Home » Case Summaries » 2015 » Alaska Community Action on Toxics v. Aurora Energy Services LLC, 765 F.3d 1169 (2014)


Alaska Community Action on Toxics v. Aurora Energy Services LLC, 765 F.3d 1169 (2014)


Alaska Community Action on Toxics (ACAT)[1] filed a citizen suit against Aurora Energy Services (Aurora)[2] under the Clean Water Act (CWA).[3] ACAT alleged that Aurora violated the CWA due to its unpermitted discharge of nonstormwater coal into Resurrection Bay. The United States District Court for the District of Alaska held that the discharge was covered by Aurora’s National Pollutant Discharge Elimination System (NPDES) permit and accordingly granted summary judgment for Aurora. On appeal, the Ninth Circuit held that the discharge was not covered by the permit, reversed the grant of summary judgment, and remanded the case.

Aurora operates the Seward Coal Loading Facility (the Facility) on the shore of Resurrection Bay in Seward, Alaska. The Facility receives coal by train and loads the coal onto ships by conveyor. ACAT alleged that during this process coal spills into the bay in violation of the CWA. The CWA prohibits “the discharge of any pollutant by any person” into navigable waterways, unless the discharge is otherwise authorized under the CWA.[4] One form of authorization is the issuance of an NPDES permit.[5] A general NPDES permit allows for the discharge of a broad class of materials within a specified geographic area.[6] The Facility was issued a NPDES Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (Stormwater Permit) in 2001.

The sole issue on appeal was whether the Stormwater Permit allowed the Facility’s alleged discharge of coal into the bay. The Ninth Circuit reviewed this question de novo.

In evaluating the conduct permitted under the Stormwater Permit, the Ninth Circuit looked to the plain text of the permit. Because the Stormwater Permit explicitly authorized eleven categories of nonstormwater discharge, but not the type of coal discharge at issue, the Ninth Circuit held that the discharge was not authorized by the Stormwater Permit. Aurora argued that the list of approved discharges was not intended to be exclusive because: 1) other types of discharge were authorized in separate sections of the permit; and 2) provisions in the permit prohibiting specific types of discharge would be superfluous if the list was exclusive. However, the Ninth Circuit responded that the other authorization sections applied to different types of facilities, and that the plain text of the Stormwater Permit was sufficiently clear to justify an interpretation resulting in surplusage. Thus, the Ninth Circuit held that the discharge of coal by Aurora was not covered by the Stormwater Permit. The Ninth Circuit noted it would have reached the same conclusion under theanalysis applied to individual permits,[7] although the court declined to reach the issue of whether that analysis applied to the general permit in this case.

In sum, the Ninth Circuit held that the district court erred in granting summary judgment to Aurora because the Facility’s coal discharge was not authorized under its Stormwater Permit. Accordingly, the Ninth Circuit reversed the grant of summary judgment and remanded the case for further proceedings.


Footnotes    (↵ returns to text)

  1. Plaintiff-appellants include ACAT and the Alaska Chapter of the Sierra Club.
  2. Defendant-appellees include Aurora and Alaska Railroad Corporation.
  3. Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1387 (2012).
  4. Id. § 1311(a).
  5. Id. § 1342(a).
  6. General Permits, 40 C.F.R. § 122.28(a)(1) (2014).
  7. Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md., 268 F.3d 255, 259 (4th Cir. 2001) (holding that a permittee is not liable under the CWA if it: 1) complies with the terms of the permit and with the CWA’s disclosure requirements; and 2) discharges pollutants that were disclosed to the permitting authority and that the permitting authority would have reasonably contemplated during the permitting process).
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