US Ninth Circuit Court of Appeals Rules in Favor of Plaintiffs Against Railroad at Seward Coal Loading Facility

By Rick Smeriglio for SCN –

A coal ship and coal loading system in Resurrection Bay. Photo by R. Smeriglio

A coal ship and coal loading system in Resurrection Bay. Photo by R. Smeriglio

The storm-water discharge permit issued to Alaska Railroad Corporation (ARRC) in 2001 for its coal loading facility in Seward does not allow discharge or spillage of coal into Resurrection Bay, said a three-judge panel of the Ninth Circuit Court on September 3, 2014. Back in 2009, Alaska Chapter of the Sierra Club and Alaska Community Action on Toxics sued ARRC and the operator of the coal loading facility, Aurora Energy Services (AES) for violating the Clean Water Act. Plaintiffs argued that ARRC and Aurora had an EPA, multi-sector general permit for storm-water discharges which did not allow solid coal discharge into the bay. The Court agreed, thereby reversing a 2013 US District Court ruling in favor of ARRC and Aurora. Judge Jerome Farris wrote the recent opinion. Whether or not the general permit allowed solid discharges and thereby “shielded” the permittee from liability for such actions, constituted the only issue argued before the Court in this case. Trustees for Alaska, a non-profit law firm, and Sierra Club Environmental Law Program, another non-profit, represented the plaintiffs.

Vicki Clark, Executive Director of Trustees for Alaska said that over the last 10 years of operations at the coal loading facility, ownership has changed and problems have arisen with coal dust and coal debris getting into Resurrection Bay. She said that the defendants (ARRC and AES) felt that their general permit under the National Pollution Discharge Elimination System covered them for everything.

Clark said, “We gave them their 60-day notice under the Clean Water Act to get an individual permit. It’s not disputed that coal enters Resurrection Bay.”

Mike Hanson, General Manager of Aurora Energy Services said, “I can’t comment directly. We’re disappointed with the Ninth Circuit decision. We’re looking into options for moving forward.”

Hanson would not say whether options included appealing to the whole, 11-judge Ninth Circuit Court en banc or accepting the decision of its 3-judge panel. He said that the facility would have normal operations today, Thursday the 4.

ARRC Manager External Affairs Timothy M. Sullivan Jr. also could not comment directly about the ruling. He did say over the telephone that ARRC legal staff had the ruling under review to determine what it means. He also mentioned that Usibelli Coal Mine (shipper of the coal) had the ruling under review as well, although the suit does not name Usibelli as a defendant.



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In a statement released via e-mail, ARRC Chief Executive Officer Bill O’Leary said, “This was a surprising decision by the Ninth Circuit Court … We will continue to work with our partners at AES and Usibelli Coal Mine toward a reasonable solution.”

In its released statement, ARRC referred to “alleged” violations of the Clean Water Act and stated that the ruling did not find ARRC or AES liable for any violations. The statement said that the ruling represented only part of a larger suit, most of which the lower, US District Court had previously dismissed.

Pam Miller, Executive Director of the plaintiff Alaska Community Action on Toxics, said of the ruling, “We’re very pleased. It’s a good day for the people of Seward. It’s a good day for the fish and the water. It [the Court ruling] has been a long time coming. It’s important to hold the railroad accountable.”

While referencing her organization’s recently released report on coal dust in Seward, Miller said, “If the railroad adopts some of the controls on coal dust called for in the report, that would go a long way toward reducing toxins getting into the water.”

Spokesperson for the plaintiff Sierra Club, Meg Matthews, did not wish to discuss the case citing its ongoing status. Regardless of whether ARRC or AES appeals the decision, the case remains in court.

The US Ninth Circuit Court of Appeals remanded the case back to US District Court. At least twelve interested, but not directly involved parties submitted amicus curiae (friend of the court) briefs in the case. Industry and trade groups submitted most of the briefs. EPA also submitted a brief. Vicki Clark of Trustees for Alaska thought it likely that ARRC and AES would have to get a permit to discharge coal into Resurrection Bay. Although the federal EPA issued the general permit under the Clean Water Act, the state of Alaska now has primacy for enforcement of that law. A permit now would have to come from the Alaska Department of Environmental Conservation with EPA oversight. Clark speculated that the new permit could have stipulations that reduced the amount of coal entering the bay.

 

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