Southern Appalachian Mountain v. A & G Coal Corporation

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:12-cv-00009-JPJ-PMS. [999393749]. [13-2050]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2050

SOUTHERN
APPALACHIAN
APPALACHIAN VOICES,

MOUNTAIN

STEWARDS;

SIERRA

CLUB;

Plaintiffs - Appellees,
v.
A & G COAL CORPORATION,
Defendant - Appellant.
-----------------------------VIRGINIA COAL AND ENERGY ALLIANCE, INCORPORATED; VIRGINIA
MINING ASSOCIATION; VIRGINIA MINING ISSUES GROUP; AMERICAN
FOREST AND PAPER ASSOCIATION; AMERICAN PETROLEUM INSTITUTE;
NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES; NATIONAL
ASSOCIATION OF HOME BUILDERS; NATIONAL MINING ASSOCIATION;
UTILITY WATER ACT GROUP,
Amici Supporting Appellant,
UNITED STATES OF AMERICA,
Amicus Supporting Appellees.

Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.
James P. Jones,
District Judge. (2:12-cv-00009-JPJ-PMS)

Argued:

May 14, 2014

Decided:

Before WILKINSON, AGEE, and DIAZ, Circuit Judges.

July 11, 2014

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Affirmed by published opinion.
Judge Wilkinson
opinion, in which Judge Agee and Judge Diaz joined.

wrote

the

ARGUED: Allen Wayne Dudley, Jr., JAMES C. JUSTICE COMPANIES,
INC. & AFFILIATES, Roanoke Virginia, for Appellant. Derek Owen
Teaney,
APPALACHIAN
MOUNTAIN
ADVOCATES,
Lewisburg,
West
Virginia, for Appellees.
ON BRIEF: Isak J. Howell, LAW OFFICE
OF ISAK HOWELL, Lewisburg, West Virginia; Joseph M. Lovett,
APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for
Appellees.
George A. Somerville, Brooks M. Smith, TROUTMAN
SANDERS LLP, Richmond, Virginia, for Amici Virginia Coal and
Energy Alliance, Incorporated, Virginia Mining Association, and
Virginia Mining Issues Group.
James N. Christman, Richmond,
Virginia, Karen C. Bennett, Kristy Bulleit, HUNTON & WILLIAMS
LLP, Washington, D.C.; Jan A. Poling, Senior Vice President &
General
Counsel,
AMERICAN
FOREST
&
PAPER
ASSOCIATION,
Washington, D.C.; Nathan Gardner-Andrews, NATIONAL ASSOCIATION
OF CLEAN WATER AGENCIES, Washington, D.C.; Katie Sweeney, Amanda
Aspatore, NATIONAL MINING ASSOCIATION, Washington, D.C.; Peter
Tolsdorf, AMERICAN PETROLEUM INSTITUTE, Washington, D.C.; Tom
Ward, NATIONAL ASSOCIATION OF HOME BUILDERS, Washington, D.C.,
for Amici American Forest and Paper Association, American
Petroleum
Institute,
National
Association
of
Clean
Water
Agencies, National Association of Home Builders, National Mining
Association, and Utility Water Act Group.

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WILKINSON, Circuit Judge:
The

question

in

this

case

is

whether

the

defendant-

appellant, A & G Coal Corporation (“A&G”), can assert a “permit
shield” defense for discharges of selenium when it failed to
disclose

the

application

presence
process.

of
We

this

pollutant

hold

that

the

during

the

shield

permit

defense

is

unavailable to A&G.

