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Ohio Valley Environmental Coalition v. FOLA Coal

ELR Citation: 44 ELR 20003
Nos. 2:12-3750, (S.D. W. Va., 12/19/2013) (Chambers, J.)

A district court held a mining company liable under SMCRA and the CWA for discharging excessive amounts of selenium into the waters of West Virginia. The company argued that the CWA's permit shield defense protected it from liability because selenium was not a pollutant whose discharge was limited under the terms of its state permit. But because the company's discharge of selenium violated applicable water quality standards, and because water quality standards are an enforceable effluent limitation under the permit, the permit shield defense does not protect the company from liability here. And because the environmental groups that filed suit against the company provided evidence demonstrating an actual violation of the CWA and SMCRA, the court held the company was liable. But the court held in abeyance the groups' claims as to to the number of violations as well as its claims for injunctive relief and civil penalties.