ANCHORAGE — A permit covering storm-water runoff does not apply to coal falling from a conveyor belt into Resurrection Bay at Seward, a federal appeals court ruled Sept. 3.
A three-judge panel of the 9th Circuit Court of Appeals reversed a decision by U.S. District Court Judge Tim Burgess and ruled that coal dropped into the ocean by the Alaska Railroad at its Seward Coal Loading Facility would violate the federal Clean Water Act.
The ruling was made in a lawsuit brought in December 2009 by Alaska Community Action on Toxics and the Alaska chapter of the Sierra Club.
“Hopefully, the district court judge will rule on this quickly, and they will get a permit and make improvements to keep this from happening in the future,” said Russ Maddox, a Sierra Club volunteer and activist, by phone from Seward.
The Alaska Railroad said in a statement that it was reviewing the decision
Maddox called the decision “long-awaited.”
Coal falling into Resurrection Bay came to people’s attention as they became concerned with dust from coal piles stored by the railroad, Maddox said.
He and others began observing railroad operations in the community of 2,700 on the Kenai Peninsula south of Anchorage. Coal was falling during loading operations, and no one at first thought anything about it, Maddox said.
Activists brought it to the attention of the railroad and said it was not allowed elsewhere, Maddox said. “We realized it was absolutely un-permitted, and they disagreed,” he said.
The district court ruled that the railroad’s permit from the Environmental Protection Agency for storm water discharged during industrial activity shielded the railroad and the operator of the coal-loading facility, Aurora Energy Services LLC, from liability.

Appeals court judges disagreed. Coal is not on the list of non-storm-water discharges, such as those used by certain timber-product facilities, that are allowed by the permit, the judges said.

They sent the case back to Burgess for further proceedings.

“The decision made by Judge Burgess at the U.S. District Court level clearly took into account the liability shield afforded by the MSGP that the Ninth Circuit discounted. We will continue to work with our partners at AES and Usibelli Coal Mine toward a reasonable solution,” the railroad’s chief executive officer, Bill O’Leary, said in the statement.