Ninth Circuit Narrows CWA “Shield” for Non-Stormwater Discharges
On October 31, 2014, the Ninth Circuit declined to rehear Alaska Community Action on Toxics (ACAT) v. Aurora Energy Services, LLC. The Ninth Circuit decided that case on September 3, 2014, holding that the district court erred when it found that the Multi-Sector General Permit (“MSGP”) for Stormwater Discharges Associated with Industrial Activity “shielded” Aurora from liability for non-stormwater coal discharges. The Ninth Circuit remanded the case for the district court to decide whether Aurora actually discharged solid coal.
Under the Clean Water Act (“CWA”), a facility is not liable for discharges that comply with the terms of its National Pollutant Discharge Elimination System (“NPDES”) permit. There are two kinds of NPDES permits. The Ninth Circuit explained in its September 3 decision that “an individual permit authorizes a specific entity to discharge a pollutant in a specific place.” A general permit, on the other hand, “is issued for an entire class of hypothetical dischargers in a given geographical region and is issued pursuant to administrative rulemaking procedures.” Those procedures include a notice-and-comment period. After regulators issue a general permit, a person seeking to operate pursuant to the general permit must submit a notice of intent to discharge pursuant to the permit.
Aurora and its allies argued that the discharges explicitly allowed under the MSGP were not exhaustive, and the permit’s language was broad enough to “shield” Aurora from liability for discharges of unnamed pollutants. In Piney Run Preservation Association v. County Commissioners of Carroll County,MD, the Fourth Circuit held that a CWA discharge permit could shield a permittee from liability for discharges of pollutants not specifically listed in the permit, provided the discharges were “within the reasonable contemplation” of the regulator when it granted the permit. The Fourth Circuit reaffirmed that conclusion in July 2014 when it decided Southern Appalachian Mountain Stewards v. A & G Coal Corp.Aurora asked the Ninth Circuit to extend the Piney Run rationale to general permits, arguing that the court should consider the language of the permittee’s stormwater pollution prevention plan (“SWPPP”) crafted under the MSGP, rather than the language of the MSGP alone.
The Ninth Circuit decided the case for ACAT, accepting the Piney Run “reasonable contemplation” test but concluding that the facility could not satisfy it. The court focused on the fact that the facility’s SWPPP was created after issuance of the general permit. Therefore, the information in the SWPPP could not have been within the reasonable contemplation of the agency at the time it issued the permit. Additionally, the MSGP contained explicit language that prohibited all non-stormwater discharges for this source category. The court further held that stormwater plans do not have the same legal effect as permit terms because they are not promulgated through a notice-and-comment period. Thus, the Ninth Circuit distinguished between general permits and individual permits, which individual permits were at issue in Piney Run, when it applied the Piney Run test. The court concluded that facilities the MSGP covered are liable for discharges of non-stormwater pollutants unless the permit explicitly identified those pollutants. In other words, a permittee is only shielded from liability for releases of pollutants explicitly identified in the permit.
The Fourth Circuit’s standard is ripe for clarification in the context of the scope of any permit shield provided by the use of general permits. Appellate courts have not decided the level of knowledge needed to meet “reasonable contemplation,” or how that standard applies to the general permitting process.
Posted by Ross Woessner
at 11/20/2014 4:36 PM