ANCHORAGE, Alaska (CN) - A revised settlement filed late Wednesday satisfied both environmentalists and the owners and operators of a railroad coal loading facility taken to task in 2009 for dumping coal in Alaska's Resurrection Bay.
The revised consent degree replaces the original decree, filed on Dec. 8.
Initially, U.S. District Judge Timothy Burgess in Anchorage had excused defendants Alaska Railroad Corp. and Aurora Energy Services from any Clean Water Act violations, but the Ninth Circuit reversed him in 2014.
The unanimous appellate panel agreed with plaintiff's Alaska Community Action on Toxics and the Alaska chapter of the Sierra Club that coal from the Seward Coal Loading Facility is not among the 11 categories of allowable non-stormwater discharges under their general federal permit.
"The plain terms of the general permit prohibit defendants' non-stormwater discharge of coal," Circuit Judge Jerome Farris wrote for the three-judge panel. "The district court erred in concluding that the general permit shielded defendants from liability for their non-stormwater coal discharges."
Environmentalists had sought to bar the defendants from "discharging of coal into the bay from the shiploader and related machinery," as well as prevention of "wind-borne coal dust and plowing of coal-contaminated snow into the bay," they said in their complaint.
Rather than a "multi-sector general permit for stormwater discharges associated with industrial activity" defendants needed an" individual permit" to load coal delivered by rail cars onto ships along the Alaska's southern shore, according to the complaint.
After the ruling defendants entered into an order by consent with the Alaska Department of Environmental Conservation, agreeing to apply for the proper facility permit, develop and implement "best management practices" to minimize discharges into the water and comply with the order's conditions related to inspection and enforcement.
With their agreement to undertake a voluntary supplemental environmental project, defendants will avoid paying Clean Water Act civil penalties. However, Aurora Energy Services agreed to pay $10,000 to Kachemak Heritage Land Trust for a salmon habitat identification project in the Resurrection Bay watershed.
Facility operators will also install skirting on shiploading conveyors and notify all parties if a major event occurs that will delay them from their obligations. The companies are also on the hook for $362,500 in attorney fees and costs.
While settlement resolves all claims, the parties requested that the court not enter the decree until the mandatory 45 days for federal review and comment has passed.
None of the parties returned emailed requests for comment.
The plaintiffs were represented by attorney Brian Litmans of Anchorage and Peter Morgan of the Sierra Environmental Law Program in San Francisco.
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