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 2.1.2.10, 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