I.
A&G owns and operates the Kelly Branch Surface Mine (“Kelly
Branch”) in Wise County, Virginia. In 2010, A&G applied for and
received from the Virginia Department of Mines, Minerals, and
Energy

(“DMME”)

a

National

Pollutant

Discharge

Elimination

System (“NPDES”) permit for its discharges from Kelly Branch. In
its

permit

Kelly

application,

Branch

provided

was

A&G

indicated

“bituminous

information

that

its

coal

mining.”

the

discharges

regarding

operation

The
from

at

application
more

than

two-dozen existing and proposed outfalls (discharge points of
wastestreams into a body of water).
A&G included on the outfall list the two artificial ponds
relevant to this case, each of which discharges into a tributary
of Callahan Creek. The mining company identified the discharge
from both ponds as “surface runoff” and indicated that one would
also discharge “ground water.” A source of the discharge for
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both outfalls was identified as a “surface mine,” while one of
the

ponds

also

identified

“hollow

fill

underdrain”

as

an

additional source. Nowhere, however, did the permit application
state

whether

or

not

A&G

would

be

discharging

selenium,

a

naturally occurring element that can be harmful in high doses to
aquatic life and is categorized as a toxic pollutant under the
Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq. The permit
that

the

DMME

issued

to

A&G

in

2010

neither

authorizes

nor

restricts the discharge of selenium from Kelly Branch.
Plaintiff-appellees
referred

to

as

(environmental

Southern

Appalachian

groups
Mountain

collectively
Stewards,

or

“SAMS”) sampled discharges from the two ponds, finding that they
contained selenium. A&G’s own subsequent sampling detected this
element as well. 1 After complying with the applicable statutory
notice

requirements,

declaratory

and

SAMS

injunctive

brought
relief

this

suit

and

against

civil

A&G

penalties.

for
SAMS

contended that A&G was violating the CWA by discharging selenium
from Kelly Branch without authorization to do so.

1

The parties disagree about whether the selenium levels
found in the samples violated Virginia water quality standards.
Compare Appellant’s Br. at 6 n.2, with Appellee’s Br. at 6 n.2.
We agree with the district court that we need not reach this
question, because the issue before the court is whether A&G can
utilize the permit shield, and not whether the selenium
discharges were in excess of Virginia’s regulations. See S.
Appalachian Mountain Stewards v. A & G Coal Corp., No.
2:12CV00009, 2013 WL 3814340 at *2 n.3 (W.D. Va. July 22, 2013).
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A&G responded that because it disclosed the pollutants that
it knew or had reason to believe were present at Kelly Branch,
selenium not among them, it complied with its legal obligations.
In addition, it argued that the DMME reasonably contemplated
that A&G could discharge the pollutant. Consequently, it was
protected under the CWA’s permit shield and did not violate the
CWA. Both parties moved for summary judgment.
The district court denied A&G’s motion and granted summary
judgment to SAMS regarding the allegations under the CWA. It
found

that

A&G’s

failure

to

disclose

selenium

in

its

permit

application prevented it from receiving the protection of the
CWA’s permit shield. According to the district court, A&G’s lack
of knowledge that it was discharging selenium was irrelevant -instead, the key consideration was whether the permitting agency
contemplated the discharge. Finding no issues of material fact
regarding A&G’s lack of authorization to discharge selenium or
whether the DMME contemplated the discharges, the court ruled in
favor

of

SAMS.

This

appeal

followed.

We

review

the

district

court’s grant of summary judgment de novo, requiring that the
record contain no genuine issues of material fact and drawing
all reasonable inferences on behalf of the non-moving party.

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George & Co. LLC v. Imagination Entm't Ltd., 575 F.3d 383, 392
(4th Cir. 2009). 2

II.
A.
A brief description of the actual operation of the NPDES
permitting

process

is

necessary

to

an

understanding

of

this

case. The CWA was passed in order to “restore and maintain the
chemical,

physical,

and

biological

integrity

of

the

Nation’s

waters.” 33 U.S.C. § 1251. It shifted the focus of federal water
regulation from the condition of navigable waters to effluent
limitations, prohibiting the discharge of pollutants into those
waters, except where otherwise authorized by the Act. See id.
§ 1311(a). Relevantly, the CWA allows the federal government -or by delegation, the states -- to issue NPDES permits for the
discharge of certain pollutants. See id. § 1342(a), (b) (giving
the Environmental Protection Agency (“EPA”) authority to issue
permits

and

allowing

it

to

delegate

administration

of

the

permitting program to the states); United States v. Cooper, 482
F.3d 658, 661 (4th Cir. 2007) (noting that Virginia administers

