October 30, 2014

Further review in the Fourth Circuit's permit shield decision?

By Damien M. Schiff Senior Attorney

The Clean Water Act generally forbids the unpermitted discharge of pollutants into regulated waters.  But in addition to exempting from liability the permitted discharge of pollutants, the Act provides further protection for permittees for some unpermitted discharges.  Specifically, the Act’s “permit shield” provision, as interpreted by EPA and many lower courts, absolves from liability a permittee who discharges pollutants not specifically covered by the permit, so long as the permittee had no good reason to know that such pollutant discharges would occur, and the permitting agency (generally a state agency designate of EPA) was aware (or reasonably should have been aware) that such a discharge could occur.

In Southern Appalachian Mountain Stewards v. A & G Coal Co., the Fourth Circuit substantially narrowed the permit shield protection.  According to the decision, a permittee can avail itself of the permit shield if, but only if, the permittee’s application specifically states whether the pollutant in question is believed to be present or absent from the proposed discharge.  Because the coal company’s permit application was entirely silent as to the expected presence or absence of the pollutant in question (selenium), the company was not entitled to the permit shield defense.

Hence, under Southern Appalachian Mountain Stewards, a permit applicant now has the burdensome obligation of detailing the presence or absence of all conceivable pollutants that may appear in its discharges.  That requirement seems unnecessary, particularly in run-of-the-mill permit applications where the permitting agency will likely know the types of pollutants to be expected from the type of permit application at issue.

The coal company’s petition for rehearing was denied in early August, so we should know by the end of next month whether further review in the Supreme Court will be sought.

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