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Sierra Club v. ICG Hazard, LLC

ELR Citation: 45 ELR 20022
Nos. 13-5086, (6th Cir., 01/27/2015)

The Sixth Circuit held that the CWA's permit shield protects a surface coal mining company from liability for selenium discharges. The company, which operates under a state-issued general NPDES permit, discharged selenium into surrounding water. Although the permit did not specify effluent limitations for selenium, the discharge resulted in levels exceeding the threshold in the state’s water quality standard. An environmental group filed suit against the company, but the lower court ruled in the company's favor because the CWA's permit shield covers the company's discharges in this case. The appellate court agreed. Although the CWA's permit-shield language is ambiguous, EPA’s interpretation of the statutory scheme—allowing some pollutants to be discharged even though not specifically listed in the general permit—is reasonable and entitled to deference. In addition, this interpretation extends to general permits, not just to individual permits. Here, because the company disclosed the discharge, and because the discharge of selenium was within the state permitting authority’s reasonable contemplation at the time the general permit was issued, the shield applies.