

permit.

In

2015,

the

West

Virginia Legislature enacted another provision similar to SB 615
that

explicitly

violations

prohibited

against

permit

enforcing
holders.

water
But

quality

again,

standard

EPA

did

not

approve the removal of the relevant portion of 5.1.f or any
similar changes to the state’s NPDES permit program that might
affect Fola’s permit.
Nevertheless, armed with WVDEP’s interpretation of SB 615
and

the

legislative

district

court

to

prohibit

Fola

from

actions

hold

outlined

that

above,

Fola

urged

permit

provision

5.1.f

West

Virginia

water

violating

did

the
not

quality

standards.

Fola further contended that it could not be held

accountable

for

quality
within

increased

violations
the

because

numerical

conductivity
the

levels

effluents

allowed

in

and
it
its

resulting

water

discharged

fell

permit

were

or

disclosed during the permitting process.
C.
After a bench trial, at which the district court considered
mountains of expert testimony, reports, and charts, the court
issued a thorough written opinion.

The court found that 5.1.f

constituted an enforceable permit provision that required Fola
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to

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refrain

standards,

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from

violating

including

the

Pg: 9 of 33

West

Virginia’s

narrative

water

water

quality

quality
standards

contained in §§ 47-2-3.2.e and -3.2.i.
The court found that mine drainage like that which Fola
discharged into Stillhouse Branch deposited significant amounts
of ions into the receiving water. 1

Ohio Valley Envtl. Coalition,

Inc. v. Fola Coal Co., 82 F. Supp. 3d 673, 686–87 (S.D. W. Va.
2015).
the

These ions are measured by conductivity, id. at 687, and

conductivity

of

Stillhouse

Branch

had

markedly

increased

since Fola began discharging mine drainage into the water, id.
at 696–98.
As conductivity in Stillhouse Branch increased, the experts
explained and the court found, sensitive insect species, which
could not adapt to the sudden and dramatic change, died.
687.

Id. at

The decrease in aquatic diversity caused a decrease in the

stream’s score on the West Virginia Stream Condition Index (“the

1

In order to extract coal, Fola blasted rock and dumped it
into Stillhouse Branch. See Gregory J. Pond et al., Downstream
Effects
of
Mountaintop
Coal
Mining:
Comparing
Biological
Conditions Using Family- and Genus-Level Macroinvertebrate
Bioassessment Tools, 27 J. N. Am. Benthological Soc’y 717, 718
(2008) (explaining surface coal mining).
The minerals in the
rock reacted with the flowing water to release calcium,
bicarbonate, and sulfate ions.
See Emily S. Bernhardt et al.,
How Many Mountains Can We Mine? Assessing the Regional
Degradation of Central Appalachian Rivers by Surface Coal
Mining, 46 Envtl. Sci. & Tech. 8115, 8115 (2012).
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Index”), 2 which WVDEP and EPA had long used to measure the health
of streams.

The court noted that EPA considered Index scores

below 68 to indicate impairment and that, in 2009 when WVDEP
issued Fola’s renewal permit, WVDEP had generally shared that
view.

See

id.

at

677,

679

&

n.4.

The

trial

evidence

established that since 2003 Stillhouse Branch had consistently
scored well below 68, ranging from 31.6 to 58.17.
The

district

court

concluded

that

Id. at 696.

“when

conductivity

reaches 300 [µS/cm], it is more likely than not that” the Index
score

will

drop

below

68

biologically impaired.”

and

“the

subject

stream

will

be

Id. at 687 (citing EPA, A Field-Based

Aquatic Life Benchmark for Conductivity in Central Appalachian
Streams

(Final

Report),

EPA/600/R-10/023F,

at

A-36

(2011)).

Samples from Stillhouse Branch reported conductivity that was
ten times higher than this 300 µS/cm threshold.

Id. at 696–98.

The court found that Fola’s mining increased conductivity in
Stillhouse

Branch

and

that

“high

conductivity

in

downstream

Stillhouse Branch is causing -- or, at the very least materially
contributing to -- a significant adverse impact to the chemical
and biological components of the stream’s aquatic ecosystems” in

2

See A Stream Condition Index for West Virginia Wadeable
Streams 1-2 (2000), http://www.dep.wv.gov/WWE/watershed/bio_fish
/Documents/WVSCI.pdf.
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violation of the West Virginia narrative water quality standards
incorporated into Fola’s permit.
With
urging,

respect

to

rejected

burdensome.

