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

On September 3, 2014, the Ninth Circuit Court of Appeals reversed and remanded a district court decision that exempted non-stormwater discharges of coal into Alaska’s Resurrection Bay from Clean Water Act liability. The Court of Appeals reasoned that defendants, Aurora Energy Services, LLC and Alaska Railroad Corp., were not shielded from liability under the Clean Water Act because National Pollutant Discharge Elimination System general permits unambiguously prohibit non-stormwater discharges of coal. The general permit lists eleven categories of authorized non-stormwater discharges, none of which include non-stormwater discharges of coal. Thus, the court concluded that the general permit plainly disallowed defendant’s discharges.