ELR Citation: 41 ELR 20072
No(s). 3:09-cv-00255 (D. Alaska Jan 10, 2011)

A district court held that environmental groups may go forward with their claims that coal-contaminated dust, slurry, water, and snow is being discharged from a coal loading facility into a bay in violation of the CWA. Although the facility has an NPDES permit, the groups argued that the permit narrowly applies to storm water discharges and fails to cover discharges stemming from the facility's conveyor system as well as from wind and snow. The facility argued that the NPDES permit covers the conveyor system discharges, but the permit is a general permit and does not specifically address what discharges it applies to at the facility. As for the wind and snow discharges, the mere fact that the pollutants travel some distance through the air does not defeat CWA liability per se. The court, therefore, denied the facility's motions to dismiss. However, any civil penalties eventually assessed against the facility must be based on actual discharges and not the mere failure to obtain a permit. Lack of a permit is not, in and of itself, a violation absent a discharge of a pollutant.