Alaska Coal Dumping Challenge Revived

A company owned by Alaska Railroad Corp. cannot drop coal from its coal-loading facility into Alaska’s Resurrection Bay, the 9th U.S. Circuit Court of Appeals ruled Wednesday.

In 2009, environmentalists, led by Alaska Community Action on Toxics and the Sierra Club’s Alaska chapter sued Aurora Energy Services, owned by the rail line, and Seward Coal Loading Facility.  The groups accused the companies of routinely dropping coal into the bay during the loading process, something they argued was not allowed by the federal permit.

The suit claimed the company violated the Clean Water Act.  But the initial decision by U.S. District Judge timothy Burgess in Anchorage held in favor of the railroad, Aurora and Seward.  He said the general stormwater discharge permit excused the facility from liability under the Clean Water Act.

The appeals court reversed and sent the case back to the lower court.

Seward, owned by Alaska Railroad and operated by Aurora, receives coal by railcar on the northwest shore of Resurrection Bay and transfers it onto ships through a conveyor system.  The environmental groups alleged the system spills coal into the bay.

Seward has been covered by a general permit to discharge from the Environmental Protection Agency since 2001.  There are two types of permits: individual, which authorizes a specific entity to discharge a pollutant in a specific place, or a general permit, which is issued to an entire class of potential dischargers in a geographic region.

Seward, under a general permit, would be required to submit a “notice of intent” to discharge.  The EPA might then require the firm to apply for an individual permit.

Seward argued its discharge of spilled coal was allowed by the general permit.

“The plain terms of the general permit prohibit defendants’ non-stormwater discharge of coal,” the appeals court stated.

Rather than have firms guess at what is allowed and what is not under a general permit, the EPA includes a list of non-stormwater discharges that are authorized.  “Defendants’non-stormwater coal discharges are not on this list, thus they are plainly prohibited,” the panel wrote.

Case: Alaska Community Action v. Aurora, No. 13-35709

 

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