Finding that mining industry arguments in the case would “tear a large hole” in the Clean Water Act, a unanimous panel of the Fourth Circuit Court of Appeals upheld the liability of A&G Coal Corp. for discharges of selenium that were not authorized by its National Pollutant Discharge Elimination System (NPDES) permit for its mining activities at a site in Virginia. Southern Appalachian Mountain Stewards (SAMS), et al. v. A&G Coal Corp. (4th Cir., July 11, 2014). A&G had argued that the Clean Water Act (CWA) permit shield, under which discharge of a pollutant does not violate the CWA provided the permittee complies with the express terms of its permit if the pollutant was “within the reasonable contemplation” of the regulator at the time the permit was issued, Piney Run Preservation Association v. County Commissioners of Carroll County, MD (4th Cir. 2001), protected it from liability for discharges of selenium from its mining activities. The Fourth Circuit held that in order to take advantage of the permit shield, (1) the permittee must be in compliance with all permit terms and the CWA’s disclosure requirements; and (2) the discharges must be within the reasonable contemplation of the regulator when the CWA permit was issued. Because A&G failed to test for selenium in its discharges, even though selenium is included as one of 15 “other toxic pollutants” listed in NPDES testing requirements, the court held that A&G failed to comply with disclosure requirements under the CWA. Because A&G failed to meet the disclosure compliance requirement, it was unnecessary for the Court to address the “reasonable contemplation” test. However, the Court observed that A&G’s position that selenium was within the reasonable contemplation of the regulator was inconsistent with A&G’s failure to even mention selenium in its application. The SAMS ruling appears to narrow the CWA permit shield which had been outlined in the Fourth Circuit’s 2001 Piney Run decision.
For more information on Clean Water Act permit shield requirements and issues, contact Steve O’Day or Dave Moore.