Alaska Community Action on Tox, et al v. Aurora Energy Services, LLC, et al

Filing

FILED OPINION (JEROME FARRIS, DOROTHY W. NELSON and JACQUELINE H. NGUYEN) REVERSED AND REMANDED. Judge: JF Authoring, FILED AND ENTERED JUDGMENT. [9226405]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALASKA COMMUNITY ACTION ON
TOXICS; ALASKA CHAPTER OF THE
SIERRA CLUB,
Plaintiffs-Appellants,

No. 13-35709
D.C. No.
3:09-cv-00255TMB

v.
AURORA ENERGY SERVICES, LLC;
ALASKA RAILROAD CORPORATION,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted
August 13, 2014—Anchorage, Alaska
Filed September 3, 2014
Before: Jerome Farris, Dorothy W. Nelson,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Farris

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SUMMARY*

Clean Water Act
The panel reversed the district court’s summary judgment
entered in favor of Aurora Energy Services, LLC and Alaska
Railroad Corporation in a citizen suit that challenged,
pursuant to the Clean Water Act, defendants’ non-stormwater
discharges of coal into Resurrection Bay, Alaska.
The panel held that the district court erred in concluding
that the Multi-Sector General Permit for Stormwater
Discharges Associated with Industrial Activity - a general
permit under the Environmental Protection Agency’s
National Pollutant Discharge Elimination System - shielded
the defendants from liability under the Clean Water Act for
their non-stormwater coal discharges. The panel remanded
for further proceedings.

COUNSEL
Brian Litmans (argued), Trustees for Alaska, Anchorage,
Alaska; Aaron Isherwood and Peter M. Morgan, Sierra Club
Environmental Law Program, San Francisco, California, for
Plaintiffs-Appellants.
John C. Martin (argued), Susan M. Mathiascheck, and Joshua
Kaplowitz, Crowell & Moring LLP, Washington, D.C., for
Defendant-Appellee Aurora Energy Services, LLC.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Denise Ashbaugh, Jeffrey Marc Feldman, and Ralph Howard
Palumbo, Summit Law Group PLLC, Seattle, Washington,
for Defendant-Appellee Alaska Railroad Corp.
David S. Gualtieri (argued), Robert G. Dreher, and Aaron P.
Avila, United States Department of Justice, Environmental &
Natural Resources Division, Washington, D.C., for Amicus
Curiae United States of America.
John A. Treptow, Senior Assistant Attorney General, State of
Alaska Office of the Attorney General, Anchorage, Alaska,
for Amicus Curiae State of Alaska.
Jay Christopher Johnson and Kathryn Kusske Floyd, Venable
LLP, Washington, D.C., for Amici Curiae Association of
American Railroads and National Mining Association.
Karma B. Brown and Karen C. Bennett, Hunton & Williams
LLP, Washington, D.C., for Amici Curiae American Farm
Bureau Federation, American Forest and Paper Association,
American Petroleum Institute, Chamber of Commerce of the
United States of America, CropLife America, National
Association of Home Builders, Utility Water Act Group.
Ellen Steen and Danielle D. Quist, Washington, D.C., for
Amicus Curiae American Farm Bureau Federation.
Peter Tolsdorf, Washington, D.C., for Amicus Curiae
American Petroleum Institute.
Rachel Lattimore and Kristin Landis, Washington, D.C., for
Amicus Curiae CropLife America.

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Kristy A.N. Bulleit and James N. Christman, Hunton &
Williams LLP, Washington, D.C., for Amicus Curiae Utility
Water Act Group.
Jan Poling, Washington, D.C., for Amicus Curiae American
Forest & Paper Association.
Rachel L. Brand and Sheldon Gilbert, National Chamber
Litigation Center, Inc., Washington, D.C., for Amicus Curiae
Chamber of Commerce of the United States of America.
Tom Ward, Washington, D.C., for Amicus Curiae National
Association of Home Builders.

OPINION
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.

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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

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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 industrial 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 railcar and transfers it onto ships through a
conveyor system. Allegedly, this system spills coal into the

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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
(“[G]eneral permits are considered to be rulemakings . . . .”).

