Fourth Circuit Holds that Mine Not Liable Under Surface Mining Act When CWA Permit Shield Applies
In Southern Appalachian Mountain Stewards et al. v. Red River Coal Co., Inc., 2021 WL 1182464 (4th Cir. Mar. 30, 2021), a unanimous Fourth Circuit panel recently affirmed a district court holding that an operator cannot be held liable under the Surface Mining Control and Reclamation Act (Surface Mining Act) for a discharge that is otherwise shielded from liability by the Clean Water Act (CWA). The court’s opinion expressly relied on the Sixth Circuit’s decision in Sierra Club v. ICG Hazard, LLC, 781 F.3d 281 (6th Cir. 2015), which reached the same conclusion.
The CWA prohibits discharges conveyed from a “point source” to navigable waters unless authorized by a National Pollutant Discharge Elimination System (NPDES) permit. And under 33 U.S.C. § 1342(k), a facility’s compliance with its NPDES permit is deemed compliance with the CWA’s standards. Courts have held that the “permit shield” covers all discharges that were “adequately disclosed to the permitting authority.”
The Surface Mining Act prohibits surface coal mining without a state-issued permit but does not provide a permit shield. However, it does contain a “saving clause”—under 30 U.S.C. § 1292(a), the Surface Mining Act cannot be “construed as superseding, amending, modifying, or repealing” any provision of certain federal environmental statutes, including the CWA or state laws enacted pursuant to the CWA.
Factual and Procedural Background
The plaintiffs brought claims under the CWA and the Surface Mining Act based on alleged discharges at a now-inactive mine. Operations at the mine were subject to water quality standards in a combined NPDES and Surfacing Mining Act permit issued by the Commonwealth of Virginia.
On summary judgment, the district court held that although the discharges in question were not included in the mine’s NPDES permit, they were covered by the CWA’s permit shield because the Virginia regulators were aware of them when they issued that permit. 420 F. Supp. 3d 481, 497 (W.D. Va. 2019). Moreover, the district court held that the Surface Mining Act saving clause precludes liability for discharges under the Surface Mining Act where the same discharges fall within the CWA permit shield. Id. at 498.
The plaintiffs appealed, arguing: (1) that the saving clause could not apply because the Surface Mining Act standards were consistent with the CWA, and (2) that saving clauses cannot be used to override substantive statutory provisions.
The Court’s Opinion
The Fourth Circuit rejected the plaintiffs’ argument that the saving clause applies only where the Surface Mining Act conflicts or is inconsistent with the CWA. “The ordinary meaning of the terms in the saving clause makes clear that the clause does more than prevent inconsistent rules and regulations.” 2021 WL 1182464 at *4 (emphasis in original). And regardless, the court explained, there is an inconsistency and conflict between the statutes at issue—the CWA exempts the alleged discharges from liability through the permit shield, while the Surface Mining Act does not. Id. at *5. Therefore, finding liability under the Surface Mining Act substantive standards would effectively supersede, modify, or amend the enforcement provisions of the CWA permitting regime. The saving clause does not allow that. Id.
The court also suggested that its interpretation of the saving clause would not fundamentally alter the Surface Mining Act because it regulates all aspects of surface mining, not just discharges to water.
As the court noted, “the existence of the saving clause is a clearly expressed congressional intention” that the mine’s permit “should protect it from liability when it complies with the provisions of that permit.” Id. at *5 (internal citation and quotation marks omitted). As a result, this ruling should help provide certainty for CWA permit holders who adequately disclose discharges to the permitting authority and comply with the provisions of their permits, particularly for sources in the Fourth Circuit.