On Tuesday, the 6th Circuit Court of Appeals held
that the "permit shield" provisions of the Clean Water
Act protected ICG hazard from Sierra Club claims that effluent from
ICG Hazard's Thunder Ridge mine caused exceedances of
Kentucky water quality criteria for selenium. Thunder Ridge
is covered by a general permit, not an individual site permit, and
the Sierra Club argued that the shield should not apply.
However, this seems like a classic case of a distinction without a
difference, and the Court agreed.
The statute provides that "compliance with a permit issued
pursuant to this section shall be deemed compliance" with the
relevant parts of the CWA itself. In interpreting this
provision, courts have concluded that, with respect to individual
permits, the shield is available so long as: (1) the
permittee complies with reporting and disclosure requirements and
(2) the discharge at issue was "within the permitting
authority's reasonable contemplation."
