A look at the Permit Shield and impacts of recent decision in Southern Appalachian Mountain Stewards (SAMS) v. A&G Coal Corp.

1. REGFORM WATER CONFERENCE
COLUMBIA, MISSOURI
SEPTEMBER 4-5, 2014
Cracks in the “Permit
Shield?”
Roger Walker JD LLM (Environmental Law)
RAWalker & Associates LLC

2. ROGER WALKER
Current: Environmental Attorney, RAWalker & Associates LLC
Executive Director, REGFORM (20 years off and on)
Adjunct Instr., Environmental Law, St. Louis University (6
years)
Prior: Armstrong Teasdale (13 years)
General Counsel, Missouri Chamber of Commerce (6
years)
Education: LL.M Environmental Law, Lewis & Clark – Portland, OR
J.D., University of Missouri at K.C.
Journalism/Education, University of Missouri at Columbia

3. KEY TAKEAWAYS
● Legal assault on the Permit Shield
● DOJ/EPA amicus generally support
environmental litigants
● Permit Shield does NOT Shield “stupid”
● Permit Shield for NPDES individual permits
attenuated by recent decisions
● Permit Shield for General Permits may NOT
survive judicial scrutiny
3

4. BACKGROUND - ONE
● Permit Shield: 33 USC Section 1342(k)
● Purpose of Permit Shield: du Pont v. Train,
430 U.S. 112 (1977)
● Protect permit holders from new requirements
that become effective while the permit is in place
● Protect permit holders from enforcement
challenges that the permit is not sufficiently strict
4

5. BACKGROUND - TWO
● Scope: Piney Run v. County Commissioners,
268 F.3d. 255 (4th Cir. 2001)(thermal
pollutant not listed in NPDES). Permit Shield
covers pollutants not specifically listed IF:
● Pollutant was “adequately disclosed” to the
permitting agency as part of the permit
application process, and;
● Discharges were “reasonably contemplated” by
permitting authority.
5

6. TAKEWAY ONE: LEGAL ASSAULT
● Southern Appalachian Mountain Stewards v. A&G Coal
Corp., (SAMS)(4th Cir. July 11, 2014) (rehearing denied)
(coal company in Virginia liable for discharge of selenium
even though no limits were placed on selenium in NPDES
individual permit)
● Alaska Community Action on Toxics v. Aurora, (9th Cir.)
(oral arguments heard on August 13, 2014) (District court
dismissed citizen suit challenging discharge of coal/coal
dust from conveyor belt that was not specifically identified
in NPDES General Permit). [NOTE: Court of Appeals
9th Cir. (September 3). Overturned and remanded to trial
court. Permit shield is NOT available since MSGP clearly
prohibits the discharge of solid coal. Punted issue of
what Agency “reasonably contemplated.”]
6

7. TAKEWAY ONE: LEGAL ASSAULT
● Sierra Club v. ICG Hazard, (6th Cir.)(oral arguments
October 8, 2013)(briefing finished; waiting for opinion)
(District Court upheld Permit Shield asserting that
Kentucky defendant surface coal mining company
discharge of selenium was not explicitly covered by
the NPDES general permit).
● Ohio Valley Envir. Coalition v. Marfork Coal, (S.D.
West Vir.)(District Court ruled that where permit has a
generic requirement to comply with WQSs, and
Permittee violates WQS, the Permit Shield will not
apply.
7

8. TAKEAWAY TWO: DOJ/EPA AMICUS BRIEFS
● Individual Permits
● DOJ/EPA argued in SAMS that the requirement
that the permitting authority “reasonably
contemplate” the release was not relevant since
40 CFR Section 122.2 mandates an analysis of
selenium and other toxic chemicals.
● DOJ/EPA assert that the Permittee must comply
with the express terms of the permit and with the
Permitting Authority application rules.
8

9. TAKEAWAY TWO: DOJ/EPA AMICUS
● General Permits
● DOJ/EPA asserts that Permit Shield should not apply
to General Permit its since the requirement for
“reasonable contemplation” only occurs during the
rulemaking process; as such, there is no substantive
review of any individual permit and no “reasonable
contemplation.”
● EPA also asserts that "Administrative documents
prepared to obtain coverage under a general permit .
. . simply are not functionally or legally equivalent to
an individual permit application for purposes of the
permit shield."
9

10. TAKEAWAY THREE: CAN’T SHIELD STUPID
● Southern Applachian (SAMS).
● Coal company failed to answer questions in the
permit application about presence or absence of
selenium
● Court noted that the coal company cannot have
it both ways: that the company did not have any
reason to list or consider selenium AND that the
Agency did “reasonably contemplate” the
presence of selenium.
10

11. TAKEAWAY FOUR: INDIVIDUAL PERMITS
● In SAMS, the 4th Circuit did not adopt the EPA or district court
position that all pollutants identified in Part 122.2 must be
analyzed. Instead the Court declined to address this “slippery
slope” noting: “[s]elenium is not just some obscure pollutant that
might happen to show up in a discharger’s waste stream.” Rather,
selenium was one of fifteen pollutants for which the NPDES
application specifically required disclosure].
● Other commentators take a dim view and argue that this case
opens the door for further weakening of the Permit Shield based
on a requirement to strictly adhere to the Permit as opposed to
the requirement in Piney Run to “adequately disclose” to the
Agency.
● Reminder of Ohio Valley v. Marfork and Permit Condition with
general compliance with WQSs.
11

12. TAKEAWAY FIVE: GENERAL PERMITS
● Permit Shield for General Permits may not survive judicial
scrutiny. Heard from 9th Circuit and waiting on 6th Circuit.
● Issues with General Permits:
● Does CWA distinguish between general and individual permit?
● Does the burden in General Permit shift to the Permit Writer?
● Is compliance with the General Permit sufficient to provide
protection?
● Does fact that Permitting Authority has discretion to require a
different permitting approach matter?
● Should a distinction be made between industrial General
Permits and municipal General Permits?
12

13. What Does it All Mean?
13