Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC

• Decision Date: 28 March 2013
• Docket Number: No. 3:09–cv–00255–TMB.,3:09–cv–00255–TMB.
• Citation: 940 F.Supp.2d 1005
• Parties: ALASKA COMMUNITY ACTION ON TOXICS and Alaska Chapter of the Sierra Club, Plaintiffs, v. AURORA ENERGY SERVICES, LLC and Alaska Railroad Corporation, Defendants.
• Court: U.S. District Court — District of Alaska

940 F.Supp.2d 1005

ALASKA COMMUNITY ACTION ON TOXICS and Alaska Chapter of the Sierra Club, Plaintiffs,

v.AURORA ENERGY SERVICES, LLC and Alaska Railroad Corporation, Defendants.

No. 3:09–cv–00255–TMB.

United States District Court, D. Alaska.

March 28, 2013.

Aaron Isherwood, Peter Morgan, Sierra Club, San Francisco, CA, Brian Litmans, Victoria Clark, Trustees for Alaska, Anchorage, AK, for Plaintiffs.

John C. Martin, Susan Mathiascheck, Crowell & Moring LLP, Washington, DC, David J. Mayberry, Kyle W. Parker, Crowell & Moring LLP, Jeffrey M. Feldman, Kevin M. Cuddy, Susan Orlansky, Feldman Orlansky & Sanders, Anchorage, AK, Denise Louise Ashbaugh, Ralph H. Palumbo, Summit Law Group PLLC, Seattle, WA, for Defendants.

ORDER

TIMOTHY M. BURGESS, District Judge.

I. INTRODUCTION

This is an action by two environmental groups—Alaska Community Action on Toxics and the Alaska Chapter of the Sierra Club (“Plaintiffs”)—against the Alaska Railroad Corporation and Aurora Energy Services, LLC (“Defendants”) for violations of the Clean Water Act at the Seward Coal Loading Facility. Plaintiffs and Defendants have filed cross motions for summary judgment on each of Plaintiffs' claims.¹ Each motion was fully briefed. On March 6, 2013, the parties presented oral argument on their motions. For the reasons discussed below, Plaintiffs' motion for summary judgment is DENIED, and Defendants' motion for summary judgment is GRANTED, in part, and DENIED, in part.

Both parties have filed motions to strike certain documents from the opposing parties' summary judgment motion.² These motions are DENIED.

II. BACKGROUND

A. The Clean Water Act

Congress enacted the Clean Water Act (“CWA”) in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” ³ Consistent with this purpose, the CWA prohibits “the discharge of any pollutant by any person” to navigable waters “except in compliance” with other provisions of the CWA, including the National Pollution Discharge Elimination System (“NPDES”) permitting requirements (codified at 33 U.S.C. § 1342).⁴ The NPDES “requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters.” ⁵

The phrase “discharge of any pollutant” is “defined broadly” ⁶ to mean “any addition of any pollutant to navigable waters from any point source.” ⁷ “Pollutant” is defined “to include not only traditional contaminates but also solids such as dredged soil, ... rock, sand, [and] cellar dirt.” ⁸ The term “navigable waters” means “the waters of the United States, including territorial seas.” ⁹ The combined effect of these provisions is that “[t]he CWA prohibits the discharge of any pollutant from a point source into navigable waters of the United States without an NPDES permit.” ¹⁰

The Environmental Protection Agency (“EPA”) is the regulatory authority tasked with administering the NPDES permitting system for each state.¹¹ However, EPA may delegate its permitting authority to individual states, after which state officials have primary responsibility, with EPA oversight, for reviewing and approving NPDES permits.¹² EPA delegated its permitting authority to the State of Alaska in October 2009.¹³ Alaska administers its program through the Alaska Department of Environmental Conservation (“DEC”).¹⁴

B. The Seward Coal Loading Facility

The Seward Coal Loading Facility (“Seward Facility” or “Facility”) is located on the northwest shore of Resurrection Bay in Seward, Alaska.¹⁵ Defendant Alaska Railroad Corporation (“Alaska Railroad”) purchased the Seward Facility in 2003.¹⁶ The Facility has been operated by Defendant Aurora Energy Services (“Aurora Energy”) since 2007.¹⁷ The Facility's purpose is to receive coal by railcar from the Usibelli Coal Mine located near Healy, Alaska, and to transfer that coal onto ships for delivery to out-of-state markets.¹⁸

When a railcar carrying coal arrives at the Facility, the coal is unloaded at the “railcar dumper facility” and then placed on a conveyer system. ¹⁹ The conveyer transports the coal to roughly 1000–foot–long stockpiles for storage or, alternatively, sometimes carries the coal past the stockpiles directly to the ships.²⁰ At the coal stockpiles, the coal is moved from the conveyer to the piles by the “stacker-reclaimer.” ²¹ The stacker-reclaimer both “stacks” coal onto the stockpiles and “reclaims” coal from the stockpiles to place it back onto the conveyer, which then carries the coal over open water to the “ship loader.” ²² The ship loader is a stationary piece of equipment used to discharge coal from the conveyer into the holds of oceangoing bulk carriers.²³

