The Seward Phoenix Log - News of the Eastern Kenai Peninsula since 1966

By Fern Greenbank
LOG Editor 

What's coal got to do with it?

Environmental Protection Agency vs. Alaska Department of Environmental Conservation


In 2009, at the urging of Seward resident and Sierra Club working member Russ Maddox, the environmental group Alaska Community Action on Toxics began a crusade to address coal dust and what they felt was unhealthy air quality at the Seward Coal Loading Facility (SCLF) which is home to the operations of Usibelli Coal. The coal export business is operated by Aurora Energy Services (AES). The facility property is owned by the Alaska Railroad Corporation (ARRC)

After a Department of Environmental Conservation (DEC) study determined the air quality in Seward did not violate any regulatory threshold, a citizen monitoring project was undertaken to measure the amount of coal compounds in the air particulate matter. Members of the Resurrection Bay Conservation Alliance were trained to carry out the study in cooperation with several environmental groups. That project concluded that coal dust compounds were present in the air particulate matter around the coal facility, however it did not violate health standards. The Environmental Protection Agency currently does not regulate coal dust particulate matter in air.

In addition to complaints about air quality, the two environmental groups took issue with coal falling off the conveyor belt into Resurrection Bay at the Seward Coal Loading Facility after Maddox reported seeing the coal fall directly into the bay. The groups filed a “citizen suit” against Aurora Energy Services and Alaska Railroad alleging the fallen coal violated the Clean Water Act and the terms of the facility’s permits issued by Alaska Department of Environmental Conservation (ADEC). It issued a Notice of Intent to Aurora and the railroad and then proceeded to file the “citizen lawsuit.” Since the filing in 2009, the EPA did not intervene with an opposition to the DEC’s interpretation of the Clean Water Act.

The EPA issued the coal facility’s initial permit in 1984. In 1999, when the permit was up for renewal, the EPA gave Aurora Energy Services the option of switching from an individual permit to a general permit. At that time, the EPA expressed a preference for a general permit because it covers categories of industrial business and was less of an “administrative burden” on the EPA. In 2001, the Seward facility was allowed to switch from an individual permit to a general permit, which is less specific to the facility, rather, it lumps similar industries together.

According to court briefs, in 2009 the EPA delegated its authority in Alaska to the Alaska Department of Conservation. Soon after, the DEC renewed the permit originally issued by the EPA. In 2010, the EPA and the DEC inspected the facility to make sure the facility was meeting its water quality standards and permit requirements. That inspection included notation of coal falling from the conveyor system over the bay and the dust generated from the facility. No violations were reported by the EPA or the DEC. In August 2011, again the facility was inspected and again no violations were reported.

In the 2013 citizen suit against Aurora Energy Services and ARRC, there were three types of violations alleged. The plaintiffs argued that AES was in violation of the Clean Water Act when dust is emitted, when coal falls into the bay and when coal dusted snow is plowed into the bay. The lower court dismissed the dust and snow claims and only ruled on the issue of the permit shield provision as it relates to coal falling into the bay.

AES and ARRC did not argue that coal was not falling into the bay. Rather, it argued that it was shielded from liability claims because the matter was covered under their existing permits.

Multiple industries wrote amicus briefs in support of the Alaska Railroad and Aurora Energy. The EPA filed an amicus brief in support of the environmental groups. This placed the environmental regulatory agencies on opposite sides of the courtroom. The EPA made a legal argument against the DEC, the agency it delegated its enforcement authority to, and this has some industries worried that the EPA can step in and support litigation even when the business has been permitted by the DEC and “thought” they were in compliance. Many industries, via the amicus briefs filed in support of the Seward Coal Loading Facility, say they are worried that the EPA is creating a new set of rules that will wreak havoc on current permit holders.

“The outcome of this case may adversely impact the State of Alaska Department of Environmental Conservation’s ability to administer the Alaska Pollutant Discharge System permitting and compliance programs for stormwater and nonstormwater discharges from industrial facilities in the State,” wrote Senior Assistant Attorney General John A. Treptow on behalf of the DEC.

Treptow argued that the EPA’s position in support of the Alaska Community Action on Toxics and the Alaska Chapter of the Sierra Club showed an intent to curtail the protection of the permit shield provision of the Clean Water Act.

The DEC has the discretion on how to permit discharges into water of the United States for the Seward Facility, said Treptow. ADEC can decide whether to authorize discharges under the terms of a General Permit (a permit that covers multiple facilities) or an Individual Permit (a facility specific permit.)

“It is ADEC’s position that the applicable 2008 MSGP (Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activities) for stormwater issued to the Seward Facility does anticipate that coal and coal sediment could reach the waters of the United States and the permit requires the facility to minimize coal and coal sediment generation and to address those issues in the facility’s Stormwater Pollution Prevention Plan,” said Treptow.