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“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)).
The plain terms of the General Permit prohibit
defendants’ non-stormwater discharge of coal. In Part
2.1.2.10, the General Permit states: “You must eliminate nonstormwater discharges not authorized by an NPDES permit.
See Part 1.2.3 for a list of non-stormwater discharges
authorized by this permit.” The referenced section (which is
actually Part 1.1.3) lists eleven categories of non-stormwater
discharge which are “the non-stormwater discharges
authorized under this permit.” None of these categories cover
defendants’ coal discharge.
Defendants point to other sections of the General Permit
to argue that the list in Part 1.1.3 was not intended to
circumscribe the universe of authorized non-stormwater
discharges. First, they note that Part 8.A.2.2 authorizes
certain non-stormwater discharges by timber products
facilities beyond those listed in Part 1.1.3. However,
although this shows that Part 1.1.3 does not provide an
exclusive list of permissible non-stormwater discharges by
timber products facilities, it does not disturb our conclusion
with regard to the Seward Facility. An examination of the
permit’s structure shows why.
After establishing general requirements for all covered
facilities, the General Permit sets out, in Part 8, additional
provisions pertaining to specific industrial sectors. The
section cited by defendants, for instance, governs Sector A,

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pertaining to timber products facilities. The Seward Facility
is classified under Sector AD. This sector does not pertain to
any particular industry, but rather is a catchall category for
“facilities designated by the Director as needing a stormwater
permit, and any discharges of stormwater associated with
industrial activity that do not meet the description of an
industrial activity covered by Sectors A-AC.” Unlike
sections governing other sectors, the section governing Sector
AD does not specify additional categories of non-stormwater
discharge that are authorized or prohibited. With the possible
exception of additional monitoring or reporting requirements
that may be imposed, Sector AD facilities are governed only
by the permit’s general provisions.
The authorization in Part 8.A.2.2 is simply one part of the
General Permit’s customization of its requirements for
particular industrial sectors. The list in Part 1.1.3 states the
non-stormwater discharges authorized by the permit’s general
regulatory scheme, and Part 8.A.2.2 supplements this scheme
for timber products facilities. For facilities in Sector AD,
however, non-stormwater discharges are regulated only by
the permit’s general scheme, and for those purposes the list
in Part 1.1.3 is exclusive.
Defendants also point out that several sector-specific
sections (applicable to sectors other than Sector AD)
explicitly prohibit various categories of non-stormwater
discharge, yet these sections would be surplusage if Part
2.1.2.10 already prohibited all non-stormwater discharges not
listed in Part 1.1.3. However, although we generally seek to
avoid constructions of a general permit that render certain of
its provisions superfluous, see Hart v. McLucas, 535 F.2d
516, 519 (9th Cir. 1976), our analysis here is controlled by
the plain text of Part 2.1.2.10, which prohibits defendants’

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discharges. See Bayview, 366 F.3d at 698. If the provision
had simply stated, “You must eliminate non-stormwater
discharges not authorized by an NPDES permit,” one might
have been able to argue that it was ambiguous, leaving
unanswered the question of which discharges the permit
authorizes. However, the provision answers that question in
the next sentence: “See Part 1.[1].3 for a list of nonstormwater discharges authorized by this permit.” Rather
than leaving permittees to guess which discharges are
excepted from the general prohibition, EPA explicitly refers
them to the list in Part 1.1.3. Defendants’ non-stormwater
coal discharges are not on this list, thus they are plainly
prohibited.
We would have reached the same result had we employed
the permit shield analysis that has been applied to individual
permits in decisions such as Piney Run Preservation
Association v. County Commissioners of Carroll County,
Maryland, 268 F.3d 255 (4th Cir. 2001). Under that analysis,
a permittee is shielded from liability under the CWA if it
(1) complies with the permit’s express terms, and
(2) discharges pollutants that were disclosed to and within the
reasonable contemplation of the permitting authority during
the permitting process. Id. at 259. Here, the express terms of
the General Permit prohibit defendants’ non-stormwater coal
discharges, thus defendants would not be shielded from
liability. As our outcome would be the same regardless of
whether Piney Run’s analysis applies to general permits, we
need not decide whether it does.
V.
The district court erred in concluding that the General
Permit shielded defendants from liability for their non-

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stormwater coal discharges. We reverse the grant of
summary judgment to defendants and remand for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.