“Permit Shield” Defense Unavailable When Presence of Pollutant Was Not Disclosed In Permit Application Process


The Fourth Circuit Court of Appeals has issued a ruling in the case of Southern Appalachian Mountain Stewards v. A & G Coal Corporation. The Court of Appeals affirmed the lower court’s decision in a Clean Water Act, 33 U.S.C. §§ 1251, et seq. (“CWA”), citizen suit lawsuit that A & G could not assert the “permit shield” defense. A & G operates a coal mine in Virginia, and has a National Pollutant Discharge Elimination System (“NPDES”) permit; the permit application did not list selenium as a pollutant because the coal company argued that it had no reason to believe that this toxic pollutant was discharged from its facility, and that the permit shield defense of CWA Section 1342(k) was available. Sampling at the outfalls disclosed the presence of selenium, but the parties disagree as to whether the concentrations violate any state water quality standards. The Court of Appeals closely examined the disclosures required of an NPDES permit applicant, and determined that A & G had not made an adequate disclosure to trigger the permit shield defense. The failure to fully comply with these disclosure requirements, especially regarding a substance like selenium, meant that A & G could not deploy this defense to liability.

The case will return to the district court to determine whether there is, in fact, a violation of the Virginia water quality standards applicable to selenium. The case has attracted considerable interest; briefs were filed on behalf of the American Petroleum Institute, the National Mining Association, the National Association of Home Builders, and the Virginia Mining Association.

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