Troutman Sanders’ Richmond office partner and environmental and natural resources attorney, Brooks Smith, has filed an amicus brief on behalf of the Virginia Coal and Energy Alliance Inc., Virginia Mining Association Inc. and Virginia Mining Issues Group. The brief supports A&G Coal Corporation’s request to the U.S. Court of Appeals for the Fourth Circuit to review whether it can use the permit shield defense to avoid liability for discharging naturally occuring pollutants that its Clean Water Act permit does not explicity prohibit from release into surrounding waters.

As reported in Bloomberg’s BNA Water Law and Policy Monitor on Jan. 2, “the outcome of this case could affect all NPDES permit holders that rely on permit shields to guard against lawsuits.” According to Smith, if the district court ruling is allowed to stand it would “overturn a key provision of the EPA policy on interpreting the permit shield defense that dates back to 1995.”

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