Coal Mine’s Discharges Allowed Under Permit

     CINCINNATI (CN) – A Kentucky coal mining operation is shielded from liability for selenium discharges into nearby waters by its Clean Water Act permit, the 6th Circuit ruled.
     The decision upheld a lower court decision dismissing all claims brought by the Sierra Club for Clean Water Act and Surface Mining Control and Reclamation Act violations.
     ICG Hazard LLC, which operates the Thunder Ridge surface coal mine in Leslie County, Kentucky, was granted a general permit under the CWA that allowed the company to discharge certain amounts of pollutants into nearby bodies of water.
     Selenium was not specifically included in the permit, but testing in August 2009 showed levels exceeded the “acute limit” noted in state water standards.
     The Sierra Club notified ICG of its intent to file suit, but when it conducted further testing at six locations around the mine, no levels exceeded the acute limit.
     The environmentalists proceeded with their lawsuit in the London, Ky. Federal Court, but its claims were eventually dismissed after the court found “that, because the general permit did not set limits for selenium discharges, ICG could lawfully discharge provided it made proper disclosures.”
     On appeal, the Sierra Club argued that “pollutants may only be discharged if they are explicitly listed in the general permit,” but the 6th Circuit panel disagreed.
     U.S. Circuit Court Judge Julia Smith Gibbons wrote: “we hold that the EPA’s interpretation of the statutory scheme – allowing some pollutants to be discharged even though not specifically listed in the general permit – is ‘a sufficiently rational one to preclude a court from substituting its judgment for that of the EPA.'”
     The Sierra Club proceeded to argue that because ICG failed to disclose the selenium discharge at the outset of its permit application, it cannot be protected by the permit shield.
     But Judge Gibbons once again sided with the district court, and wrote: “ICG’s discharge of selenium was within the Kentucky Department of Water’s (KDOW) reasonable contemplation because KDOW knew at the time it issued the general permit that the mines in the area could produce selenium.”
     She continued: “KDOW considered the possibility and included a one-time monitoring requirement as a condition of coverage under the general permit. In addition, KDOW’s handling of post-issuance evidence of selenium discharges – requiring continued monitoring pursuant to a preventive enforcement action – demonstrates, by negative implication, that selenium discharges were within KDOW’s reasonable contemplation.”
     The district court tossed the Sierra Club’s claims for violations of the Surface Mining Act because “to hold ICG liable … would contravene 702(a)(3) of the Surface Mining Act, which provides … that ‘[n]othing in this Act shall be construed as ‘superseding, amending, modifying, or repealing’ the CWA.”
     Judge Gibbons agreed, and wrote “because Sierra Club’s claims under the Surface Mining Act are premised on ICG discharges of selenium that are violative of essentially the same water quality standards with which ICG is deemed to be in compliance for purposes of the CWA; and because the CWA regulatory framework controls over inconsistent regulation under the Surface Mining Act, it follows that Sierra Club’s claims under the Surface Mining Act are effectively barred by operation of the permit shield under the CWA.” The remaining members of the panel included U.S. Circuit Judges David McKeauge and Gilbert S. Merritt Jr., the latter of whom dissented from the majority’s ruling.
     In his dissent, Judge Merritt wrote: “the Clean Water Act prohibits the discharge of selenium without a permit. The EPA and Kentucky codified clear legal limits for those permits. Deference to a prior administrative choice to focus on the most dangerous chemicals and work with good faith applicants to advance the goals of the Clean Water Act does not require us to turn a blind eye to the knowing discharge of a notorious toxic pollutant. … I would allow the plaintiff to proceed under the citizen suit provision of the Clean Water Act.”

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