Id. at 698.

remedy,

the

the

district

Coalition’s

court,

proposed

at

remedy

Fola’s
as

too

Instead, the court appointed a Special Master of

Engineering to monitor Fola’s implementation of less burdensome
methods Fola proposed.

Fola timely noted this appeal.
D.

A

court

contract.

must

interpret

NPDES

permit

as

it

would

a

Piney Run Pres. Ass’n v. Cty. Comm’rs, 268 F.3d 255,

269 (4th Cir. 2001).
the

an

district

court

Thus, to the extent that the judgment of
rests

on

interpretation

of

Fola’s

NPDES

permit, that interpretation constitutes a legal question, which
we review de novo.

Id.

But to the extent that judgment rests

on factual findings made after a bench trial, we can reverse
only if those findings are clearly erroneous.

Id.

II.
Fola

principally

contends

that

the

district

court

misinterpreted its permit.
In doing so, Fola presents a narrow argument.
expressly
Reply

Br.

acknowledges
at

3.

Fola

that

its

admits

permit
that

“incorporates”

“permit

shielded from violations of permit conditions.”
11

The company

holders

5.1.f.
are

Id. at 1.

not
And

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the company forgoes any claim that 5.1.f does not impose water
quality standards, including those found in 3.2.e and 3.2.i.
Fola’s

sole

argument

is

that

5.1.f

controls

the

conduct

of

WVDEP, the state regulator, and imposes no requirements on Fola,
the regulated entity.
Fola
argument.
but

is

offers

three

points

assertedly

supporting

this

First, the company maintains that 5.1.f is ambiguous

best

interpreted

as

a

regulation

authority, not the permit holder.

of

the

permitting

Second, Fola contends that

the district court failed to examine “extrinsic evidence,” which
it argues eliminates any ambiguity and demonstrates that, in the
“contemplation

of

the

parties,”

obligation on the permit holder.

5.1.f

clearly

imposed

no

Finally, Fola claims that our

holding and analysis in Piney Run requires a court to conclude
that 5.1.f imposes obligations only on the permitting authority.
We consider each of these arguments in turn.
A.
We

initially

examine

the

language

determine if it is indeed ambiguous.

of

Fola’s

permit

to

As we recognized in Piney

Run, “if ‘the language [of a permit] is plain and capable of
legal

construction,

permit’s meaning.”

the

language

alone

must

determine’

the

Piney Run, 268 F.3d at 270 (quoting FDIC v.

Prince George Corp., 58 F.3d 1041, 1046 (4th Cir. 1995)).

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Contrary to Fola’s assertions, the text of 5.1.f of the
permit

seems

prohibits

straightforward

“discharges

covered

water quality standards.

and

unambiguous.

by”

the

The

permit

provision

from

violating

Of course, it is the permit holder

that generates “discharges covered by” the permit.

Thus, the

provision controls the activities of the permit holder -- here
Fola.

The state agency simply drafts the permit.

That agency,

WVDEP, has no control over the permit holder’s discharges.
Further,

there

is

no

mention

in

5.1.f

of

“regulating,”

“drafting a permit,” or “determining effluent limits,” all core
activities

of

the

state

regulator.

Rather,

5.1.f focuses on the discharges themselves.

the

language

of

One would have to

rewrite 5.1.f substantially to read it as imposing obligations
on WVDEP. 3
applies

to

As written, the plain language of 5.1.f indicates it
Fola,

the

permit

holder,

not

WVDEP,

the

agency

granting the permit.
Review of the provisions surrounding 5.1.f further supports
this conclusion.

5.1.f is contained in a section of the permit

3

For example, if 5.1.f imposed requirements on the state
regulator rather than the permit holder, it would more naturally
read: “The discharge or discharges covered by a WV/NPDES permit
are to be of such quality regulated by the Department of
Environmental Protection so as not to cause violation of
applicable water quality standards adopted by the Department of
Environmental Protection that agency, Title 47, Series 2.”
Notably, these changes would require both insertions and
deletions.
13

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entitled

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“Conditions

subsection

entitled

Pg: 14 of 33

Applicable
“Duty

to

to

All

Comply;

Permits,”

and
The

Penalties.”

in

a

first

mandate of the subsection states, “The permittee must comply
with all conditions of a WV/NPDES permit.”

See W. Va. Code R.

§ 47-30-5.1.a (2009) (emphasis added).
This subsection then lists several ways a permit holder can
violate the permit separate and apart from violations of the
permit’s effluent limits.

