Court cites ‘permit shield,’ allows selenium discharges

By Manuel Quiñones | 01/27/2015 01:17 PM EST

This story was updated at 5:36 p.m. EST.

A federal appeals court ruled this morning that the Clean Water Act shielded a coal mining company from liability for releases of the chemical element selenium.

A divided panel of the U.S. Court of Appeals for the 6th Circuit said former Arch Coal Inc. subsidiary ICG Hazard LLC’s Thunder Ridge strip mine in Leslie County, Ky., could dump selenium because its state-issued National Pollutant Discharge Elimination System permit did not expressly prohibit the pollution.


The Sierra Club, which sued the company, said the Clean Water Act’s so-called "permit shield" didn’t apply because Kentucky regulators did not give selenium releases enough consideration. Therefore, the group said, judges shouldn’t read too much into their not including limits in the company’s permit.

Environmental groups have been targeting the releases of selenium from coal mines. The element harms aquatic and human life in sufficient quantities.

The opinion this morning said that "ICG’s discharge of selenium was within KDOW’s reasonable contemplation because KDOW knew at the time it issued the general permit that the mines in the area could produce selenium."

The court acknowledged that the mine’s selenium releases "resulted in levels exceeding the threshold in the state’s water quality standard."

But because of the permit shield, the appeals court decided to uphold 2012 and 2013 rulings in the company’s favor by U.S. District Court Judge Greg Van Tatenhove in the Eastern District of Kentucky (Greenwire, May 22, 2013).

"Through our analysis of the permit shield’s application in the context of a general permit, we also conclude that the permit shield covers ICG’s discharges in this case," the judges wrote.

Judges Julia Gibbons and David McKeague, both appointed by Republican President George W. Bush, voted in favor of the ruling. Judge Gilbert Merritt, appointed by Democratic President Jimmy Carter, dissented.

"The Clean Water Act prohibits the discharge of selenium without a permit. The EPA and Kentucky codified clear legal limits for those permits," Merritt wrote in the dissent.

"Deference to a prior administrative choice to focus on the most dangerous chemicals and work with good faith applicants to advance the goals of the Clean Water Act does not require us to turn a blind eye to the knowing discharge of a notorious toxic pollutant," said Merritt.

Today’s ruling contradicts a decision by the 4th U.S. Circuit Court of Appeals last year denying A&G Coal Corp., owned by West Virginia billionaire James Justice, liability protection for selenium releases under the permit shield (Greenwire, Aug. 12, 2014).