2

The district court order granted an injunction requiring
the appellant to perform various remedial tasks related to its
selenium discharges. Our jurisdiction to hear this appeal is
predicated upon 33 U.S.C. § 1292(a)(1), which allows an appeal
of such an order.
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the state NPDES program). The DMME is the agency that issues and
enforces NPDES permits for surface coal mines in Virginia. See
Va. Code Ann. § 45.1-254.
Under the permitting scheme, a person wishing to discharge
one or more pollutants applies for an individual permit from the
proper state or federal agency. See 40 C.F.R. § 122.21. Using
the disclosures from the application, as well as other available
information,
available

the

to

the

agency

then

public

for

develops
notice

a

and

draft

permit

comment.

made

After

the

administrative process has run its course, the agency can issue
the

permit.

See

33

U.S.C.

§ 1342(a)(1),

(b)(3);

40

C.F.R.

§§ 122.41, 122.44, 124.10.
Federal

regulations

require

that

the

permit

application

include significant detail regarding the nature and composition
of the expected discharges. 40 C.F.R. § 122.21(g). There are two
sets

of

within

pertinent
a

primary

requirements
industry

for

category,

applicants

that

operate

including

coal

mining,

depending on how their discharge is classified. Because there is
a

disagreement

as

to

the

nature

of

A&G’s

discharges,

it

is

necessary to describe both regulations.
For

those

outfalls

that

discharge

“process

wastewater,”

defined as “any water which, during manufacturing or processing,
comes into direct contact with or results from the production or
use of any raw material, intermediate product, finished product,
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or

waste

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product,”

each

applicant

must

report

quantitative data on a large number of pollutants -- a list that
includes selenium. Id. § 122.2 (defining “process wastewater”),
122.21(g)(7)(v)(B); part 122, Apps. A (listing coal mining as a
primary industry category), D (listing selenium in table III as
one

of

the

wastewater

pollutants
pursuant

to

that

must

be

regulation).

tested
Thus,

for

those

in

process

discharging

process wastewater must, as part of their permit applications,
give a quantitative measure of selenium.
An applicant whose discharges are not classified as process
wastewater must nonetheless “indicate whether it knows or has
reason to believe that any of the pollutants in table II or
table III of appendix D to this part [including selenium] . . .
for which quantitative data are not otherwise required . . .
[is] discharged from each outfall.” Id. § 122.21(g)(7)(vi)(B).
According to the instructions contained in the EPA’s Application
Form 2C, the form that must be filled out by any person applying
to the agency to discharge wastewater of any sort, a party must
mark

whether

each

listed

element,

including

selenium,

is

“Believed Present” or “Believed Absent.” EPA, Application Form
2C – Wastewater Discharge Information (1990) (“Application Form
2C”).

Thus,

according

to

the

EPA,

“disclosure”

means

affirmatively informing the relevant agency of the presence or
absence of specified pollutants.
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Virginia has incorporated these same requirements into its
own

regulations,

Admin.

Code

§

using

nearly

identical

25-31-100(H)(7)(e)(2)

language.

(requiring

See

9

applicants

Va.
in

primary industry categories that discharge process wastewater to
report quantitative data for those pollutants listed in table
III of 40 C.F.R. part 122, appendix D, which includes selenium),
25-31-100(H)(7)(g)

(requiring

each

applicant

not

discharging

process wastewater to indicate whether it knows or has reason to
believe

that

any

pollutants

listed

in

tables

II

or

III

of

appendix D are being discharged). The state did not, however,
stop there. The DMME’s NPDES application instructions require
that

in

addition

to

disclosing

data

regarding

a

series

of

parameters listed in the application’s table, “information is
required

regarding

the

following

pollutants;

Selenium

.

