Sierra Club v. ICG Hazard, LLC
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Court: U.S. Court of Appeals for the Sixth Circuit Docket: 13-5086
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Opinion Date:
January 27, 2015
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Areas of Law: Environmental Law
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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.