6th Cir. Upholds Clean Water Act “Permit Shield” Defense

The Sixth Circuit Court of Appeals has ruled that ICG Hazard, LLC’s Clean Water Act (CWA) general permit defense, located in the CWA at 33 U.S.C. 1342(k), shielded the mining company from a CWA enforcement lawsuit filed by the Sierra Club. The case is Sierra Club v. ICG Hazard, LLC, decided January 27, 2015. Relying on the Fourth Circuit Court of Appeal’s 2001 ruling in Piney Run Preservation Association v. County Commissioners, 268 F.3d 255 (4th Cir. 2001), a divided panel of the Court of Appeals held that the general permit issued pursuant to delegated authority by the Kentucky Division of Water shielded ICG Hazard from this lawsuit. The pollutant in question is selenium, and the Court of Appeals held that the agency was aware of the potential for discharges from ICG Hazard’s surface mining operations. The Court of Appeals also held that the permit shield applies to both individual and general National Pollutant Discharge Elimination System (“NPDES”) permits. Moreover, the provisions of the CWA presumably trump contrary provisions of Surface Mining Act.

There may be a case to be made that arguably there is now a split in the circuits on this issue. On July 11, 2014, the Fourth Circuit a Court of Appeals, in the case of Southern Appalachian Mountain Stewards, et al., v. A.G. Coal Corporation, rejected this defense, holding that the defendant coal company, in seeking an NPDES permit from the Virginia permitting authority, failed to provide the agency with adequate information regarding its potential discharge of selenium.

The decisions in these cases may turn on the nuances of each state’s permit application requirements, which may yield inconsistent results.