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In Kentucky Case, Appeals Court Upholds Idea of 'Permit Shield' for Water Pollution

When it comes to pollution, if a permit doesn’t mention it, it doesn’t matter how much of a pollutant a mine discharges. That’s the takeaway from a U.S. Court of Appeals decision released earlier this week.

The case—Sierra Club v. ICG Hazard—originated with a coal mine in Leslie County, Kentucky. The coal mine applied for and used a general water permit from the Kentucky Energy and Environment Cabinet; these general permits are blanket documents that apply to many different mines, and aren’t tailored to a specific facility.

During the course of issuing the general permit, the Kentucky Energy and Environment Cabinet chose not to include limits for selenium. Selenium is naturally-occurring in rock, but it’s been shown to be dangerous for aquatic life in large quantities. Sierra Club representatives tested the water near the coal mine, and found high levels of selenium. They sued, alleging that ICG had violated the federal Clean Water Act.

But the Court of Appeals upheld a lower court’s decision that ICG is effectively shielded by its permit. If there’s a pollutant that could be reasonably determined to be discharged, and it’s not included in the permit, the company can’t be held liable.

From the opinion:

ICG’s discharge of selenium was within KDOW [Kentucky Division of Water] reasonable contemplation because KDOW knew at the time it issued the general permit that the mines in the area could produce selenium. Indeed, a provision of the permit recognized the possibility that any of the mines under its purview may discharge selenium. KDOW considered the possibility and included a one-time monitoring requirement as a condition of coverage under the general permit. In addition, KDOW’s handling of post-issuance evidence of selenium discharges—requiring continued monitoring pursuant to a preventive enforcement action—demonstrates, by negative implication, that selenium discharges were within KDOW’s reasonable contemplation, as it declined to otherwise impose additional selenium limits or conditions on ICG’s Thunder Ridge operations. The permit shield therefore covers ICG’s discharge of selenium. We affirm the district court’s decision on this claim.

That was the opinion issued by Judges Julia Smith Gibbons and David McKeague, but Senior Judge Gilbert Merritt dissented. He said:

The majority allows the silence of local Kentucky environmental regulators to turn the Clean Water Act on its head. They do this, despite the undisputed fact that illegal toxic discharges of dirty selenium water occurred, because they believe we must assume that Kentucky’s “general permit” tacitly authorizes toxic discharges of selenium. In so doing, they extend to the one-size-fits-all “general” permit a presumption previously applicable only to custom-tailored, “individual permits.” Because I find neither the authority nor the intention to allow these flagrant and unlimited violations of the Clean Water Act in the general permit at issue here, I dissent.

 

Erica Peterson is WFPL's Director of News and Programming.