Sierra Club v. ICG Hazard, LLC, 781 F.3d 281

ICG Hazard operated the Thunder Ridge surface coal mine under Kentucky’s NPDES Coal General Permit; the permit included a one-time selenium monitoring requirement but did not list selenium effluent limits.
During permit modification sampling, selenium exceeded Kentucky’s acute water-quality standard (20 µg/L); later tests exceeded the chronic standard (5 µg/L) at two sites.
Sierra Club sued under the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (Surface Mining Act), seeking injunctive relief, declaratory relief, and penalties for selenium discharges.
The district court granted summary judgment for ICG, holding the CWA’s permit-shield protected ICG because the general permit did not set selenium limits and ICG complied with disclosure/monitoring requirements.
On appeal, the Sixth Circuit (majority) affirmed: it held the permit shield applies to general permits so long as permittees comply with reporting and the discharge was within the permitting authority’s reasonable contemplation; KDOW’s general permit and one-time monitoring showed selenium was reasonably contemplated.
The court also held Surface Mining Act claims premised on the same discharges were precluded because enforcement that conflicts with the CWA’s permit-shield would violate §702(a)(3) of the Surface Mining Act.

Issue	Sierra Club's Argument	ICG's Argument	Held
Scope of CWA "permit shield" for discharges under a general NPDES permit	Permit shield should not cover pollutants unless explicitly authorized or reasonably contemplated by the permitting agency; general permit’s silence on selenium defeats shield	Permit shield can cover pollutants not listed if permittee complies with disclosure/monitoring and discharge was within agency’s reasonable contemplation	Permit shield applies to general permits; two-prong Piney Run test (disclosure + reasonable contemplation) governs and was satisfied here because KDOW knew selenium risk and required monitoring
Whether Surface Mining Act enforcement may proceed when CWA permit shield deems same discharges authorized	Surface Mining Act may fill regulatory gap where CWA enforcement is effectively absent; state enforcement should be allowed to protect water quality	Allowing Surface Mining Act claims would conflict with CWA permit-shield and §702(a)(3) prevents Surface Mining Act regulation from superseding CWA framework	Claims under Surface Mining Act premised on the same selenium discharges are barred where permitting under the CWA (including operation of the permit shield) controls and would be conflicted by inconsistent regulation

Piney Run Preservation Ass'n v. Cnty. Comm'rs, 268 F.3d 255 (4th Cir. 2001) (adopts two-prong test for permit shield: reporting compliance and permitting authority's reasonable contemplation)
Atlantic States Legal Found. v. Eastman Kodak Co., 12 F.3d 353 (2d Cir. 1993) (interprets permit scope and disclosure role in permitting)
E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977) (describes purpose of permit shield to protect permit reliance)
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for deference to agency interpretations)
In re Surface Mining Regulation Litigation, 627 F.2d 1346 (D.C. Cir. 1980) (holds CWA regulatory framework controls where Surface Mining Act would conflict)
Arkansas v. Oklahoma, 503 U.S. 91 (1992) (describes NPDES permit function and effluent limits)