On September 3, 2014, the Ninth Circuit issued its ruling in Alaska Community Action on Toxics v. Aurora Energy Services, No. 13-35709 (9th Cir. 2014). See http://cdn.ca9.uscourts.gov/datastore/opinions/2014/09/03/13-35709.pdf for full opinion. The three judge panel overturned the district court’s finding that the defendant’s discharges of coal into Alaska’s Resurrection Bay were covered by EPA’s Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity.
A coal barge loads coal at the Seward, Alaska Coal Loading Facility operated by Alaska Railroad and Aurora Energy Services. Photo courtesy Alaska Railroad Corporation, Facility Facts (2/17/2010).
The Ninth Circuit’s decision was based on the language of the General Permit rather than a differing view from that articulated by the District Court of the scope of CWA § 402(k)’s permit shield. First, the Court reiterated the two-prong test set forth in Piney Run Pres. Ass’n v. Cnty. Comm’rs, 268 F.3d 255, 259 (4th Cir. 2001): an NPDES permit shields a permittee from liability under the CWA as long as (1) the permit holder complies with the express terms of the permit and with the Clean Water Act's disclosure requirements and (2) the permit holder does not make a discharge of pollutants that was not within the reasonable contemplation of the permitting authority at the time the permit was issued.
The Court began its analysis of the first prong by examining Section 2 of the General Permit, “Control Measures and Effluent Limits.” Part 126.96.36.199 of the Permit states: “You must eliminated nonstormwater discharges not authorized by an NPDES permit.” Part 188.8.131.52 goes on to refer to “Part 1..3 for a list of non-stormwater discharges authorized by this permit.” See Fig. 1.
Part 1.1.3 lists eleven categories of non-stormwater discharge. The Court analyzed the list of exceptions to the general prohibition against non-stormwater discharges in the context of the permit as a whole. The Court pointed to the language associated with Part 1.1.3—“non-stormwater discharges authorized under this permit”—as evidence that those eleven categories were the only non-stormwater discharges authorized. See Fig. 2.
Aurora pointed to the fact that Part 8 contained an additional authorization for stormwater discharges from timbering operations as evidence that the list was not intended to be exclusive. The Court found that, while the list in Part 1.1.3 may not have been an exclusive list of permissible non-stormwater discharges, the structure of the General Permit counseled against finding that it authorized Aurora’s coal discharges. The Court reasoned that, if the General Permit had simply stated that permittees must eliminate non-stormwater discharges not authorized by an NPDES permit, then there may have been some ambiguity as to which non-stormwater discharges were authorized. However, the very next sentence referred permittees to Part 1.1.3 for a list of non-stormwater discharges excepted from this general prohibition.
The Court found the explicit reference to excepted non-stormwater discharges, taken together with the lack of any specific carve-outs from the general prohibition for Aurora’s industry or discharge-type, to be conclusive evidence that the General Permit was not intended to cover Autora’s non-stormwater coal discharges. The Court concluded that “the express terms of the General Permit prohibit defendants’ non-stormwater coal discharges, thus defendants would not be shielded from liability.”
The Court’s holding hinged upon the specific authorization of the Multi-Sector General permit rather than its construction of the permit shield provided by CWA § 402(k) or a novel interpretation of the “reasonable contemplation” prong of the Piney Run test. In fact, the Court’s finding that Aurora’s discharge was specifically prohibited by the General Permit rendered a discussion of the “reasonable contemplation” test unnecessary. Although the Court took a more narrow view than the District Court of the authorization provided by EPA’s Multi-Sector General Permit, its opinion does not diminish the permit shield protection afforded to discharges authorized under valid general permits. Permittees who comply with applicable disclosure requirements continue to be shielded from CWA liability where their discharges are not specifically prohibited by the permit in question and where the pollutants in their effluent were reasonably contemplated by the permitting authority when the permit was issued.