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Southern Appalachian Mountain Stewards v. A&P Coal Corp.

ELR Citation: 43 ELR 20178
Nos. 2:12CV00009, (W.D. Va., 07/22/2013) (Jones, J.)

A district court held that a mining company is liable under the CWA for the unpermitted discharge of selenium at one its surface mines. The company did not dispute that it has been discharging selenium from the mine, nor did it contest the fact that its permit contains no explicit authorization to discharge selenium. Rather, it argued that because the permitting agency chose not to include effluent limits for the discharge of selenium in its CWA permit, compliance with the plain language of its valid permits protects it from liability for selenium. But the "permit shield" does not apply here. A permittee must have actually disclosed a pollutant in its permit application in order to avail itself of the permit shield as to that pollutant. Here, it is undisputed that the company did not know or have reason to believe that it would discharge selenium from its mine site. Because the permit shield does not apply, the selenium discharges are unlawful and the environmental group that filed suit against the company is entitled to summary judgment on the issue of CWA liability.