The

applicant

must

analys[i]s

.
for

.

.

each

pollutant.

Please

report
attach

.
at

.

.

Total

least

certificate

one
of

analyses or reference appropriate information on file at the
Division.” J.A. at 356. The CWA sets the minimum requirements
that

states

must

demand

in

their

NPDES

applications,

see

40

C.F.R. § 122.21(a)(2)(iv), but states can, as Virginia has done
here, exceed that minimum and require more stringent reporting
requirements.

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B.
The CWA contains a “permit shield” provision for those who
have

successfully

applied

for

NPDES

permits

through

the

framework described above. It states that “[c]ompliance with a
permit

issued

pursuant

to

this

section

shall

be

deemed

compliance” with various sections of the statute that detail
effluent limitations and their enforcement. 33 U.S.C. § 1342(k).
The permit shield is meant to prevent permit holders from being
forced to change their procedures due to changes in regulations,
or to face enforcement actions over “whether their permits are
sufficiently strict.” E. I. du Pont de Nemours & Co. v. Train,
430 U.S. 112, 138 n.28 (1977). By rendering permits final, the
shield allows permit holders to conduct their operations without
concern that an unexpected discharge might lead to substantial
liability.
But

this

broad

protection

comes

with

an

important

responsibility at the permit application stage: full compliance
with federal and state reporting requirements, as well as with
the conditions of the permit. We have previously noted just how
crucial this provision of information is to the success of the
CWA: “The effectiveness of the permitting process is heavily
dependent on permit holder compliance with the CWA's monitoring
and

reporting

requirements.”

Piney

Run

Pres.

Ass'n

v.

Cnty.

Comm'rs, 268 F.3d 255, 266 (4th Cir. 2001). Indeed, the extent
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applicability

of

provided

the

permit

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has

a

shield:

direct
“Because

impact
the

on

the

permitting

scheme is dependent on the permitting authority being able to
judge

whether

the

discharge

of

a

particular

pollutant

constitutes a significant threat to the environment, discharges
not

within

the

reasonable

contemplation

of

the

permitting

authority during the permit application process” do not receive
the shield’s protection. Id. at 268.
This emphasis on disclosure echoes the reasoning of the
EPA’s Environmental Appeals Board (“EAB”) in In re Ketchikan
Pulp Co., 7 E.A.D. 605, 1998 WL 284964 (EAB 1998), to which we
applied Chevron deference in Piney Run. See Piney Run, 268 F.3d
at 266-68 (citing Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984)). The EAB emphasized, as we
did in Piney Run, the need for a party to properly document the
contents

of

its

discharges

in

order

to

avail

itself

of

the

permit shield. It noted that “the permit applicant's disclosures
during the application process as to the wastestreams which may
potentially be discharged, and the permit authority's knowledge
as

a

result

determining
Ketchikan,

of

that

whether
1998

WL

disclosure,

the
284964

Shield
at

continued:

11

are

critical

defense

*11.

The

i[s]

factors

in

applicable.”

administrative

body

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[W]hen the permittee has made adequate disclosures
during the application process regarding the nature of
its discharges, unlisted pollutants may be considered
to be within the scope of an NPDES permit, even though
the
permit
does
not
expressly
mention
those
pollutants. The converse is also true: where the
discharger has not adequately disclosed the nature of
its discharges to permit authorities, and as a result
thereof the permit authorities are unaware that
unlisted
pollutants
are
being
discharged,
the
discharge of unlisted pollutants has been held to be
outside the scope of the permit.
Id.
Relying on Ketchikan and its emphasis on the disclosure
built into the CWA permitting scheme, we devised a two-part test
in Piney Run to determine whether § 1342(k) shields a permit
holder from liability:
We therefore view the NPDES permit as shielding its
holder from liability under the Clean Water Act as
long as (1) the permit holder complies with the
express terms of the permit and with the Clean Water
Act's disclosure requirements and (2) the permit
holder does not make a discharge of pollutants that
was not within the reasonable contemplation of the
permitting authority at the time the permit was
issued.”
Piney Run, 268 F.3d at 259. A party must meet both prongs of
this test in order to qualify for the shield. The key questions
regarding A&G’s discharges of selenium, then, are whether it
provided adequate information to the DMME in order to comply
with

the

law

and

permit

conditions,

and

if

the

selenium

discharges were within the reasonable contemplation of the DMME.

