A three-judge panel at the U.S. Fourth Circuit Court of Appeals ruled against A&G Coal on July 11 in a case involving Clean Water Act permitting at a surface mine in Wise County, Va.
A&G, controlled by coal operator Jim Justice, owns and operates the Kelly Branch Surface Mine in Wise County. In 2010, A&G applied for and received from the Virginia Department of Mines, Minerals, and Energy (DMME) a National Pollutant Discharge Elimination System (NPDES) permit for its discharges from Kelly Branch.
The application provided information regarding the discharges from more than two-dozen existing and proposed outfalls (discharge points of waste streams into a body of water). A&G included on the outfall list the two artificial ponds relevant to this case, each of which discharges into a tributary of Callahan Creek. The mining company identified the discharge from both ponds as “surface runoff” and indicated that one would also discharge “ground water.” A source of the discharge for both outfalls was identified as a “surface mine,” while one of the ponds also identified “hollow fill underdrain” as an additional source.
Nowhere, however, did the permit application state whether or not A&G would be discharging selenium, a naturally occurring element that can be harmful in high doses to aquatic life and is categorized as a toxic pollutant under the Clean Water Act (CWA). The permit that the DMME issued to A&G in 2010 neither authorizes nor restricts the discharge of selenium from Kelly Branch.
Environmental groups, including Southern Appalachian Mountain Stewards (SAMS), sampled discharges from the two ponds, finding that they contained selenium. A&G’s own subsequent sampling detected this element, as well.
SAMS brought this suit against A&G for declaratory and injunctive relief and civil penalties. SAMS contended that A&G was violating the CWA by discharging selenium from Kelly Branch without authorization to do so.
“A&G requests that we remand this case for further factual development,” said the July 11 appeals court ruling. “We find no need to do so. There is no question that A&G was discharging selenium from Kelly Branch. There is no question that selenium is a pollutant under the CWA. And there is no question that A&G was required by its DMME permit application instructions to test for the presence of selenium and by federal and state regulations to, at minimum, report whether it believed selenium to be present or absent. It failed to fulfill these obligations.”
This means that all that is before the three-judge panel is the question of whether the defendant can assert a “permit shield” provision in law as an affirmative defense. As with any such defense, the defendant bears the burden of proving that it may validly advance it, the court noted.
“To allow the defense in these circumstances would tear a large hole in the CWA, whose purpose it is to protect the waters of Appalachia and the nation and their healthfulness, wildlife, and natural beauty,” the appeals court said in upholding the District Court ruling in this case. At another point in the ruling, the appeals court said: “We hold that the shield defense is unavailable to A&G.”
The District Court had granted summary judgment to SAMS regarding the allegations under the CWA. It found that A&G’s failure to disclose selenium in its permit application prevented it from receiving the protection of the CWA’s permit shield. According to the District Court, which the appeals court affirmed, A&G’s lack of knowledge that it was discharging selenium was irrelevant – instead, the key consideration was whether the permitting agency contemplated the discharge. Finding no issues of material fact regarding A&G’s lack of authorization to discharge selenium or whether the DMME contemplated the discharges, the court ruled in favor of SAMS.