Sierra Club v. ICG Hazard, LLC

ICG operated Thunder Ridge surface mine, under a five-year Coal General Permit issued by the Kentucky Division of Water (KDOW) pursuant to the National Pollutant Discharge Elimination System, which allowed ICG and others to discharge listed pollutants into the state’s water. Conditions included effluent limitations for specific pollutants, but not for selenium, a naturally occurring element that endangers aquatic life at certain concentrations. The permit acknowledged the possibility of selenium discharges. KDOW required a single selenium sampling during the five-year period. In 2009, ICG sought to expand its permit coverage and was required to submit water samples from a discharge point. Selenium exceeded the “acute” limit. Additional tests at six locations did not reveal selenium above the acute limit. Two sites exceeded the “chronic” limit. The Department of Natural Resources (KDNR) took a “preventive enforcement action,” requiring ICG to test again in 2011. The U.S. Office of Surface Mining deemed KDNR’s response appropriate and notified Sierra Club that it would take no further action. Sierra Club sued under the Water Pollution Control Act, 33 U.S.C. 1251, and the Surface Mining Control and Reclamation Act, 30 U.S.C. 1201. The district court awarded ICG summary judgment, finding that the permit shield precluded CWA liability. The Sixth Circuit affirmed, rejecting an argument that the permit shield did not apply because the discharge was neither expressly authorized nor reasonably contemplated by KDOW. View "Sierra Club v. ICG Hazard, LLC" on Justia Law