United States: 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 when 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

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