Non-Stormwater Discharges Of Coal Into Alaska Bay Not Shielded From Clean Water Act Liability

The Ninth Circuit held that a Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (a general permit issued under EPA’s National Pollutant Discharge Elimination System (“NPDES”)) does not shield non-stormwater discharges of coal from Clean Water Act liability.  The court reversed the U.S. District Court for the District of Alaska’s decision finding that the general permit allowed the non-stormwater discharges of coal.

An NPDES permit is required for stormwater discharges associated with industrial activity.  This case dealt with a facility where coal is received by railcar and transferred through a conveyor system to ships in Alaska’s Resurrection Bay.  The facility was covered by an NPDES permit authorizing stormwater discharges.  The conveyor system allegedly spilled coal into the bay on occasion.  The Ninth Circuit reviewed the language of the general permit and pointed out that it explicitly stated, “You must eliminate non-stormwater discharges not authorized by this permit.”  The permit then contained a specific list of non-stormwater discharges that were allowable but coal was not contained on that list.  The court concluded that the general permit did not shield the defendants from Clean Water Act liability for the coal discharges in question.