Federal Court in West Virginia Rejects NPDES Permit Modifications through WVDEP Administrative Orders

Environmental Alert

(by Kip Power)

Companies holding National Pollutant Discharge Elimination System (NPDES) permits issued by the West Virginia Department of Environmental Protection (WVDEP) (known as WV/NPDES Permits) should take note that any adjustments to the effluent limits in those permits that are made through WVDEP administrative orders (as part of enforcement settlements or otherwise) may provide less than complete protection against future enforcement actions. On March 24, 2020, the federal District Court for the Northern District of West Virginia issued yet another decision in a line of cases establishing that WV/NPDES Permits may only be modified through a regulatory process that involves public notice, an opportunity for comments, and compliance with all of the other procedures mandated by WVDEP regulations for such permit changes. Ohio Valley Environmental Coalition and The Sierra Club v. Eagle Natrium, LLC, Civil Action No. 5:19-cv-00236 (March 24, 2020 Memorandum Opinion and Order) (Bailey, J.) (updated and revised, April 13, 2020).

In Eagle Natrium, Plaintiffs filed a citizen suit under the federal Clean Water Act (CWA) based on numerous self-reported discharges from the Defendant’s chlor-alkali plant located in Natrium, West Virginia that allegedly exceeded the effluent limits for (among other parameters) mercury and benzene hexachloride (BHC) found in the Defendant’s WV/NPDES Permit. The Defendant sought summary judgment on the basis that the WVDEP had previously commenced and was diligently prosecuting an enforcement action against it for the same violations, which serves as a statutory bar to CWA citizen suits.

In ruling against the Defendant with respect to the alleged violations of its mercury limits, the Court found that the WVDEP’s pending civil action sought to enforce interim mercury limits that had been established by that agency through an administrative order (and two subsequent extensions of that order) that had not been the subject of public notice and comment.  Accordingly, even though those limits were referenced during the initial NPDES permitting process as ones that might become effective at a later date, for purposes of the CWA citizen suit provision they were not considered to be true WV/NPDES permit limits. Given this (and because the interim limits were several orders of magnitude higher than the mercury limits set forth in the Defendant’s WV/NPDES Permit), there had been 117 exceedances of the permit’s mercury effluent limits over the last four years which were not being “diligently prosecuted” because they were not a part of the WVDEP’s civil enforcement action. The Court based its decision on several opinions issued by federal courts in West Virginia and other states, as well as the recent decision of the U.S. Court of Appeals for the Fourth Circuit in Sierra Club v. U.S. Army Corps of Engineers, 909 F.3d 635 (4th Cir. 2018) (citing some of that precedent).

By contrast, the Court granted summary judgment to the Defendant as to Plaintiffs’ allegations concerning violations of the BHC effluent limits in its WV/NPDES Permit (about which there was no dispute regarding the applicable limits). The Court observed that the substances that were causing violations of those limits had been left in the groundwater and soil as a result of manufacturing activities that had ceased more than 50 years prior to the Defendant’s acquisition of the property. The Defendant had already spent more than $1 million in seeking to reduce the concentrations of BHCs emanating from the site and Consent Orders issued by the WVDEP assessed significant penalties for past BHC effluent limit violations. In addition, those Consent Orders will require that the Defendant spend significant additional funds in its continuing efforts to prevent future exceedances of the BHC limits. In light of these findings, the Court held that Plaintiffs had not satisfied their “heavy burden” of proving that the WVDEP’s Consent Orders did not represent diligent enforcement as to that aspect of the Defendant’s WV/NPDES Permit.

The decision in Eagle Natrium highlights the importance of considering the specific bases for a facility’s identified effluent limits during pre-acquisition due diligence efforts, and as a part of ongoing environmental compliance management. Where it appears that more favorable limits have been allowed though a mechanism that did not include the normal NPDES permitting process, it may be worth considering steps to solidify their legal validity. This is especially true as to water quality-based effluent limits that are scheduled to apply in the future, since the CWA’s anti-backsliding provision generally precludes the relaxation of such limits after they have become effective.

Should you have questions about the Court’s decision in Eagle Natrium or the WVDEP’s regulatory program that implements the Clean Water Act in West Virginia, please contact Christopher B. (Kip) Power at (681) 265-1362 or cpower@babstcalland.com.

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