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III.
A&G claims that it has met both prongs of the Piney Run
test and as a result can assert the permit shield defense. It
makes three distinct arguments to support this contention. We
address them in turn.
A.
The heart of A&G’s case is that it met prong one of the
Piney Run test because, under the applicable regulations, it was
required to identify selenium in its application only “if [it]
knows or has reason to believe that [it] will be present in the
discharges from any outfall.” Appellant’s Br. at 14 (internal
quotation marks omitted).

Because, A&G asserts, it had no such

knowledge that selenium was present at Kelly Branch, it did not
violate the CWA’s disclosure requirements. See id. at 13-15.
We begin by noting that the provision on which A&G relies -

40

C.F.R.

§ 122.21(g)(vi)(B)

--

applies

to

those

permit

applicants who are not discharging “process wastewater.” A&G’s
permit

application

states

that

both

outfalls

at

issue

would

discharge “surface runoff” and “groundwater.” See J.A. at 342.
The

United

States

has

claimed,

however,

that

the

discharges

described by A&G in its permit application actually meet the
regulatory definition of process wastewater. See Br. of United
States as Amicus Curiae at 22-24. If indeed A&G’s discharge is
process wastewater, then under 40 C.F.R. § 122.21(g)(7)(v)(B),
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A&G would have been required to test for selenium and the other
pollutants listed in table III of appendix D and submit those
tests to the DMME as part of its permit application. We note the
force of the government’s definitional argument, but we need not
decide

the

technical

question

of

whether

A&G

mislabeled

its

discharges from the outfalls. For even assuming A&G properly
identified its runoff, it still failed to fully “compl[y] with
the express terms of the permit and with the Clean Water Act's
disclosure requirements.” Piney Run, 268 F.3d at 259.
The

DMME’s

NPDES

application

instructions

unequivocally

require that an applicant submit an analysis of total selenium
discharged as a part of the permit application. See J.A. at 356.
It is uncontested that A&G did not submit any selenium data with
its application. Furthermore, federal and Virginia regulations
require that an applicant state whether it knows or has reason
to believe any of the pollutants listed in tables II or III of
40 C.F.R. part 122, appendix D is discharged from each outfall.
See 40 C.F.R. § 122.21(g)(7)(vi)(B), 9 Va. Admin. Code § 25-31100(H)(7)(g). As noted, selenium is one of the pollutants listed
in table III. As discussed above, EPA application instructions
indicate

that,

applicant

must

selenium

is

consistent

with

affirmatively

“Believed

the

note

Present”

on
or

regulatory
the

language,

application

“Believed

an

whether

Absent.”

See

Application Form 2C. Silence as to the existence of a referenced
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pollutant is not adequate. Once again, it is uncontested that
A&G did not indicate whether it believed selenium was present or
absent anywhere in its application. As a result, we cannot find
that the company met its disclosure obligations as required by
prong one of the Piney Run test.
A&G’s

framing

of

the

disclosure

requirement

--

that

it

needed to mention selenium only if it knew or had reason to
believe that the element would be present in its discharges -turns the presumptions of the CWA on their head. As noted above,
the

CWA

and

its

implementing

regulations

focus

on

the

information that the permit applicant must gather and provide to
the permitting agency, so that it can make a fully informed
decision

to

issue

the

requested

permit.

The

statute

and

regulations purposefully place the burden of disclosure on the
permit applicant. See Piney Run, 268 F.3d at 268 (“[W]here the
discharger

has

not

adequately

disclosed

the

nature

of

its

discharges to permit authorities, and as a result thereof the
permit

authorities

are

unaware

that

unlisted

pollutants

are

being discharged, the discharge of unlisted pollutants has been
held

to

be

outside

the

scope

of

the

permit.”)

