In July, we noted that the Clean Water Act’s permit shield defense would be construed narrowly, applying only where a permittee had clearly disclosed that the relevant pollutant to the agency. This week, in Alaska Community Action on Toxics v. Aurora Energy Services, the 9th Circuit Court of Appeals treated the stormwater general permit in a similar manner, rejecting the defendants’ arguments that periodic discharges of coal from their coal-loading facility were authorized under the stormwater general permit.
To the Court, this was a straightforward, plain meaning interpretation of a regulation (general permits are considered rulemaking):
In Part 220.127.116.11, the General Permit states: “You must eliminate nonstormwater discharges not authorized by an NPDES permit. See Part 1.2.3 for a list of non-stormwater discharges authorized by this permit.” The referenced section (which is actually Part 1.1.3) lists eleven categories of non-stormwater discharge which are “the non-stormwater discharges authorized under this permit.” None of these categories cover defendants’ coal discharge.
The permittees pointed to sections of the general permit that were “superfluous” if the quoted section truly barred all stormwater discharges not listed in Part 1.1.3. However, while the Court recognized this superfluity, it concluded that “our analysis here is controlled by the plain text of Part 18.104.22.168, which prohibits defendants’ discharges.”
The Court also noted that a separate permit shield analysis yields the same result. Since the permit shield only applies where the permittee “complies with the permit’s express terms,” no shield is available.
As has always been the case, the permit shield is valuable, but narrow.