Thursday, April 22, 2021
In
Southern Appalachian Mountain Stewards et al. v. Red River Coal Co., Inc., 2021 WL 1182464 (4th Cir. Mar. 30, 2021), a unanimous Fourth Circuit panel recently affirmed a district court holding that an operator cannot be held liable under the Surface Mining Control and Reclamation Act (Surface Mining Act) for a discharge that is otherwise shielded from liability by the Clean Water Act (CWA). The court’s opinion expressly relied on the Sixth Circuit’s decision in
Sierra Club v. ICG Hazard, LLC, 781 F.3d 281 (6th Cir. 2015), which reached the same conclusion.
Statutory Background
The CWA prohibits discharges conveyed from a “point source” to navigable waters unless authorized by a National Pollutant Discharge Elimination System (NPDES) permit. And under 33 U.S.C. § 1342(k), a facility’s compliance with its NPDES permit is deemed compliance with the CWA’s standards. Courts have held that the “permit shield” covers all