Alaska Community Action on Toxics v. Aurora Energy Services, LLC
765 F.3d 1169
9th Cir.2014Background
- Seward Coal Loading Facility in Resurrection Bay, Alaska, owned by Alaska Railroad Corp. and operated by Aurora Energy Services, transfers coal via conveyor to ships; coal allegedly spills into the bay as non-stormwater discharges.
- Facility has been covered under EPA’s Multi-Sector General Permit (MSGP) for Stormwater Discharges Associated with Industrial Activity since 2001.
- Plaintiffs (Alaska Community Action on Toxics and Alaska Chapter of the Sierra Club) sued under the Clean Water Act, alleging unauthorized non-stormwater coal discharges.
- District court granted summary judgment to defendants, concluding the MSGP authorized the non-stormwater coal discharges and thus shielded defendants from CWA liability.
- Ninth Circuit reviews de novo and interprets the MSGP as it would a regulation; the court focused on whether the permit’s text authorizes the coal discharges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ non-stormwater coal discharges are authorized by the MSGP | MSGP’s list of authorized non-stormwater discharges (Part 1.1.3) does not include coal spills, so such discharges are prohibited | MSGP allows non-stormwater discharges beyond Part 1.1.3 for certain sectors (e.g., Part 8.A.2.2) and thus the coal discharges are authorized for covered facilities | The court held the MSGP prohibits non-stormwater coal discharges at Sector AD facilities because Part 2.1.2.10 directs permittees to Part 1.1.3’s list, and Sector AD has no supplemental authorization; defendants are not shielded |
Key Cases Cited
- Natural Res. Def. Council, Inc. v. Cnty. of L.A., 725 F.3d 1194 (9th Cir. 2013) (NPDES permits required; permit compliance shields from CWA liability)
- Natural Res. Def. Council v. U.S. E.P.A., 279 F.3d 1180 (9th Cir. 2002) (distinguishing individual and general NPDES permits and notice-of-intent process)
- Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832 (9th Cir. 2003) (stormwater NPDES requirements for industrial activity)
- Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136 (9th Cir. 1998) (de novo review of permit interpretation)
- Bayview Hunters Point Cmty. Advocates v. Metro. Transp. Comm’n, 366 F.3d 692 (9th Cir. 2004) (regulatory text should be given its plain meaning)
- Piney Run Preservation Ass’n v. County Comm’rs, 268 F.3d 255 (4th Cir. 2001) (permit-shield analysis: compliance plus disclosure/foreseeability in permitting process)
- Hart v. McLucas, 535 F.2d 516 (9th Cir. 1976) (avoid interpretations that render permit provisions superfluous)
- Cohen v. City of Culver City, 754 F.3d 690 (9th Cir. 2014) (standard of review for summary judgment)