For example, under this subsection, a

permit holder violates the permit when it “falsifies, tampers
with, or knowingly renders inaccurate any monitoring device or
method required to be maintained under a WV/NPDES permit.”
§ 47-30-5.1.d.
“knowingly

required

And a permit holder violates a permit when it

makes

certification
to

Id.

in
be

any
any

false
record

maintained

statement,
or

under

other
this

representation,

document

submitted

permit.”

Id.

or
or

§ 47-30-

5.1.e.
It seems unlikely that immediately following these clear
restrictions

on

permit

holders,

in

a

subsection

specifically

addressed to permit holders, the drafters inserted in 5.1.f a
directive
agency.

not

to

Indeed,

permit
it

holders,

makes

but

little

only
sense

to
for

the

regulating

5.1.f

to

be

incorporated into all coal mining permits, see id. § 47-30-5, if
5.1.f does not obligate the permit holder in any way.

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Accordingly,

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the

district

Pg: 15 of 33

court’s

conclusion

that

5.1.f

unambiguously regulates permit holders seems entirely warranted. 4
B.
Furthermore, rather than supporting Fola’s interpretation,
all relevant extrinsic evidence points to the conclusion that
5.1.f imposes obligations on the permit holder, not the state
permitting agency.
Fola’s argument to the contrary relies almost entirely on
statements from WVDEP and the West Virginia Legislature.

Fola

contends that these statements prove that neither body intended
5.1.f to create an obligation on permit holders to meet water
quality standards beyond the numerical effluent limits in the
permit.

The Legislature’s 2013 and 2015 amendments and WVDEP’s

statements certainly evince West Virginia’s present desire to
cease

enforcement

holders.

of

water

quality

standards

against

permit

But neither WVDEP’s current interpretation nor the

Legislature’s actions in amending state law in 2013 and 2015
constitute extrinsic evidence supporting Fola’s interpretation
of its 2009 permit.

4

Fola contends that the district court’s holding renders
the effluent limits in the permit superfluous.
But by Fola’s
own admission, the effluent limits do not delineate all the
discharges disclosed to the regulating agency.
5.1.f captures
those discharges, not explicitly regulated by effluent limits,
which nonetheless decrease water quality and harm the aquatic
ecosystem.
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And Fola is simply wrong in contending that “[t]here is no
evidence

that

West

Virginia

ever

intended”

to

hold

permit

holders liable for violations of water quality standards.
of Appellant at 34 (emphasis added).

Br.

In fact, Fola has provided

no evidence that the Legislature or WVDEP lacked this intent
when Fola’s renewal permit was issued in 2009.

Rather, the

record evidence indicates this was precisely what was intended.
In 2011, two years after the issuance of Fola’s current
permit,

WVDEP

pursued

an

enforcement

action

against

Fola’s

parent company based on violations of the exact water quality
standards at issue here as incorporated into the NPDES permit
through

5.1.f.

See

Complaint

in

Intervention

at

12,

United

States v. Consol Energy, Inc., No. 1:11-cv-0028 (N.D. W. Va.
Mar. 14, 2011), ECF No. 6-1.
to

injunctive

relief

to

And Fola’s parent company agreed

remedy

these

violations.

Consent

Decree, Consol Energy, No. 1:11-cv-0028 (N.D. W. Va. Jun. 15,
2011),

ECF

interpreted

No.

3-1.

5.1.f

to

Moreover,
require

coal

as

amend 5.1.f.

as

companies

permits to meet water quality standards.
Comments, at 1.

late

2015,

WVDEP

holding

NPDES

See WVDEP, Response to

This was the very reason why WVDEP attempted to

See id.

Fola nonetheless insists that 5.1.f cannot subject it to
any

substantive

obligations

because,

during

the

formal

rulemaking in which 5.1.f was added to West Virginia’s NPDES
16

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Doc: 74

program,

EPA

Filed: 01/04/2017

stated
rights

“substantive

that
or

the

Pg: 17 of 33

new

rules

would

obligations.”

not

alter

Revision

of

any
West

Virginia’s NPDES Program Transferring Authority over Coal Mines
and Coal Preparation Plants from the West Virginia Department of
Natural Resources; Division of Water Resources to Its Division
of Reclamation, 50 Fed. Reg. 2996, 2997 (Jan. 23, 1985).
argument

both

misreads

the

history

of

5.1.f

and

That

ignores

important record evidence.
5.1.f’s
standards
mining

prohibition

originated

in

regulations.

Reclamation

against
pre-1984
See

Regulations,

ch.

violating
West

water

Virginia

West

Virginia

20-6,

ser.

quality

surface

Surface

VII,

coal

Mining

§ 6B.04

(1983)

(“Effluent Limitations - Discharge from the permit area shall
not violate effluent limitations or cause a violation of water
quality standards.”).

