                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-2050


SOUTHERN   APPALACHIAN    MOUNTAIN   STEWARDS;     SIERRA   CLUB;
APPALACHIAN VOICES,

                 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:   July 11, 2014


Before WILKINSON, AGEE, and DIAZ, Circuit Judges.
Affirmed by published opinion.       Judge Wilkinson       wrote   the
opinion, in which Judge Agee and Judge Diaz joined.


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.




                                  2
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    presence         of    this       pollutant          during     the   permit

application        process.         We    hold       that        the   shield       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    application,             A&G   indicated          that     its    operation    at

Kelly    Branch     was       “bituminous        coal           mining.”    The     application

provided     information           regarding         the    discharges       from    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

                                                 3
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                  (environmental         groups     collectively

referred         to     as    Southern       Appalachian       Mountain      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,           SAMS    brought    this    suit    against   A&G     for

declaratory           and    injunctive       relief    and     civil    penalties.      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).


                                                  4
     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.




                                       5
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.


                                         6
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,        the    agency      then    develops      a    draft    permit     made

available      to   the    public      for     notice     and     comment.    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    pertinent     requirements           for    applicants      that     operate

within    a    primary     industry       category,        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,

                                               7
byproduct,        or    waste     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     pollutants       that    must   be    tested     for    in    process

wastewater        pursuant      to   regulation).        Thus,    those     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.

                                             8
       Virginia has incorporated these same requirements into its

own    regulations,           using      nearly     identical     language.         See       9    Va.

Admin.    Code      §    25-31-100(H)(7)(e)(2)             (requiring       applicants             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;       .       .    .    Total

Selenium      .     .    .    .    The    applicant      must     report    at          least      one

analys[i]s        for     each         pollutant.     Please     attach    certificate             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.




                                                  9
                                        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

                                        10
of    the     information          provided        has     a       direct    impact     on   the

applicability         of     the     permit    shield:         “Because      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     of     that     disclosure,         are       critical      factors    in

determining          whether       the      Shield        defense       i[s]       applicable.”

Ketchikan,         1998     WL     284964     at    *11.       The    administrative         body

continued:



                                               11
       [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.




                                    12
                                   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),

                                    13
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 § 25-31-

100(H)(7)(g). As noted, selenium is one of the pollutants listed

in table III. As discussed above, EPA application instructions

indicate    that,    consistent    with       the   regulatory    language,    an

applicant   must     affirmatively   note      on   the   application   whether

selenium    is     “Believed    Present”       or   “Believed     Absent.”    See

Application Form 2C. Silence as to the existence of a referenced

                                         14
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    permit,     subtly   absolves     the

                                             15
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      have    knowledge.      See      Appellant’s       Br.    at     14,

Appellee’s      Br.     at    30-31.     A&G      claims      this      difference      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     appropriate       inquiry       its    knowledge    or     lack    of

knowledge      of     that    presence,      as       EPA    Application        Form    2C

stipulates.     This       regulatory    language       is    consistent        with    the

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        in    that    case     make    all     the

                                          16
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

                                              17
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    in     writing     during      the   permit       application

process      and     contained   in    the     administrative         record    which      is

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

of   Discharge        Authorization      and      Shield    Associated        with    NPDES

                                             18
Permits    (“1995       EPA       Policy    Statement”)             at    3   (Apr.      11,    1995)

(emphasis    omitted).                  Because,         A&G        contends,        it     clearly

identified its wastestreams, operations, and processes in the

permit    application,            and     selenium           was    a    constituent       of     its

wastestreams,          it    acted      consistently            with      EPA’s     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               requirements           in     the       state      and    federal

regulations.       It       cannot      simply     use        this       assertedly       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    cooking         acid.      In    its       permit     application,         it

disclosed    that           it    would     discharge              “Water     Treatment         Plant

                                                19
Filtration        Backwash”         from       one     of    its     outfalls,      and    that     it

engaged in “Pulp Bleaching & Formation” that would contribute

wastewater        to     another.          It    did        not,     however,      identify       the

presence     of        flocculent         or    cooking         acid.      Ketchikan,      1998    WL

284964      at    *4,        *18.    The        permit       issued        to    the     pulp    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    EAB,       in    evaluating         an       EPA    policy      memorandum         nearly

identical        to    that    put    forward          here     by    A&G,      found    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     particular,            the    EAB       rejected        an    argument       that    the

discharge        of     cooking       acid       was      “implicitly”           covered    by    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

                                                     20
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 19-

22. 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.


                                         21
also met the second prong. We nonetheless highlight the lack of

consistency         that    plagues          A&G’s     argument.         A&G     has     asserted

repeatedly      that       it   had     no    reason       to    believe       that     it    would

discharge       selenium        from     Kelly       Branch.       In    the     same      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    the       coal      company     not       comply       with   the      reporting

requirements         of    its       permit      instructions            and     the    relevant

regulations; it also would have provided no evidence that the

DMME     had     reason         to      anticipate         the      selenium       discharges.

Appellant’s      attempt        to    have     it    both       ways    underscores          why    it

cannot prevail.




                                                22
                                               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

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