Challenge of Coal Dumping in Alaska Revived by 9th Circuit

     (CN) – A federal permit does not allow a coal-loading facility to drop coal into Alaska’s Resurrection Bay, the 9th Circuit ruled Wednesday.
     Owned by Alaska Railroad Corp. and run by Aurora Energy Services, the Seward Coal Loading Facility loads coal delivered by rail cars onto ships on the northwest shore of Resurrection Bay, along the state’s southern shore.
     Alaska Community Action on Toxics and the Alaska Chapter of the Sierra Club sued Aurora and Alaska Railroad in 2009, alleging that the facility regularly dropped coal into the bay during the loading process. They argued in a citizen suit that a permit the U.S. Environment Protection Agency (EPA) issued the facility does not cover such “non-stormwater coal discharges.”
     Ruling for the companies, U.S. District Judge Timothy Burgess in Anchorage said that the “Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity” excused the facility from liability under the Clean Water Act.
     A unanimous appellate panel reversed on Wednesday, reviving the groups’ claims.
     The facility’s permit requires it to “eliminate” all non-stormwater discharges that are not specifically authorized. The permit authorizes 11 different categories of non-stormwater discharges, but coal is not one of them, the panel found.
     “The plain terms of the General Permit prohibit defendants’ non-stormwater discharge of coal,” 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,” he added.
     The Anchorage-based panel remanded the case back to District Court.

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