Anti Mining Group Appeals Adverse Clean Water Act “Permit Shield” Ruling
January 8, 2020
By: Robert G. McLusky and Chris M. Hunter
In September, a federal district court in Virginia gave broad effect to the Clean Water Act “permit shield.” We have written before of the ruling in Southern Appalachian Mountain Stewards (SAMS) v. Red River Coal Company. The court’s ruling was notable because it extended the “permit shield” to entire “outlets” not expressly controlled by the NPDES permit and not just to individual pollutants within an otherwise permitted waste stream. But that’s not what SAMS has appealed.
Instead, SAMS has appealed a ruling that the Clean Water Act “permit shield” also effectively shielded Red River from a suit under the Surface Mining Control and Reclamation Act (“SMCRA”). Section 702 of SMCRA provides that “[n]othing in this chapter shall be construed as superseding, amending, modifying, or repealing … the [Clean Water Act] or any rule or regulation promulgated thereunder.” 30 U.S.C. § 1292(a)(4). Relying on a decision of the 6th Circuit in Sierra Club v. ICG Hazard, LLC, 781 F.3d 281 (6th Cir. 2015), the district court ruled that this provision prevented SAMS from using SMCRA as a means for challenging the same discharges as were subject to the Clean Water Act permit shield.
SAMS has filed its opening brief in the 4th Circuit. There, it advances two arguments—both directed at the interplay between SMCRA and the Clean Water Act.
First, SAMS argues that Sections 301 and 510 of the Clean Water Act require dischargers to meet limits necessary to achieve water quality standards and allows states to adopt more stringent regulations than required by the Clean Water Act. Continuing, SAMS argues that the Virginia State SMCRA rules requiring compliance with water quality standards are an example of such “more stringent” State provisions that are expressly authorized by the Clean Water Act. Accordingly, it argues, since these [SMCRA] standards are expressly recognized and allowed by the CWA, then they cannot be construed as “superseding, amending, [or] modifying” any provision of the Clean Water Act in violation of SMCRA § 702.
Here, SAMS seeks primarily to enforce Clean Water Act-based water quality standards. The SMCRA program merely requires compliance with Clean Water Act-based effluent limitations and water quality standards by reference. SAMS’ logic would mean that the single cross-reference in SMCRA to Clean Water Act provisions allows citizens to bypass the NPDES “permit shield” simply by seeking to enforce those same standards under SMCRA—an argument that runs smack up against the prohibition in § 702 of SMCRA that it cannot be applied to modify or supersede the Clean Water Act.
SAMS’ second argument is that, even if its application of SMCRA represents a conflict with the Clean Water Act, § 702 of SMCRA cannot “override” the substantive provisions of SMCRA. It claims that the water protection provisions of SMCRA are essential to the program and, therefore, § 702 cannot be read to protect Red River from their application. That argument would simply read § 702 out of the law.
Red River filed its response brief on January 7, 2020, arguing that, since the CWA’s permit shield provision (§402(k)) precluded liability under the CWA, §702 of SMCRA bars SAMS’s SMCRA citizen suit as well. In responding to the argument that enforcement of water quality standards via SMCRA would not actually be inconsistent with the CWA’s permit shield, Red River relied on the Sixth Circuit’s opinion in Sierra Club v. ICG Hazard, LLC as well as the D.C. Circuit’s decision in In re Surface Mining Regulation. Together, those opinions stand for the proposition that, where there is regulatory overlap, SMCRA cannot alter the CWA in any fashion. Red River’s brief is well-written and can be found here.
SAMS will have the opportunity to file a reply brief later in January of 2020.
 The “permit shield” provides that even when discharges are not expressly authorized by a NPDES permit, they are considered “permitted” so long as: (1) the permittee has complied with the express terms of the permit and the information requirements in the application; and (2) the discharges at issue were within the reasonable contemplation of the permit authority.