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

ELR Citation: 44 ELR 20154
Nos. 13-2050, (4th Cir., 07/11/2014)

The Fourth Circuit held that a coal company may not assert the CWA's "permit shield" defense for discharges of selenium when it failed to disclose the presence of this pollutant during the permit application process. The company argued that because it disclosed the pollutants that it knew or had reason to believe were present at its surface mine during the federal and state permit application process, selenium not among them, it complied with its legal obligations and was protected under the CWA's permit shield. But the court disagreed. Although the permit shield allows permit holders to conduct their operations without concern that an unexpected discharge might lead to substantial liability, it requires full compliance with federal and state reporting requirements, as well as with the conditions of the permit. Here, there is no question that the company was required by its state permit application instructions to test for the presence of selenium. In addition, federal and state regulations required the company to, at minimum, report whether it believed selenium to be present or absent. Because it failed to fulfill these obligations, the company may not assert the defense.