Alaska Community Action on Toxics v. Aurora Energy Services, LLC

765 F.3d 1169, 44 Envtl. L. Rep. (Envtl. Law Inst.) 20201, 79 ERC (BNA) 1001, 2014 U.S. App. LEXIS 17175, 2014 WL 4339239
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 3, 2014
DocketNo. 13-35709
StatusPublished
Cited by16 cases

This text of 765 F.3d 1169 (Alaska Community Action on Toxics v. Aurora Energy Services, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alaska Community Action on Toxics v. Aurora Energy Services, LLC, 765 F.3d 1169, 44 Envtl. L. Rep. (Envtl. Law Inst.) 20201, 79 ERC (BNA) 1001, 2014 U.S. App. LEXIS 17175, 2014 WL 4339239 (9th Cir. 2014).

Opinion

[1171]*1171OPINION

FARRIS, Circuit Judge:

Plaintiffs Alaska Community Action on Toxics and Alaska Chapter of the Sierra Club appeal from the district court’s grant of summary judgment to defendants Aurora Energy Services, LLC, and Alaska Railroad Corp. The district court ruled that defendants’ non-stormwater discharges of coal into Resurrection Bay, Alaska, complied with the Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity — a general permit under EPA’s National Pollutant Discharge Elimination System — and thus defendants were shielded from liability under the Clean Water Act. We have jurisdiction under 28 U.S.C. § 1291 and hold that the General Permit prohibits defendants’ non-stormwater coal discharges. We reverse the district court’s judgment and remand for further proceedings.

I.

“Section 301(a) of the [Clean Water Act] prohibits the ‘discharge of any pollutant’ from any ‘point source’ into ‘navigable waters’ unless the discharge complies with certain other sections of the CWA.” Natural Res. Def. Council, Inc. v. Cnty. of L.A., 725 F.3d 1194, 1198 (9th Cir.2013) (citing 33 U.S.C. § 1311(a)). “One of those sections is section 402, which provides for the issuance of NPDES permits.” Id. (citing 33 U.S.C. § 1342). “In nearly all cases, an NPDES permit is required before anyone may lawfully discharge a pollutant from a point source into the navigable waters of the United States.” Id. If a discharger is covered by a NPDES permit and complies with that permit, the permit “shields” it from liability under the CWA, even if EPA promulgates more stringent limitations over the life of the permit. 33 U.S.C. § 1342(k); Natural Res. Def. Council, 725 F.3d at 1204. However, any violation of the permit’s terms constitutes a violation of the CWA. See 40 C.F.R. § 122.41(a); Natural Res. Def. Council, 725 F.3d at 1204.

There are two types of NPDES permit: individual and general. Natural Res. Def. Council v. U.S. E.P.A, 279 F.3d 1180, 1183 (9th Cir.2002). “An individual permit authorizes a specific entity to discharge a pollutant in a specific place and is issued after an informal agency adjudication process.” Id. (citing 40 C.F.R. §§ 122.21, 124.1-124.21, 124.51-124.66). A general permit, by contrast, is issued for an entire class of hypothetical dischargers in a given geographical region and is issued pursuant to administrative rulemaking procedures. See id. § 122.28. Once a general permit has been issued, an entity seeking coverage generally must submit a “notice of intent” to discharge pursuant to the permit. Id. § 122.28(b)(2). The date on which coverage commences depends on the terms of the particular general permit, such as, inter alia, upon receipt of the notice of intent or after a specified waiting period. Id. § 122.28(b)(2)(iv). Additionally, the permit issuer may require a potential discharger to apply for an individual permit. Id. § 122.28(b)(3).

An NPDES permit is required for stormwater discharges associated with industrial activity. 33 U.S.C. § 1342(p); 40 C.F.R. § 122.26(c)(1); Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832, 841 (9th Cir.2003). Under EPA regulations, “stormwater” is defined as “storm water runoff, snow melt runoff, and surface runoff and drainage.” 40 C.F.R. § 122.26(b)(13). “Storm water discharge associated with industrial activity” is defined as “the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an indus[1172]*1172trial plant.” Id. § 122.26(b)(14). At issue here is the Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity, first issued in 1995 and since reissued in 2000 and 2008. See E.P.A., EPA’s Multi-Sector General Permit (MSGP), http://water.epa.gov/ polwaste/npdes/stormwater/EPA-Multi-Sector-General-Permit-MSGP.cfm (last visited August 13, 2014).

II.

The Seward Coal Loading Facility, owned by defendant Alaska Railroad Corp. and operated by defendant Aurora Energy Services, is located in Seward, Alaska, on the northwest shore of Resurrection Bay. The Seward Facility receives coal by rail-car and transfers it onto ships through a conveyor system. Allegedly, this system spills coal into the bay — a non-stormwater discharge. However, the Seward Facility has been covered under the Multi-Sector General Permit since 2001, and defendants argue that any such discharge is authorized by the General Permit.

Plaintiffs disagree, and filed a citizen suit in district court on December 28, 2009. On March 28, 2013, the district court granted summary judgment to defendants on the bulk of plaintiffs’ claims, reasoning that defendants’ non-stormwater coal discharges were covered by the General Permit. After plaintiffs voluntarily dismissed the surviving claim, the court entered judgment for defendants.

III.

We review the district court’s grant of summary judgment de novo. Cohen v. City of Culver City, 754 F.3d 690, 694 (9th Cir.2014). In particular, we review de novo “[t]he district court’s interpretation of unambiguous terms of [an] NPDES permit.” Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 (9th Cir.1998).

IV.

The sole issue on appeal is whether defendants’ alleged non-stormwater discharge of coal from the Seward Facility’s conveyor system and ship loading area into Resurrection Bay is covered by the General Permit. We interpret general permits as we would a regulation. See Natural Res. Def. Council, 279 F.3d at 1183 (noting that general permits “are issued pursuant to administrative rulemaking procedures”); E.P.A., General Permit Program Guidance 21 (1988), available at http://www. epa.gov/npdes/pubs/owm0381.pdf (“[General permits are considered to be rulemak-ings .... ”). “A regulation should be construed to give effect to the natural and plain meaning of its words.” Bayview Hunters Point Cmty. Advocates v. Metro. Transp. Comm’n, 366 F.3d 692, 698 (9th Cir.2004) (quoting Crown Pacific v. Occupational Safety & Health Review Comm’n, 197 F.3d 1036, 1038 (9th Cir.1999)).

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765 F.3d 1169, 44 Envtl. L. Rep. (Envtl. Law Inst.) 20201, 79 ERC (BNA) 1001, 2014 U.S. App. LEXIS 17175, 2014 WL 4339239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alaska-community-action-on-toxics-v-aurora-energy-services-llc-ca9-2014.