Phoenix, AZ


Fourth Circuit Narrows Permit Shield for General NPDES Permits under Clean Water Act

Jul 25, 2014

      On July 11, 2014, the Fourth Circuit in Southern Appalachian Mountain Stewards, et al. v. A&G Coal Corporation narrowed the shield that protects NPDES permit holders from liability for discharges under the Clean Water Act. The court held that the shield did not protect the permit holders from liability for discharges of pollutants not specifically listed in their general permit.
      In A&G, the permit holder, A&G Coal Corporation, had unpermitted concentrations of selenium in its discharge. A&G’s permit did not identify selenium, and A&G did not disclose that selenium may be present in the discharge. A&G argued, however, that, because it was not aware of the presence of selenium, it was not obligated to disclose it. Further, it contended that, because the permitting authority was aware that selenium had been present in similar, nearby operations, it had “reasonably contemplated” the possibility of selenium in the company’s discharge. The lower court rejected the argument, finding that the shield did not apply because the permit did not identify selenium and the company did not disclose its potential presence.
      On appeal, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit upheld the lower court’s ruling, rejected A&G’s contention that it was not obligated to disclose selenium, and held A&G liable for failing to properly test for and document the presence of selenium in its permit application. The Court explained that if it were to accept A&G’s contention, it would assign a “passive role” to permit applicants, encourage “willful blindness,” and “tear a large hole in the [Clean Water Act], whose purpose it is to protect the waters of Appalachia and the nation and their healthfulness, wildlife, and natural beauty.”
      The Sixth Circuit, in Sierra Club v. ICG Hazard, and the Ninth Circuit, in Alaska Community Action on Toxics, et al., v. Aurror Energy Services, LLC, et al. are also set to determine whether the permit shield protects releases not explicitly enumerated in a general permit.

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