At that time, the surface coal mining

regulations clearly recognized that permit holders were subject
to enforcement actions for violating both effluent limitations
and

water

quality

standards.

Id.

In

1984,

West

Virginia

consolidated its surface coal mining regulations with its water
pollution

regulations.

See

Preamble

to

Proposed

Regulations

Consolidating the Article 5A and Article 6 Program (filed Nov.
9, 1984).
governing

As a result of this consolidation, the regulations
NPDES

permits

for

coal

17

mines

thereafter

included

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Pg: 18 of 33

provisions like 5.1.f that were previously found in the surface
mining regulations.

See WVDEP, Response to Comments, at 1.

The origin of 5.1.f renders untenable Fola’s reliance on
EPA’s determination that the consolidated new regulations did
not alter “substantive rights or obligations.”
The

new

regulations

did

not

alter

any

EPA was correct.

obligations

under

a

permit; they simply brought existing obligations on surface coal
mines

into

a

facilities

were

obligations
Thus,

single

EPA

already

prior
had

regulatory

to

no

the

reason

scheme.

subject

to

Surface

substantively

consolidation
to

coal

conclude

mining

identical

of

the

regulations.

that

the

consolidated

regulations altered any “substantive rights or obligations.”
Moreover, although ignored by Fola, EPA’s view as to the
reach of 5.1.f has been consistent, as has the acceptance by
courts of EPA’s view when interpreting similar water quality
provisions.
has

In contrast to WVDEP’s recent change of heart, EPA

remained

clear

through

the

obligations on permit holders.

years

that

5.1.f

imposes

Before us, EPA has filed an

authoritative amicus brief pointing this out and reiterating its
position.

As EPA notes in its brief, some of the NPDES permits

that

itself

EPA

has

issued

impose

18

narrative

water

quality

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standards

like

those

standards

have

been

in

Fola’s

enforced

Pg: 19 of 33

permit. 5
against

That

quality

permit

NPDES

water

holders

demonstrates the error in Fola’s contention that 5.1.f cannot
reasonably

be

interpreted

to

impose

obligations

on

permit

holders like Fola.
In sum, both the plain language of the provision and the
extraneous evidence support the district court’s holding that
5.1.f

constitutes,

enforceable

against

as

it

NPDES

has

for

permit

decades,

holders,

a

not

regulation
the

state

permitting agency.
C.
Finally, Fola argues that our holding in Piney Run somehow
prohibits this conclusion.
that

permit

holders

“who

According to Fola, Piney Run held
disclose

their

pollutants

to

the

permitting agency and thereafter comply with the effluent limits
5

See, e.g., EPA NPDES Permit No. NH0100099 for the Town of
Hanover, New Hampshire, pt. I.A.2, .3 and .6, https://www3.epa
.gov/region1/npdes/permits/2015/finalnh0100099permit.pdf;
EPA
2015 Multi-Sector General Permit for Stormwater Discharges
Associated
with
Industrial
Activity,
pt.
2.2.1,
https://
www.epa.gov/sites/production/files/2015-10/documents/msgp2015
_finalpermit.pdf.
Moreover, courts have enforced water quality
standards
provisions
when,
as
here,
the
NPDES
permit
incorporates these standards.
See, e.g., Nat. Res. Def.
Council, Inc. v. Cty. of Los Angeles, 725 F.3d 1194, 1199, 1205
(9th Cir. 2013); Nw. Envtl. Advocates v. City of Portland, 56
F.3d 979, 985–90 (9th Cir. 1995); Nat. Res. Def. Council v.
Metro. Water Reclamation Dist. of Greater Chicago, 175 F. Supp.
3d 1041, 1049–54 (N.D. Ill. 2016).
In support of its contrary
view, Fola relies on inapposite, unpublished, and overruled
cases.
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in their NPDES permits are shielded from liability” under the
Clean Water Act.

Br. of Appellant at 43.

Therefore, Fola

contends, since it “disclosed the presence of conductivity in
its

discharges

and

has

complied

with

the

effluent

limits

established by . . . WVDEP,” it too is shielded from liability
under

the

permit.

Act,

Id.

even

if

it

violated

provision

5.1.f

of

its

There are multiple problems with this contention.

First, and most fundamentally, Fola misstates our holding
in Piney Run.

