On Tuesday, the 6^th Circuit Court of Appeals held that the “permit shield” provisions of the Clean Water Act protected ICG hazard from Sierra Club claims that effluent from ICG Hazard’s Thunder Ridge mine caused exceedances of Kentucky water quality criteria for selenium. Thunder Ridge is covered by a general permit, not an individual site permit, and the Sierra Club argued that the shield should not apply.  However, this seems like a classic case of a distinction without a difference, and the Court agreed.

The statute provides that “compliance with a permit issued pursuant to this section shall be deemed compliance” with the relevant parts of the CWA itself.  In interpreting this provision, courts have concluded that, with respect to individual permits, the shield is available so long as:  (1) the permittee complies with reporting and disclosure requirements and (2) the discharge at issue was “within the permitting authority’s reasonable contemplation.”

The Court of Appeals here agreed that the same rule should apply to general permits.  Reviewing prior case law, the Court concluded that EPA has already determined that the scope of the permit shield should be the same for general permits as for individual permits.  Finding EPA’s interpretation reasonable, the Court deferred to it under Chevron.  Having crossed that bridge, the Court easily found that selenium discharges were within KDOW’s “reasonable contemplation” when it issued the general permit.  After all, KDOW included monitoring requirements for selenium in the general permit and also specified how permittees would have to respond if selenium were detected.

Given that ICG Hazard disclosed selenium information to the Kentucky Division of Water  and the KDOW knew about the potential for selenium in the mine effluent, the decision seems clearly correct.  The plaintiffs have a legitimate complaint, but it’s not with ICG Hazard.  The complaint should be with KDOW for issuing a general permit that allows the selenium water quality criterion to be exceeded and with EPA for delegating to Kentucky a program that issues permits allowing exceedances.  Given that the general permit is in effect, however, mine companies choosing to be covered by the general permit should be no less entitled to rely on the permit shield than mine owners covered by individual permits.