The Court of Appeals for the Fourth Circuit recently decided that the West Virginia Department of Environmental Protection needed a wastewater discharge permit for a mine drainage reclamation project it was running on an abandoned mine. West Virginia Highlands Conservancy Inc. v. Huffman, No. 09-1474 (4th Cir. Nov. 8, 2010). In my November column in The Legal Intelligencer / Pennsylvania Law Weekly, I consider whether this approach, although entirely conventional and probably in line with the Clean Water Act, misses the point. A permit is an opportunity for third parties to have input, and ultimately to litigate, over the way an activity is carried out. Under the Superfund, HSCA, and Act 2 contamination programs, we do not allow third-party input or litigation, at least not before the remedy is complete. When do we want to impose that impediment on new activity, and when do we want to get some clean up, even when it is not a perfect clean up? The full column is here.
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