A federal appeals court has overturned a lower court decision in a Clean Water Act case. According to attorneys for the Sierra Club, the Ninth Circuit Court of Appeals, meeting in Anchorage in August, has ruled that Aurora Energy Services and the Alaska Railroad Corporation are in violation of the Act by dumping coal from their Seward Coal Export Facility into Resurrection Bay.
Wednesday’s ruling reverses an earlier court decision in which the lower federal district court said that the facility’s stormwater permit protected tAurora and the railroad from liability for the pollution. This latest decision finds that the terms of the permit prohibit dumping coal into the Bay. The Ninth Circuit has sent the case back to federal district court.
Vicki Clark, an attorney with the Trustees For Alaska, represented the plaintiffs, the Sierra Club and Alaska Community Action on Toxics.
“Well the judge would get the case back and then decide if there is a discharge of pollutants that’s occurring to the waters of the United States, then a permit would have to be obtained. So that will be the question before the district court. The court was clear that the terms of the stormwater permit that they have do not cover them, and so they cannot be shielded from having to get a proper permit under the Clean Water Act for these discharges.”
Tim Sullivan, with Alaska Railroad External Affairs, said in an email Wednesday:
“The Alaska Railroad Corporation is reviewing the September 3 ruling from a panel of the Ninth Circuit Court of Appeals regarding alleged violations of the Clean Water Act at the Seward coal terminal…… That panel reversed a decision of U.S. District Court Judge Burgess finding that the Multi-Sector General Permit (MSGP) under which the Seward Coal Loading Facility has been operating shields ARRC and Alaska Energy Services from liability.
Despite this ruling, ARRC and AES have not been found liable for any violations of the Clean Water Act. Notably, this ruling represents a small portion of a much larger lawsuit, all of which was dismissed by the U.S. District Court and most of which was not appealed by the plaintiffs.