Yesterday, I noted that the D.C. Circuit rejected challenges to EPA’s Enhanced Coordination Process and Final Guidance on Clean Water Act permitting for mining activities. It was not EPA’s only CWA victory. On the same day, the 4th Circuit Court of Appeals affirmed a decision narrowly construing the CWA’s permit shield defense.
Southern Appalachian Mountain Stewards sued A&G Coal over discharges of selenium from A&G’s Kelly Branch Surface Mine in Virginia. The case was not really difficult and was only ever going to have one outcome.
According to the record, at the time of A&G’s NPDES permit application, it did not know that it was discharging selenium. While that might cause one to have some sympathy for A&G, it was in fact fatal to A&G’s assertion of the defense. As the Court made clear, the defense may only be asserted if the permittee meets the following two-part test:
(1) the permit holder complies with the express terms of the permit and with the Clean Water Act’s disclosure requirements and (2) the permit holder does not make a discharge of pollutants that was not within the reasonable contemplation of the permitting authority at the time the permit was issued.”
Unfortunately, the record made clear that A&G had not complied with the applicable disclosure requirements. First, EPA’s application form required the permittee state whether selenium is “Believed Present” or “Believed Absent” from the discharge. A&G did not respond to this question. Second, the Virginia permit requirements went further, requiring applicants to submit at least one analysis for each pollutant listed in tables II or III of 40 CFR Part 122, appendix D. A&G did not provide the requested analysis.
A&G interpreted the regulations to require it to identify selenium only “if [it] knows or has reason to believe that [it] will be present in the discharges….” The Court rejected this interpretation, finding that it “turns the presumptions of the CWA on their head.”
A&G also raised the specter that an adverse ruling would “expose all permit applicants to the prospect of endless disclosure of countless known pollutants.” Here, the Court may have limited the opinion somewhat. The Court stated that selenium is “not just some obscure pollutant”, noting that selenium is among the 15 compounds listed as toxic pollutants in table III.
Might the permit shield still apply in a case where a non-listed pollutant was not disclosed to the permitting agency? Time will tell.