Complex environmental regulations can frustrate the most sophisticated companies. No matter how much time, money and effort is put into environmental safety, changing rules and contradictory directives can trigger significant legal exposure. To alleviate this problem, “permit shield” protection was established so that companies could avoid civil liability by following government instructions in regard to a particular site. This means that when a site is regulated by a National Pollutant Discharge Elimination System permit, it cannot be the subject of government sanctions or civil lawsuits.
While the permit shield is a powerful defense, companies must be diligent about following regulations or risk losing this legal protection. Affirming a decision from the Southern District of West Virginia, the U.S. Court of Appeals for the Fourth Circuit recently held that the Fola Coal Company could be sued by environmental groups because the company did not follow Clean Water Act standards. The decision offers guidance on issues such as:
- Rules not listed in the permit — Companies who are operating under a permit cannot violate pollution standards, even those that are not “delineated in the permit.”
- State vs. private actions — Though the State of West Virginia indicated that they would not pursue this type of case against Fola, the court held that this did not bar private environmental groups from suing to enforce the alleged violations.
- Numerical discharge limits — Despite the fact that Fola’s permit did not establish a numerical limit for effluent discharge, the Fourth Circuit determined that the regulatory language did apply.
Whether your company is already operating under a permit or you believe one will be issued, it is vital to maintain strict compliance so that you can benefit from permit shield protection. A knowledgeable environmental defense attorney can advise you on how to comply with complex federal and state regulations. Pullin, Fowler, Flanagan, Brown & Poe represents clients in West Virginia, Ohio and Kentucky. To schedule a consultation, call 304-344-0100 or contact us online.