(quoting

Ketchikan, 1998 WL 284964 at *11).
Meanwhile, A&G’s vision of disclosure, which asks solely
about what the permit applicant knew about the presence of a
pollutant

when

it

applied

for

a

15

permit,

subtly

absolves

the

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applicant of the need to provide the mandated information to the
permitting

authority.

In

order

to

do

so,

A&G

replaces

the

requirement in 40 C.F.R. § 122.21(g)(7)(vi)(B) that an applicant
“indicate whether” it knows or has reason to believe a pollutant
is present with one that requires disclosure “if” the applicant
has

or

should

Appellee’s

have

Br.

at

knowledge.
30-31.

See

A&G

Appellant’s

claims

this

Br.

at

difference

14,
is

“immaterial,” Appellant’s Reply Br. at 6 n.7, but the alteration
carries an important consequence. The need to “indicate whether”
a pollutant is present requires that an applicant affirmatively
disclose

after

knowledge

of

stipulates.

appropriate
that

This

inquiry

presence,

regulatory

knowledge

EPA

as

its

Application

Form

2C

consistent

with

the

language

is

or

lack

of

CWA’s emphasis on the need for full disclosure on the part of
permit applicants. See Piney Run, 268 F.3d at 266, Ketchikan,
1998 WL 284964 at *11. By contrast, A&G’s construction assigns
to permit applicants a more passive role. It further encourages
willful blindness by those discharging pollutants and prevents
the state and federal agencies tasked by the CWA with protecting
our

waters

from

receiving

the

information

necessary

to

effectively safeguard the environment.
In order to support its interpretation of our test, A&G
attempts to shoehorn the facts of Piney Run into an argument in
its

favor.

But

the

disclosures
16

in

that

case

make

all

the

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difference. There, we stated, “a permit holder is in compliance
with

the

CWA

even

if

it

discharges

pollutants

that

are

not

listed in its permit, as long as it only discharges pollutants
that

have

been

adequately

disclosed

to

the

permitting

authority.” Piney Run, 268 F.3d at 268. We went on to find that
during the permitting process, the applicant, unlike A&G, did
disclose to the agency that it would be discharging heat (the
pollutant)

as

a

part

of

its

operations.

Id.

at

271-72.

A&G

similarly tries to rely on Atlantic States Legal Foundation,
Inc. v. Eastman Kodak Co., 12 F.3d 353 (2d Cir. 1993) to defend
its lack of disclosure, but this effort is also unavailing. As
the EAB noted in Ketchikan, “Eastman Kodak therefore stands for
the proposition that the discharge of unlisted pollutants is
permissible when the pollutants have been disclosed to permit
authorities during the permitting process.” 1998 WL 284964 at
*10

(emphasis

added).

Because

A&G

did

not

disclose

selenium

during the permitting process, these cases are of no assistance.
A&G and its amici claim that in order to find that the coal
company was required to disclose selenium, we must expose all
permit

applicants

to

the

prospect

of

endless

disclosure

of

countless known pollutants. See Appellant’s Br. at 14, Br. of
Amici Curiae Am. Forest & Paper Ass’n et al. at 13-15, Br. of
Amici Curiae Va. Coal & Energy Alliance, Inc. et al. at 12-14.
But this slippery-slope concern does not comport with the CWA
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scheme. Selenium is not just some obscure pollutant that might
happen to show up in a discharger’s wastestream. It is one of
fifteen “Other Toxic Pollutants (Metals and Cyanide) and Total
Phenols” listed in table III of appendix D to part 122 of 40
C.F.R. Table II lists an additional 110 pollutants. Under the
relevant

federal

and

state

regulations,

an

applicant

must

disclose “whether it knows or has reason to believe that any of
the pollutants listed” in these two tables are being discharged.
40

C.F.R.

