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Energy and Environment Monitor

Sixth Circuit Upholds Application of Clean Water Act’s “Permit Shield” Provision

February 11, 2015

By: Douglas J. Crouse and Kevin M. McGuire

On January 27, 2015, the U.S. Court of Appeals for the Sixth Circuit, in a 2-1 split decision, affirmed an opinion of the U.S. District Court for the Eastern District of Kentucky that the Clean Water Act’s (CWA) “permit shield” defense applies to discharges of selenium at ICG Hazard’s Thunder Ridge Mine.  See opinion here.  The Sierra Club had argued that ICG’s discharges of selenium were “unpermitted” - and thus illegal - because the “general” KPDES discharge permit at issue did not include a condition regarding the amount of selenium ICG was allowed to discharge.

ICG argued that it was protected by the Clean Water Act’s “permit shield” provision, which states that “compliance with a [discharge permit] shall be deemed compliance” with the Act.  33 U.S.C. § 1342(k).  In other words, because the Kentucky Division of Water (KDOW) contemplated the potential for selenium discharges when it renewed the general permit and determined that specific limits for selenium were not necessary, the general permit “shielded” ICG under the CWA from citizen actions alleging selenium violations.

The Sixth Circuit found the CWA’s permit shield language ambiguous and therefore looked to EPA guidance interpreting the permit shield.  EPA’s interpretation provides that the shield exempts a permittee from CWA liability for pollutant discharges that are not mentioned in the permit if two factors are met:  (1) the permittee must comply with the CWA’s reporting and disclosure requirements; and (2) the discharges at issue must be within the “reasonable contemplation” of the permitting authority. 

The Court’s majority found EPA’s interpretation to be reasonable and therefore entitled to deference.  The Court also ruled that EPA’s interpretation applies to general permits (such as ICG’s) in addition to the individual discharge permits to which EPA’s guidance had originally been applied.  In applying EPA’s interpretation to ICG’s general permit, the majority again found that both factors of the permit shield test had been met.

The Sierra Club also argued that even if the permit shield applied to ICG’s Clean Water Act permit, it did not shield ICG from liability for violations of its surface mining permit.  However, the Sixth Circuit agreed with the district court’s ruling that so long as ICG’s discharges are in compliance with the terms of its CWA discharge permit, the Sierra Club cannot alternatively bring suit under the Surface Mining Control and Reclamation Act (SMCRA).

This article was authored by Kevin M. McGuire and Douglas J. Crouse, Jackson Kelly PLLC. 

 

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