A recent Sixth Circuit decision on permit shield protection reinforces the importance of full disclosure to the permitting agency. The Sixth Circuit found a coal company was shielded from Clean Water Act liability for discharges exceeding state water quality standards by a state NPDES general permit. This is the latest decision in a series of cases where courts have wrestled with the scope of protection afforded by the CWA’s permit shield provision. See 33 U.S.C. § 1342(k). The decision stands in stark contrast to a recent Fourth Circuit decision (Appalachian Mt. Stewards v. A&G Coal Corp., 758 F.3d 560 (4th Cir. 2014)), with the primary difference being what was disclosed to, and within the reasonable contemplation of, the state when it issued the permit. The recent Sixth Circuit decision can be found here: Sierra Club v. ICG Hazard, LLC, Case No. 13-5086, 2015 U.S. App. LEXIS 1283 (6th Cir. Jan. 27, 2015).
For more information on the current state of evolving permit shield protection, please contact Miranda Yost. Also, look out for an upcoming ABA article on this topic: The Clean Water Act Permit Shield—Recent Battles by Douglas A. Henderson, E. Fitzgerald Veira and Brooks M. Smith.