§ 122.21(g)(7)(vi)(B);

see

also

9

Va.

Admin.

Code

§ 25-31-100(H)(7)(g). We do not pretend that it places no burden
on an applicant to disclose its knowledge, or lack thereof, of
the presence of the listed pollutants in its discharges. But it
did not strike the framers of the CWA and its regulations as too
high

a

price

to

pay

for

the

significant

protections

of

the

permit shield.
B.
A&G next argues that its disclosures were adequate because
under a 1995 EPA policy memorandum, the permit shield applies to
those

“[p]ollutants

not

identified

as

present

but

which

are

constituents of wastestreams, operations or processes that were
clearly

identified

process

and

in

contained

writing
in

the

during

the

permit

administrative

application

record

which

is

available to the public.” EPA, Revised Policy Statement on Scope
of

Discharge

Authorization

and
18

Shield

Associated

with

NPDES

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Permits

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(“1995

(emphasis

EPA

Policy

omitted).

Pg: 19 of 23

Statement”)

Because,

A&G

at

3

(Apr.

contends,

11,
it

1995)

clearly

identified its wastestreams, operations, and processes in the
permit

application,

wastestreams,

it

and

acted

selenium

was

consistently

a
with

constituent
EPA’s

of

its

guidance

on

disclosures. See Appellant’s Br. at 18-19.
We do not find, however, that the memorandum provides A&G
with the support it seeks. First and foremost, the same document
states

very

clearly

that

“[t]he

availability

of

the

section

402(k) permit shield is predicated upon the issuance of an NPDES
permit and a permittee’s full compliance with all applicable
application requirements, any additional informational requests
made by the permit authority and any applicable notification
requirements.”

1995

EPA

Policy

Statement

at

2.

As

discussed

above, A&G has not complied with the application instructions or
the

notification

regulations.

It

requirements
cannot

simply

in

the

use

this

state

and

assertedly

federal
favorable

language to circumvent its failure to disclose as required.
A&G’s interpretation of the 1995 EPA Policy Statement is
also at odds with the EPA’s own interpretation of the CWA in
Ketchikan.

In

that

adjudication,

a

permit-holding

pulp

mill

attempted to access the permit shield defense for discharges of
flocculent

and

disclosed

that

cooking
it

acid.

would

In

its

discharge
19

permit
“Water

application,
Treatment

it

Plant

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Backwash”

from

Pg: 20 of 23

one

of

its

outfalls,

and

that

it

engaged in “Pulp Bleaching & Formation” that would contribute
wastewater
presence
284964

to

of
at

another.

It

flocculent
*4,

*18.

did

or

not,

cooking

The

permit

however,

acid.

identify

Ketchikan,

issued

to

the

the

1998

pulp

WL

mill

accordingly made no mention of either substance. Id. at *5.
Like A&G, the pulp mill argued that the NPDES regulations
are designed to provide flexibility to a permit holder, and that
a general disclosure of wastestreams, operations, and processes
was sufficient to gain access to the permit shield. Id. at *14.
But

the

in

to

identical

EAB,

evaluating

that

put

an

forward

EPA
here

policy
by

memorandum

A&G,

found

nearly

that

this

general description of the plant’s operation did not provide the
agency with adequate information about the mill’s discharges to
qualify the applicant for the permit shield.
In
discharge

particular,
of

the

cooking

EAB

acid

rejected
was

an

argument

“implicitly”

that

covered

by

the
the

permit, because the agency was generally aware that spills occur
and

did

not

specifically

proscribe

the

discharge

of

the

pollutant. Id. at *16. This argument strongly resembles that of
A&G, and the EAB emphatically rejected it: “[T]here is nothing
in that ‘general’ description indicating that cooking acid would
be

discharged

under

any

circumstances.

