9th Cir. Rejects Use of Permit Shield Defense in a Clean Water Act Citizen Suit

On September 4, 2014, the U.S. Court of Appeals for the Ninth Circuit issued a decision rejecting the argument that a Clean Water Act (CWA) “permit shield” required the dismissal of a CWA citizen suit. The case is Alaska Community Action on Toxics, et al. v. Aurora Energy Services, LLC; Alaska Railroad Corporation, which had been argued less than a month before the ruling was made. The defendants own and operate a coal loading facility located on the northwest shore of Resurrection Bay in Seward, Alaska. Since 2001, the facility has been covered by an EPA “multi-sector” General Permit for Stormwater Discharges, and the defendants argued that any spills of coal from the facility into Resurrection Bat was covered by this permit and the “permit shield” provisions of Subdivision (k) of Section 1342 of the CWA (33 U.S.C. § 1342(k)). The lower court agreed with the defendants and granted summary judgment.

However, according to the Court of Appeals, a careful review of the provisions of the permit disclosed that these particular “non-stormwater” discharges were not, in fact, covered by the permit, and the decision of the lower court was reversed, and the case was remanded for further proceedings.

This is the second “permit shield” case to be decided by the Court of Appeals in the past few months. In July, the U.S. Court of Appeals for the Fourth Circuit also rejected the use of the permit shield defense in the case of Southern Appalachian Mountain Stewards, et al., v. A & G Coal Corporation, 2014 WL 3377687 (4th Cir. July 14, 2014), which involved the interpretation of an individual National Pollutant Discharge Elimination System (NPDES) permit and the disclosures the applicant made to the permitting authority. It is evident that the courts are subjecting this defense to an exacting review.

Additional Source: Aurora Energy Decision Deems Discharges Prohibited, Leaves Open Question of Permit Shield Applicability; “Permit Shield” Defense Unavailable When Presence of Pollutant Was Not Disclosed In Permit Application Process