Industry Seeks To Minimize 4th Circuit's CWA Permit 'Shield' Ruling

摘要

Industry is pressing three appeals courts to limit the impact of a recent decision narrowing the "shield" that protects holders of Clean Water Act (CWA) permits from liability for their discharges, urging two courts to disregard the ruling as they consider still-pending suits over the shield and seeking en banc reversal of the decision itself. Coal companies are seeking to minimize or eliminate the precedent set in a July 11 ruling by the U.S. Court of Appeals for the 4th Circuit, in Southern Appalachian Mountain Stewards (SAMS), et al. v. A&G Coal Corp, where it held that a coal mine was liable for discharges of selenium from its Virginia mine because it failed to properly test for and document the presence of the pollutant, or lack thereof, in its permit application. The 9th Circuit is set to consider a similar question when it hears oral arguments Aug. 13 in Alaska Community Action on Toxics (ACAT), et al. v. Aurora Energy Services, LLC, et al. There, environmentalists have cited the SAMS ruling to support their push to narrow the shield as it applies to CWA general permits, arguing that it shows "The 'need for a party to properly document the contents of its discharges in order to avail itself of the permit shield'" - which they claim Aurora has failed to do.