Southern Appalachian Mountain Stewards v. A & G Coal Corporation
758 F.3d 560
4th Cir.2014Background
- A&G Coal operates the Kelly Branch Surface Mine in Wise County, Virginia.
- In 2010, A&G obtained an NPDES permit from the Virginia DMME for discharges from Kelly Branch.
- A&G's permit application identified the discharges as surface runoff and groundwater from two ponds, with one pond also involving hollow fill underdrain, but did not state whether selenium would be discharged.
- SAMs (Southern Appalachian Mountain Stewards) sampled outfalls and found selenium; A&G later found selenium in its own samples.
- The district court denied A&G’s summary-judgment motion, granted SAMS summary judgment on the shield issue, and this appeal followed; appellate standard is de novo review of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the permit shield applies when selenium was not disclosed. | SAMS argues failure to disclose removes shield. | A&G argues disclosure not required if not known present. | No; shield unavailable due to inadequate disclosure. |
| Whether A&G complied with Piney Run prong I by adequately disclosing discharges. | Disclosures were insufficient; selenium not disclosed. | Disclosures met requirements by listing wastestreams and processes. | Prong I not met; disclosures were not adequate. |
| Whether EPA's 1995 Policy Statement or related guidance supports A&G’s disclosure. | Guidance does not excuse failure to disclose. | Policy supports broad shield if information described in permit is disclosed. | Policy guidance does not overcome failure to disclose; shield not available. |
Key Cases Cited
- Piney Run Pres. Ass'n v. Cnty. Comm'rs, 268 F.3d 255 (4th Cir. 2001) (permit shield requires disclosure and reasonable contemplation by the authority)
- Ketchikan Pulp Co., 1998 WL 284964 (EAB 1998) (EAB stressed disclosure is critical to shield applicability)
- Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., 12 F.3d 353 (2d Cir. 1993) (discharges may be within shield if adequately disclosed during permit process)
- U.S. v. Cooper, 482 F.3d 658 (4th Cir. 2007) (context for federal/state NPDES permitting and authority)
- Ray Commc'ns, Inc. v. Clear Channel Commc'ns, Inc., 673 F.3d 294 (4th Cir. 2012) (summary judgment burden for shield applicability)