Last month, the Sixth Circuit held that the "permit shield" provided by a general National Pollutant Discharge Elimination System ("NPDES") permit shielded a surface coal mining operator from liability under the Clean Water.  In Sierra Club v. ICG Hazard, LLC, Sierra Club brought a citizen suit under the Clean Water Act against ICG Hazard, a surface coal mining operator.  Sierra Club argued that ICG Hazard discharged selenium into the surrounding water in violation of the Clean Water Act.  The Sixth Circuit upheld the district court's determination that the general NPDES permit shielded ICG Hazard from liability. 

ICG Hazard operated under a general NPDES permit issued by the Kentucky Division of Water, which allowed coal mining operations to discharge certain listed pollutants into the waters of the state.  A general permit covers a category of dischargers within a certain area, while an individual permit covers only one specific discharger.  The general NPDES permit in this instance did not specifically provide effluent limitations for selenium. 

The district court held that the general NPDES permit shielded ICG Hazard from liability as long as ICG Hazard disclosed the selenium discharge.  On appeal, Sierra Club argued that the permit shield did not apply to the selenium discharges where the general permit did not address effluent limitations for selenium. 

The Sixth Circuit stated that the "permit shield" is intended to protect the permit holder from certain discharges not specifically mentioned in the permit and held that the "permit shield" applies to general permits as well as individual permits.  Applying the Fourth Circuit's decision in Piney Run Preservation Association v. County Commissioners of Carroll County, the Sixth Circuit held that a general permit will shield the permit holder from liability for the discharge of pollutants not specifically mentioned in the permit where: (1) the permit holder complies with reporting requirements; and (2) the discharge was in the "reasonable contemplation" of the permitting authority. 

The court determined that ICG Hazard complied with reporting requirements, because ICG Hazard reported the selenium discharges when it sought a modification of its permit.  The court determined that the selenium discharge was within the "reasonable contemplation," because the state agency was aware at the time of issuance of the general permit that the mining operators could produce selenium.  As a result, the court held that the "permit shield" applied.