Supreme Court won’t hear Alaska ‘permit shield’ case

By Jeremy P. Jacobs | 06/08/2015 01:09 PM EDT

The Supreme Court today declined to review whether a Clean Water Act permit shielded a coal depot from liability for discharges into an Alaska bay, handing a win to environmental groups.

Aurora Energy Services LLC and the Alaska Railroad Corp. asked the high court to review a federal appeals court ruling that said their general permit did not cover non-stormwater discharges of coal debris into Resurrection Bay in southern Alaska.

The companies own and operate a facility on the bay where coal is loaded from rail cars onto ships using a conveyor system.


Alaska Community Action on Toxics and the Sierra Club’s Alaska chapter said the operations cause coal to drift into the bay and sued the companies in federal court.

The companies argued that their activities were covered by their general National Pollutant Discharge Elimination System, or NPDES, permit. That permit, they contended, shielded them from the lawsuit.

Last September, the San Francisco-based 9th U.S. Circuit Court of Appeals disagreed. The court ruled that the "plain terms of the General Permit prohibit defendants’ non-stormwater discharge of coal."

NPDES general permits are issued through the administrative process and apply to an entire class of hypothetical dischargers in a given geographic region. Aurora Energy had obtained one that was issued in 1995, then reissued in 2000 and 2008.

The permit shield issue has long divided industry groups and environmentalists. Lawsuits on the issue have led to divided opinions from various federal appeals courts in cases involving a variety of scenarios.

In January, the 6th Circuit in Cincinnati ruled that a mining company could release the chemical element selenium because its NPDES permit did not expressly prohibit it (Greenwire, Jan. 28).

But last July, the 4th Circuit in Richmond, Va., ruled against a coal company in a similar case on selenium (E&ENews PM, July 11, 2014).

Environmentalists are pursuing similar cases to the Alaska one involving coal dust in Washington and Louisiana (E&ENews PM, March 12, 2014).