C. The Discharges

Plaintiffs' claims in this lawsuit correspond to the following three ways in which Plaintiffs allege that coal has been, and continues to be, discharged into Resurrection Bay. Plaintiffs assert that: (1) coal falls into the Bay, either directly or as coal dust, during the over-water transfer of coal from the stockpiles to the ship holds; (2) coal dust generated at the stockpiles, and other land-based areas of the Facility, migrate to the Bay as airborne dust; and (3) coal-contaminated snow is intentionally plowed into the Bay and into a pond and wetlands north of the Facility.

1. Coal from the Over–Water Conveyer and Ship Loader

The ship loader is located at the end of a loading dock, approximately 1700 feet from the shore of Resurrection Bay.²⁴ A portion of the conveyer system carries the coal from the stockpiles, over open water, to the ship loader.²⁵ During the process of transferring coal from the stockpiles to the ship holds, coal may unintentionally be discharged into the water in a number of ways. For instance, residual coal, referred to as “carry back,” sometimes falls from the underside of the belt on the return trip.²⁶ Coal may also fall into the Bay, either as dust or as spillage, during the process of loading the coal into a ship's hold.²⁷ Although the Facility has implemented measures to minimize both coal sediment and coal dust from entering the water during this process, Defendants do not claim to have eliminated the discharges completely.

2. Windblown Coal Dust

On windy days, coal from the Facility's land-based activities (rather than coal discharged into the Bay from the Facility's over-water activities) sometimes migrates to the Bay as airborne dust.²⁸ The dust originates from several sources around the Facility, including the stacker-reclaimer, the railcar unloader, and the coal stockpiles.²⁹

According to both Defendants and DEC, the dust emissions are not subject to NPDES permitting requirements.³⁰ Rather, DEC regulates these dust emissions under Alaska's clean air regulations.³¹ The Facility was cited twice, in 2007 and in 2008, for violating the State regulations. ³² As a result, the Facility paid a sizable civil penalty and agreed to implement a variety of measures to control the dust.³³ These control measures have reduced the dust emissions considerably, but have not eliminated the dust entirely.³⁴

3. Coal–Contaminated Snow

Plaintiffs' final claim concerns the Facility's snow removal practices. Plaintiffs rely primarily on the declaration and deposition testimony of Russell Maddox (“Maddox”), a member of both Alaska Toxics and Sierra Club, to support this claim.³⁵ Maddox states that Aurora Energy intentionally plows coal-contaminated snow directly off of the dock into the Bay.³⁶ Plaintiffs also allege that Defendants unintentionally discharge coal-contaminated snow from the loading dock when the snow falls from the sides or through the slats in the dock.³⁷ Finally, Plaintiffs (through Maddox) claim that Defendants plow coal-contaminated snow directly into wetlands and a pond north of the Facility.³⁸ Defendants do not dispute that the wetlands and pond fall within the CWA's definition of navigable waters. However, Defendants do dispute that any of the alleged snow-related discharges actually occur.³⁹

D. The Facility's NPDES Permit History

EPA issued the Facility its original individual NPDES permit in 1984. ⁴⁰ In 1999, when it came time for the Facility to renew the permit, EPA advised the Facility that its discharges could be regulated under either an individual permit like the one it had, or under the NPDES Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activities (“General Permit” or “Permit”).⁴¹ EPA indicated that the “application, issuance, and maintenance of the General Permit” would “require[ ] a lower administrative burden to both EPA and the facility” and that, “since the General Permit [was] already written,” renewal under the General Permit would save EPA from “having to prepare a new individual permit for [the] facility.” ⁴² In 2001, the Seward Facility switched from its individual NPDES permit to the General Permit.⁴³

In 2009, the Facility renewed its General Permit.⁴⁴ As a prerequisite to coverage, the Facility was required to have developed and implemented a Storm Water Pollution Prevention Plan (“Prevention Plan” or “Plan”).⁴⁵ The Prevention Plan implements and is an enforceable requirement of the General Permit.⁴⁶ The Plan documents potential pollutant sources, including materials handling activities such as storage, loading, unloading, transportation, and conveyance of materials.⁴⁷ The Plan also requires that the Facility implement a variety of control measures and good housekeeping measures to prevent pollutants from entering Resurrection Bay.⁴⁸

In early February 2010, EPA and DEC conducted a site inspection of the Seward Facility.⁴⁹ The purpose of the inspection was to “ensure that water quality standards and permit requirements [were] being met.” ⁵⁰ A significant portion of the inspection report focuses on the coal that enters the Bay from the ship loader area and conveyer belt, and the coal dust the Facility generates.⁵¹ No violations of the General Permit, the Prevention Plan, or water quality standards...