The Permit Shield Defense: No Shield Absent Full Disclosure


The Clean Water Act permit shield provision provides that compliance with an NPDES permit constitutes compliance with the CWA.  What happens the permit does not mention a particular pollutant?  In Southern Appalachian Mountain Stewards v. A&G Coal, decided late last week, the Court made clear that the permittee must fully disclose information about its discharge of the pollutant to the permitting agency in order for the shield to be available.

A&G Coal operates a surface coal mine.  Selenium was not mentioned in A&G Coal’s permit and A&G Coal conceded that it was discharging selenium.  A&G Coal had not identified selenium discharges in its permit application (and, indeed, the Court found that it was not aware of its selenium discharges when the application was made).  In defending the citizen suit, it argued that the Virginia Department of Mining, Minerals, and Energy was aware of selenium discharges from the mine because A&G Coal had disclosed that its operations involved surface mining of bituminous coal and because DMME was aware of elevated selenium levels in the area.  Not enough, said the Court.

The crucial factor for application of the permit shield is whether the permitting agency contemplated the discharge and chose not to include an effluent limit for the pollutant in the permit.


In this case, it is undisputed that A&G did not know or have reason to believe that it would discharge selenium from its mine site. Even if A&G dutifully complied with the permit application requirements, the evidence simply does not support a conclusion that DMME contemplated what A&G did not.

The decision did not really break any new ground, but it does provide a helpful reminder that the permittee cannot simply assume that the permitting agency is aware of discharges not mentioned in the permit; the permittee must affirmatively disclose them or risk not being able to rely on the shield.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Environmental Law | Attorney Advertising

Written by:


Foley Hoag LLP - Environmental Law on:

Popular Topics
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.