Treptow wrote that the plan prepared by AES included coal and coal sediment discharges and, by disclosing this discharge to the permitting authority, those discharged are permitted and then shields the company from liability claimed in lawsuits.

“No permit, other than the 2008 MSGP, was required under the NPDES/APDES program to permit coal discharges from the Seward Facility,” he said.

In other words, the DEC takes responsibility for the permitting process involving the Seward Coal Loading Facility, asserting that AES properly disclosed potential discharge of coal into the bay which then shields the facility from litigation.

Treptow argued that the EPA, the original permitting authority for the coal facility, was aware of the “incidental discharges” of coal from the conveyor belts. In 1987, he said, divers were deployed to conduct a survey to assess the “thickness” of the coal on the deep end of the pier. Divers reported finding coal and this was reported to the EPA.

“In this case, the EPA cannot simply ignore the information it gathered during the 20 plus years it regulated the Seward Facility prior to issuing the MSGP in 2008 and the additional reporting and monitoring requirements it imposed on the facility,” wrote Treptow. “The EPA knew, from at least 1987 on, that coal was falling off the loading conveyor into the waters of the United States. EPA was in a position, for over 20 years, to determine whether this discharge constituted a significant threat to the environment. Despite its knowledge, there is no indication in the record that EPA ever had a problem with what was occurring at the Seward Facility.”

Treptow refers back to a 2009 Notice of Violation and Intent to File Suit under the Federal Water Pollution Control Act related to the Seward facility. When the Sierra Club filed suit, the EPA did not move to intervene. In 2011, the EPA inspected the facility and concluded that it was operating in compliance with its permits.

“The arguments raised by EPA in this appeal are being made, for the first time, years after EPA transferred administration of the MSGP to ADEC,” wrote Treptow. “There is no explanation in the record as to why this has occurred.”

Based on the relationship between the EPA and ADEC in a written memorandum of agreement, Treptow said, the EPA should have expressed concern to ADEC if it felt the agency was not properly enforcing federal regulations rather than waiting two and a half years into a lawsuit and after a 2011 inspection by the EPA that found no violations other than “a small opening in the silt fence under the dock.”

The final portion of the amicus brief provided by ADEC takes issue with the EPA’s proposed changes to the permitting process. According to Treptow, the EPA now wants to change the system so that “unauthorized discharges would not become authorized or shielded by either disclosure to the EPA and/or the state via the Notice of Intent to be covered by the permit or by other means such as the Stormwater Pollution Prevention Plan.”

“In proposing these changes, it is ADEC’s opinion that EPA is rejecting a regulatory framework that has been in place from virtually ‘day one’ that treats permits as establishing limited permission for discharge of identified pollutants and a prohibition on the discharge of unidentified pollutants,” said Treptow.

Businesses need protection from excessive litigation and from regulatory changes during a permit cycle, said multiple national industry associations in briefs filed on behalf of Aurora. If the permit holder is in compliance as determined by the regulatory authority, it should not be subjected to unnecessary risk, said Treptow.

The issue at hand concerns other industries who filed amicus briefs supporting Aurora and the railroad. The supportive briefs represented the American Farm Bureau Federation, American Forest and Paper Association, American Petroleum Institute, Chamber of Commerce of the United States of America, CropLife America, National Association of Homebuilders and Utility Water Act Group. In addition, a brief was filed by the National Mining Association and the Association of American Railroads.

It can be argued, as it has by the Sierra Club and Alaska Community Action on Toxics, that businesses discharging pollutants into navigable waters are liable if the pollutant is not specifically listed on the permit. Current interpretation of the permit shield allows a business to claim protection from liability if the permitting authority is aware of a pollutant and a permit is granted. If, at a later time, an allegation of violation of the Clean Water Act arises, as it did for Aurora Energy Services, the shield provision would be triggered.

In the amicus brief on behalf of the aforementioned industries, attorneys argued that the EPA’s “new” interpretation of the permit shield and the manner in which general permits vs. individual permits are being issued, “threatens the ability of these organizations’ members to provide critical services to the nation.”

The briefs describe the impact a narrow interpretation of the shield provision would have on the nation, from farming operations to forest products to petroleum and natural gas industries that rely on Clean Water Act general permits. Each of these industries engage in business activities that involve air, land and water emissions in some form. The industries say they fear that conducting business will be cost prohibitive, make the United States more reliant on imports, raise prices of hundreds of consumer products, close down hundreds of companies and eliminate American jobs.


Reader Comments

Cincinnatus writes:

Why is always the working man who suffers when rich liberals decide to save the world? The owners will shrug, close the facility and move on, never looking back. But the workers will have their livlihoods taken away. Thanks, Sierra Club. Thanks Russ. No friends of the People.


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