We expressly held that a permit shields “its

holder from liability . . . as long as . . . the permit holder
complies with the express terms of the permit and with the Clean
Water Act’s disclosure requirements.”
259 (emphasis added). 6
wishes

away

its

Piney Run, 268 F.3d at

Fola ignores the emphasized language and

violation

permit” -- provision 5.1.f.

of

one

of

“express

terms

of

the

Piney Run offers no support for

this approach.
Fola attempts to bolster its misunderstanding of Piney Run
by misinterpreting the careful examination of the history of the
Clean Water Act we set forth in that case.

See id. at 264-66.

We recognized that requirements that permit holders meet water

6

Of course, to obtain the benefits of the permit shield a
permit holder must also not discharge a pollutant in excess of
the effluent limitations for that pollutant as listed in the
permit. Piney Run, 268 F.3d at 259. That requirement is not at
issue here.
20

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quality

Filed: 01/04/2017

standards

had

been

Pg: 21 of 33

the

“primary

means

of

federal

regulation” prior to the 1972 enactment of the Clean Water Act.
Id. at 264.

The Act provided regulators with another tool --

“direct limitations on the discharge of pollutants” in the form
of numerical caps on those discharges -- and a means to regulate
-- NPDES permits.

Id. at 265 (quoting Friends of the Earth,

Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 151 (4th
Cir. 2000)(en banc)).
In Piney Run, we explained that adherence to its permit
shielded a permit holder from liability under the Act.
contrary

to

numerical

Fola’s

apparent

limitations

constituted

the

Clean Water Act.

only

belief,

on
proper

we

specific
subject

did

not

pollutant
of

regulation

Id.

But

hold

that

discharges
under

the

Rather, we noted that, despite the Clean Water

Act’s “shift in focus of environmental regulation towards the
discharge of pollutants, water quality standards still have an
important role in the [Clean Water Act’s] regulatory scheme.”
Id. (emphasis added).
Compounding its error, Fola refuses to recognize that Piney
Run involved very different issues than those presented here.
In

Piney

permit’s

Run,

we

did

requirement

not

that

consider
the

permit

the

enforceability

holder

adhere

to

of

a

water

quality standards, let alone the enforceability of the specific
narrative water quality standards required by West Virginia’s
21

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NPDES permit.
limitations

Filed: 01/04/2017

Pg: 22 of 33

Piney Run involved the enforcement of numerical

on

the

discharge

of

different Maryland NPDES permit. 7
that

the

holder

of

a

Maryland

pollutants

under

a

very

In that context, we concluded
NPDES

permit

who

“discharges

pollutants that are not listed in its permit” was nonetheless
shielded

from

liability

“adequately

disclosed”

authority.”

under
those

the

Clean

discharges

Water
“to

Act

the

if

it

permitting

Id. at 268.

But this conclusion in Piney Run does not allow an NPDES
permit holder in West Virginia to ignore 5.1.f’s requirement
“not to cause violation of applicable water quality standards.”
Indeed, although Piney Run involved a permit that regulated only
numerical

effluent

limitations,

rather

than

also

directing

adherence to water quality standards like the permit at issue
here,

we

iterated

and

reiterated

that

only

“follow[ing]

the

terms of their NPDES permits” allows permit holders to avoid
liability.

Id. at 265; see also id. at 259 (explaining that to

be shielded from liability under the Clean Water Act, a permit
holder must comply “with the express terms of [its] permit”).
Piney Run provides Fola no way to avoid liability if Fola has
7

Maryland’s NPDES permits do not contain a provision
similar to 5.1.f. Rather, unlike in West Virginia, the Maryland
permitting agency simply will not issue a permit unless it
“finds that the discharge meets . . . applicable State and
federal water quality standards.”
Md. Code Ann., Envir. § 9324(a)(1) (West 2016).
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not complied “with the express terms of its permit,” including
provision 5.1.f.
Nothing in Piney Run forbids a state from incorporating
water quality standards into the terms of its NPDES permits.
Rather, Piney Run held, as we do today, that a permit holder
must comply with all the terms of its permit to be shielded from
liability.

The terms of Fola’s permit required it to comply

with water quality standards.

If Fola did not do so, it may not

invoke the permit shield.

