The Ninth Circuit Court of Appeals sided with plaintiffs in a ruling on September 3, in which the court rejected the defendant’s claim that the coal facility’s state – issued stormwater permit protects it from pollution liability. The appeals court has sent the matter back to federal district court.
Since then, the coal facility, which is owned by the Alaska Railroad and operated by Aurora Energy Services, has ceased operations, to avoid risk of violating the Clean Water Act., until the district court makes a decision.
Although loading coal has ceased, shipping coal has not. Tim Sullivan, spokesman for the Alaska Railroad in Anchorage, says shipments by train from Healy to Seward are on schedule.
“We are the transporter. We move the coal to get it down into Seward.” Sullivan says. “We are continuing to move coal. We have trains going down to Seward twice this week, and we will continue to move coal into the facility down there. “
Sullivan says two ships are on enroute now to pick up the coal in Seward. But now there is no way to load the coal onto those ships.
Lorali Simon, spokeswoman for AES, says the company is working with the state Department of Environmental Conservation on a compliance order, which could allow AES to resume loading.
Senator Mark Begich has urged the state DEC to issue a compliance order, if additional conservation measures are met. And Begich has asked Governor Sean Parnell to intervene on behalf of AES. Governor Parnell has sent a letter back to Begich, saying that DEC is working on the compliance order, contingent on Environmental Protection Agency approval.
The EPA has oversight over permits, although permitting authority is delegated to the Alaska DEC. Begich has also contacted the EPA on the issue.
The pollution charge is one aspect of a lawsuit, filed by the Sierra Club and Alaska Community Action on Toxics. It charges that the coal loading facility has dumped lumps of coal into Resurrection Bay, in violation of the Clean Water Act. The US District Court ruled against the plaintiffs, who then appealed the decision. Three judges of the Ninth Circuit met in Anchorage in August, and overturned the district court ruling on that aspect of the case.
The Alaska Railroad has not been found liable for any Clean Water Act violations.