Alaska Cmty. Action v. Aurora

General Permits issued under the Environmental Protection Agency’s National Pollutant Discharge Elimination System authorize an exclusive list of allowable non-stormwater discharges, and non-stormwater coal discharges are not included in that list, therefore they are prohibited by the plain terms of the General Permits.

The Clean Water Act prohibits entities from releasing pollutants into navigable waters unless the entity has a permit under the Environmental Protection Agency’s National Pollutant Discharge Elimination System. An entity may acquire either an individual permit, which authorizes it to dump pollutants in a specific place, or a general permit, which allows entire classes of dischargers to dump in a geographical region. Aurora Energy Services, LLC, and Alaska Railroad Corp. (“defendants”), own and operate Seward Coal Loading Facility, which receives coal and subsequently transfers it onto ships. During this process, some of the coal is discharged into the bay. Defendants believed that a Multi-Sector General Permit (“General Permit”) covered their actions. However, Alaska Community Action on Toxics and the Alaska Chapter of the Sierra Club (“plaintiffs”) disagreed, and brought suit against the defendants. Following the district court’s grant of summary judgment to the defendants, the plaintiffs appealed. The Ninth Circuit held that general permits are issued following administrative rulemaking procedures, and should be “construed to give effect to the natural and plain meaning of [their] words.” General Permits authorize an exclusive list of allowable non-stormwater discharges and coal discharges are not included in that list. The panel determined that the district erred in granting summary judgment to defendants because defendants’ discharges of coal were prohibited by the plain terms of General Permits. Since the General Permit prohibited defendants’ non-stormwater coal discharges, they were not shielded from liability and the district court’s summary judgment ruling was reversed. REVERSED AND REMANDED.