III.
Having
imposes

no

rejected

Fola’s

obligations

on

principal
it,

we

contention

turn

to

that

Fola’s

5.1.f

remaining

argument -- that the district court erred in finding that Fola
violated 5.1.f.
A.
Through 5.1.f., Fola’s permit incorporates narrative water
quality standards prohibiting discharges into Stillhouse Branch
that are “harmful” or have a “significant adverse impact” on
aquatic ecosystems. 8

In a long, remarkably thorough opinion, the

8

These standards provide in relevant part:
3.2 No sewage, industrial wastes or other wastes
present in any of the waters of the state shall cause
therein or materially contribute to any of the
following conditions . . .
(Continued)
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district court explained its reasons for concluding that Fola’s
discharges into Stillhouse Branch violated these narrative water
quality standards in Fola’s permit.
testimony,

reports,

charts,

The court relied on the

studies,

and

exhibits

from

experienced scientists who had published extensively in peerreviewed journals.
contention

that

All of the experts supported the Coalition’s

Fola

violated

the

the

experts

used

to

determine

permit’s

narrative

water

the

Virginia

Stream

quality standards. 9
In

doing

Condition

so,

Index

West

whether

biologically compromised Stillhouse Branch.

Fola’s

discharges

Both EPA and WVDEP

have long used the Index to measure water quality.

When a

. . .
3.2.e. Materials in concentrations which are
harmful, hazardous or toxic to man, animal or
aquatic life;
. . .
3.2.i.
Any
other
condition,
including
radiological exposure, which adversely alters the
integrity of the waters of the State including
wetlands; no significant adverse impact to the
chemical, physical, hydrologic, or biological
components
of
aquatic
ecosystems
shall
be
allowed.
W. Va. Code R. § 47-2-3 (2016).
9

Fola offered a witness whom the district court found
“h[eld] no training in the study of ecology” and, prior to being
retained by Fola as an expert in this litigation, “had never
analyzed the type of ecological data” at issue here.
Fola, 82
F. Supp. 3d at 681. On appeal, Fola does not suggest that the
district court should have credited this witness’s testimony.
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Pg: 25 of 33

stream’s Index score falls below 68, EPA considers the stream
impaired

under

experts

explained

discharges

33

caused

U.S.C.

§

that

the

the

1313(d).

See

release

conductivity

of

in

infra
ions

n.11.
from

Stillhouse

The
Fola’s

Branch

to

increase and sensitive insect species to die, thereby causing
the stream’s Index score to fall well below 68.
Supp. 3d at 696.

Fola, 82 F.

On the basis of the expert evidence, the

district court found that Fola’s discharges caused or materially
contributed to the impairment of Stillhouse Branch by increasing
the conductivity of the stream.
On appeal, Fola makes no contention that the district court
erred

in

materially

finding

that

contributed

Stillhouse Branch.

Fola’s
to

discharges

the

in

fact

biological

caused

impairment

or
in

And Fola does not argue that narrative water

quality standards cannot be enforced; it could not do so given
that the Supreme Court has held to the contrary.

See PUD No. 1

of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 716
(1994) (explaining that the Clean Water Act “permits enforcement
of broad, narrative criteria” and “only one class of criteria,
those

governing

‘toxic

pollutants

listed

pursuant

to

section

1317(a)(1),’ need be rendered in numerical form”).
Instead, Fola offers brief and largely derivative “process”
arguments.

A substantial portion of those arguments involve

Fola’s mischaracterization of the district court’s careful and
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detailed

fact-finding.

finding,

which

of

Fola

course

Pg: 26 of 33

attempts

can

only

to

be

treat

reversed

that
if

factclearly

erroneous, as “rulemaking” subject to de novo review.
B.
First, Fola maintains that it was deprived of “fair notice”
that water quality standards were enforceable provisions of its
permit.
the

This assertion rests on Fola’s own misinterpretation of

language

acknowledge
above.

in

that

its

2009

language’s

permit

and

history,

a

all

studied
of

which

refusal
we

to

detail

Suffice it to say again that, when the Coalition filed

this lawsuit in March 2013, Fola had been bound by the 2009
permit at issue here for four years.

Moreover, in 2011, two

years prior to the commencement of this action, WVDEP brought
suit

to

enforce

the

water

quality

against Fola’s parent company.

standards

at

issue

here

And, prior to initiation of this

case, Fola’s parent company had in fact agreed to take measures
to remedy its violations of those water quality standards.
thus

had

ample,

personalized

notice

that

the

water

Fola

quality

standards in a West Virginia NPDES permit were enforceable, and
would be enforced, against a permit holder.
Fola next contends that it relied on guidance from WVDEP
that the State would not pursue any enforcement action based on
conductivity or water quality standards.

But again as explained

above,

WVDEP

Fola

offers

no

evidence
26

that

made

any

such

Appeal: 16-1024

Doc: 74

assurance

in

Moreover,

Filed: 01/04/2017

2009

such

when

Pg: 27 of 33

WVDEP

contemporaneous

last

renewed

assurances

Fola’s

seem

permit.

unlikely

given

WVDEP’s decision in 2011 to bring an enforcement action based on
these very water quality standards.

