Fourth Circuit Finds Compliance Water Act Permit Shields Mine from Violation of Mining
In Southern Appalachian Mountain Stewards v. Red River Coal Co., ___ F.3d ___, No. 19-2194, 2021 WL 1182464 (4th Cir. 2021), the U.S. Court of Appeals for the 4th Circuit held that Red River Coal Company’s (Red River) compliance with its Clean Water Act permit shielded Red River from liability under the Surface Mining Control and Reclamation Act.
Several citizens’ groups brought suit against Red River for discharges of pollutants from the inactive North Fox Gap Surface Mine in Virginia. Those discharges were permitted by Red River’s Clean Water Act permit. The citizens’ groups alleged that the discharges violated the Surface Mining Act’s water-quality standards.
The Surface Mining Act contains a savings clause stating the act shall not “be construed as superseding, amending, modifying, or repealing” the Clean Water Act or any regulation implementing the Clean Water Act. 30 U.S.C. § 1292(a)(3). The Clean Water Act contains a “permit shield” provision which states that compliance with a Clean Water Act permit “shall be deemed compliance” with the Clean Water Act. 33 U.S.C. § 1342(k).
The court determined that the “Surface Mining Act’s lack of a permit shield supersedes, amends, or modifies the Clean Water Act’s permit shield.” Id. at * 1. Thus, the court held that the Surface Mining Act’s “savings clause prevents liability under the Surface Mining Act for conduct that is otherwise shielded from liability under the Clean Water Act.” Id. The court thus affirmed summary judgment granted for Red River on the citizens’ group’s Surface Mining Act claim.
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