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

United States District Court, D. Alaska

March 28, 2013

ALASKA COMMUNITY ACTION ON TOXICS and ALASKA CHAPTER OF THE SIERRA CLUB, Plaintiffs,
v.
AURORA ENERGY SERVICES, LLC and ALASKA RAILROAD CORPORATION, Defendants

Page 1006

For Alaska Community Action On Toxics, Alaska Chapter of the Sierra Club, Plaintiffs: Aaron Isherwood, Peter Morgan, Sierra Club, LEAD ATTORNEYS, PRO HAC VICE, San Francisco, CA; Brian Litmans, Victoria Clark, LEAD ATTORNEYS, Trustees for Alaska, Anchorage, AK.

For Aurora Energy Services, LLC, Defendant: John C. Martin, LEAD ATTORNEY, Crowell & Moring LLP (DC), Washington, DC; Susan Mathiascheck, LEAD ATTORNEY, PRO HAC VICE, Crowell & Moring LLP (DC), Washington, DC; David J. Mayberry, Kyle W. Parker, Crowell & Moring LLP, Anchorage, AK; Jeffrey M. Feldman, Feldman Orlansky & Sanders, Anchorage, AK.

For Alaska Railroad Corporation, Defendant: Denise Louise Ashbaugh, LEAD ATTORNEY, Summit Law Group PLLC, Seattle, WA; Jeffrey M. Feldman, LEAD ATTORNEY, Kevin M. Cuddy, Susan Orlansky, Feldman Orlansky & Sanders, Anchorage, AK; Ralph H. Palumbo, LEAD ATTORNEY, PRO HAC VICE, Summit Law Group PLLC, Seattle, WA; David J. Mayberry, Crowell & Moring LLP, Anchorage, AK.

For National Mining Association, Amicus: Katherine E. Demarest, Dorsey & Whitney, LLC, Anchorage, AK.

For United States Department of Justice, Amicus: David S. Gualtieri, U.S. Department of Justice, ENRD, Law and Policy Section, Washington, DC.

OPINION

TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE.

Page 1007

ORDER

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

Page 1008

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 rotection 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 ...


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