Further, even if Fola had

offered evidence that WVDEP made such assurances when it issued
Fola’s renewal

permit

in

2009,

that

would

Coalition from bringing this lawsuit.
citizen

suit

situations,

provision

like

the

of

one

the
at

the

Water

in

enforcement agency declines to act.

foreclose

For Congress enacted the

Clean

hand,

not

Act

to

address

which

the

traditional

See Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 53, 60 (1987).
An

agency’s

informal

assurance

that

it

will

not

pursue

enforcement cannot preclude a citizen’s suit to do so.

See 33

U.S.C. § 1365(b)(1)(B).
Finally, Fola argues that the district court engaged in
unlawful

rulemaking.

Hornbook

law

defines

principle

or

That

standard

“a

The

applicable

as

“a

developed

by

some

findings
case.

district

principle

based

on

is

rule”

administrative authorities.”
2016).

argument

or

the

court

similarly
generally
authority

unsound.
applicable
including

1 Admin. L. & Prac. § 1:20 (3d ed.
did

standard.”
evidence

not

create
The

presented

any

court
in

“generally

made

this

factual

particular

The only rules for which the court found Fola liable are

contained in its permit, specifically §§ 47-30.5.1.f and 47-227

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3.2.e and -3.2.i.

Pg: 28 of 33

These rules have long been incorporated into

Fola’s permit, and EPA has never approved their removal.

They

remain unchanged and controlling.
We must reject Fola’s attempts to transform the district
court’s detailed fact-finding into rulemaking.

After carefully

assessing the record before it, the district court found as a
fact

that

that

a

failing

Index

score

indicated

an

impaired

stream and that Fola’s mining caused the increased conductivity
that

resulted

in

that

impairment.

supported by the record evidence.

These

findings

are

well

None are clearly erroneous.

Some even rest on undisputed facts.

For example, EPA has

identified, and Fola does not dispute, “mining” as the source of
the impairment of Stillhouse Branch.
Virginia

Integrated

Water

Quality

See WVDEP, 2012 Final West
Monitoring

and

Assessment

Report List Page 14 (reviewing the 2012 Clean Water Act Section
303(d) Impaired Waters List).
its

mine

the

And

Branch.

is

WVDEP

disagree,

that

assessment

of

§ 3.2.i

only

itself

the
the

narrative

mine

Moreover, Fola stipulated that
that

has

Index

criteria”

Stillhouse

Branch.

WVDEP,

Permitting

Guidance

for

explained,

“was

biological

discharges

of

applicable

Justification

Surface

and

Coal

and

Mining

does

designed

the
to

Stillhouse

Fola

specifically

component

as

into

47

waters

not
for

C.S.R.

2

such

as

Background
Operations

for
to

Protect West Virginia’s Narrative Water Quality Standards, 47
28

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C.S.R.

2

Filed: 01/04/2017

§§

3.2.e

Pg: 29 of 33

and

3.2.i,

at

4

(2010),

http://www.dep.wv.gov/pio/Documents/Narrative/Narrative Standard
s Guidance Justification.pdf.
Despite this historic consensus, Fola argues that WVDEP has
recently

rejected

the

Index

as

a

sole

determinant

of

water

quality, and that the court has therefore “usurped” the agency’s
role

in

its

use

of

the

Index.

This

argument

rests

on

a

mischaracterization of the district court’s use of the Index.
The court did not enshrine the Index as the sole acceptable
method of establishing violations of water quality standards.
Rather, the court explained that it only relied on the Index
“[i]n

the

absence

of

methodological alternative.”

[WVDEP]

advancing

a

meaningful

Fola, 82 F. Supp. 3d at 679.

On

appeal, neither Fola nor WVDEP points to any “methodological
alternative” to the Index.

In the absence of any alternative,

the district court simply applied the methodology both WVDEP and
EPA have applied for years.
The district court found that, until 2012, EPA and WVDEP
had generally agreed to use an Index score of 68 to determine
whether water quality standards were being met.

If a stream

scored below 68, the stream was to be listed as impaired.

29

Id.

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at 677. 10
See,

Filed: 01/04/2017

Pg: 30 of 33

The record offers abundant support for this finding.

e.g.,

Administrator,

Letter
to

from

Shawn

Randy

C.

M.