In

short,

there

is

nothing in the application which could have or should have put
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Region permitting authorities on notice that [the mill] would
discharge cooking acid (magnesium bisulfite).” Id. at *18. Thus,
the EPA’s construction of its own guidance, endorsed by this
court in Piney Run, forecloses A&G’s argument that its general
disclosure was sufficient.
C.
Finally, A&G argues there is a genuine issue of material
fact

concerning

whether

the

DMME

anticipated

that

the

coal

company would discharge selenium. Thus for purposes of summary
judgment, it contends, it can also meet the second prong of the
Piney Run test: that its discharges of selenium were within the
reasonable contemplation of the DMME. See Appellant’s Br. at 1922. 3
Because we have found that A&G fails the first prong of the
Piney Run test, we need not reach its contention that it has

3

A&G has also argued that the district court abused its
discretion by refusing to consider the untimely submission of a
1997 letter regarding selenium testing in the area of Kelly
Branch. We find no abuse of discretion in the district court’s
decision to evaluate the submission pursuant to Federal Rule of
Civil Procedure 6(b), nor in its application of the excusable
neglect test. See S. Appalachian Mountain Stewards v. A & G Coal
Corp., No. 2:12CV00009, 2013 WL 3814340 at *3-*4 & n.4 (W.D. Va.
July 22, 2013). The determination of whether to admit evidence - here made after deploying the fact-dependent, four-factor
excusable neglect test -- is precisely the type of decision that
the district court is best positioned to make. We decline to
substitute the judgment of an appellate court for that of the
district judge who oversaw the taking of evidence throughout the
summary judgment process.
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also met the second prong. We nonetheless highlight the lack of
consistency
repeatedly

that
that

discharge

plagues
it

selenium

had

A&G’s

no

from

argument.

reason

Kelly

to

A&G

believe

Branch.

In

has
that

the

asserted
it

same

would

breath,

however, it contends that, because it had previously informed
the DMME of the presence of selenium at a different mine in the
same watershed, the Kelly Branch selenium discharges were within
the reasonable contemplation of the agency.
This is difficult to comprehend. Either A&G and the DMME
should both have been aware that selenium would be discharged,
or neither had reason to be. If the former is true, then A&G
fails

prong

one

of

the

Piney

Run

test

because

it

did

not

indicate that it had reason to believe that it would discharge
selenium.

If

the

latter

is

correct,

and

neither

the

permit

applicant nor the agency reasonably anticipated the discharge,
then A&G fails both prongs of Piney Run. Not only, as discussed
above,

did

requirements

the

coal

company

not

its

permit

instructions

of

comply

with

the

and

reporting

the

relevant

regulations; it also would have provided no evidence that the
DMME

had

Appellant’s

reason
attempt

to
to

anticipate
have

it

cannot prevail.

22

the

both

selenium

ways

discharges.

underscores

why

it

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IV.
A&G requests that we remand this case for further factual
development. We find no need to do so. There is no question that
A&G

was

discharging

selenium

from

Kelly

Branch.

There

is

no

question that selenium is a pollutant under the CWA. And there
is

no

question

that

A&G

was

required

by

its

DMME

permit

application instructions to test for the presence of selenium
and by

federal

and

state

regulations

to,

at

minimum,

report

whether it believed selenium to be present or absent. It failed
to fulfill these obligations.
All

that

is

before

us

is

the

question

of

whether

the

defendant can assert the 33 U.S.C. § 1342(k) permit shield as an
affirmative defense. As with any such defense, the defendant
bears the burden of proving that it may validly advance it. See
Ray Commc'ns, Inc. v. Clear Channel Commc'ns, Inc., 673 F.3d
294,

299

(4th

Cir.

2012).

To

allow

the

defense

in

these

circumstances would tear a large hole in the CWA, whose purpose
it is to protect the waters of Appalachia and the nation and
their

healthfulness,

wildlife,

and

natural

beauty.

See

id.

§ 1251(a) (stating that the goal of the CWA is to safeguard the
chemical,

physical,

and

biological

integrity

of

American

waters).
We thus affirm the judgment.
AFFIRMED
23