Garvin,

Huffman,

EPA

Regional

Secretary,

WVDEP

[hereinafter Garvin Letter], Enclosure 1, at 16 (Mar. 25, 2013)
(“When

determining

whether

to

add

waters

to

West

Virginia’s

Section 303(d) list, EPA used West Virginia’s narrative water
quality criteria (W. Va. CSR §§ 47-2-3.2(e) & (i)) as applied to
the

aquatic

life

uses,

and

WVDEP’s

bioassessment

listing

methodology for its 2010 Section 303(d) list (i.e., [the Index])
. . . .”); see also WVDEP, 2010 West Virginia Integrated Water
Quality Monitoring and Assessment Report 14 (2010) (explaining
the direct relationship between § 47-2-3.2.i, Index scores, and
impaired water listing).
Indeed, Fola concedes that EPA and WVDEP have long used the
Index.

Neither agency -- nor anyone else before this case --

suggested that this use required promulgation of a formal rule.
Rather, the Index has been used, as the district court used it,
as

a

method

for

assessing

compliance

10

with

narrative

water

Prior to 2012 when it ceased using the Index to determine
impairment, WVDEP had attempted to include a “gray-zone” listing
between 60.6 and 68.0.
EPA rejected this approach as
“unsupportable,” and continues to use 68 as the threshold. See
Garvin Letter, Enclosure 1, at 12 n.3.
For our purposes, this
dispute is immaterial because the district court found that
Stillhouse Branch had an Index score ranging from 31.60 to
58.17.
Fola, 82 F. Supp. 3d at 696.
Fola does not challenge
these findings.
30

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quality standards.

Pg: 31 of 33

Far from creating a rule for determining

violations of water quality standards, the court simply made a
factual

determination

methodology.

using

Employing

the

this

Index

as

methodology,

a

well-established

the

district

court

came to the same conclusion as EPA had -- Stillhouse Branch was
impaired. 11
Similarly,
court’s

contrary

determinations

to
as

Fola’s
to

assertions,

conductivity

findings of fact, not rulemaking.

also

the

district

constituted

The court heard extensive

expert testimony on the causal relationship between increased
conductivity in Appalachian streams and impairment as evidenced
by declining Index scores.
court

credited

authoritative

the

EPA

Fola, 82 F. Supp. 3d at 679-86.

testimony

publication.

of

accepted
All

experts

concluded

that

and

The
an

mining

activities cause increases in conductivity, which in turn cause
impairment.
The

Id. at 686–96.

court

noted

that

peer-reviewed

scientific

articles

first recognized the relationship of mining, conductivity, and

11

While Fola focuses on notice as it relates to procedure,
it is worth mention that Fola also had notice of the court’s
factual determination that Stillhouse Branch was impaired.
WVDEP (with EPA approval) has listed Stillhouse Branch on its
impaired waters list based on biological impairment since 2006.
See WVDEP, 2006 Integrated Water Quality Monitoring and
Assessment Report List Page 15 (2006); id. at 20 (explaining
that WVDEP assessed biological impairment using the Index).

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decreased Index scores in 2008, a year before issuance of Fola’s
renewal permit.

See id. at 690 (citing Pond et al., supra n.1).

Other articles strengthened these findings.

Id. (citing, among

others, M.A. Palmer et al., Mountaintop Mining Consequences, 327
Sci. 148 (2010) (finding that as conductivity increased, Index
scores decreased)).

In rebuttal, Fola offered an expert whom

the district court found unqualified -- an assessment Fola does
not challenge on appeal.
Finally, the relief the district court ordered belies any
suggestion that it engaged in rulemaking.

The court had the

“discretion to determine” appropriate relief.

See Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 192 (2000).

In exercising that discretion, the district

court

order

refused

to

Fola

to

implement

the

Coalition proposed, a reverse osmosis system.
this

solution

“too

expensive

and

too

solution

the

The court deemed

uncertain.”

Order

Specifying Relief at 5, Fola, No. 2:13-cv-5006 (S.D. W. Va. Dec.
8, 2015), ECF No. 183.

Instead, the court appointed a special

master to oversee implementation of Fola’s proposed solution,
which focused on water management practices that respond to the
unique characteristics of Stillhouse Branch.

Id. at 6–7.

The

court did not require Fola to achieve any particular Index score
or

conductivity

level,

but

simply

ordered

Fola

to

take

appropriate measures either to reduce the conductivity in its
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discharges or to increase the Index score of Stillhouse Branch.
Id. at 1.

The relief ordered by the district court reflects its

careful fact-based findings, not unprincipled rulemaking.
In sum, Fola’s arguments as to why the district court erred
in finding that Fola violated its permit, like Fola’s arguments
as to the permit’s reach, uniformly fail.

IV.
Accordingly, for the reasons set forth above, the judgment
of the district court is
AFFIRMED.

33