On September 3, 2014, the United States Court of Appeals for the Ninth Circuit issued its opinion in Alaska Community Action on Toxics v. Aurora Energy Services, LLC, holding that the Clean Water Act General Permit for stormwater discharges prohibited the defendants’ releases of coal and reversing the District Court’s grant of summary judgment in favor of Aurora Energy. Although the District Court found that defendants benefited from the so-called “permit shield,” the Ninth Circuit declined to decide the issue, concluding that the discharges in this case would fall outside the permit shield even if it did apply. The question of whether the permit shield defense applies to general permits remains open.
Multi-Sector General Permit
The U.S. Environmental Protection Agency’s Multi-Sector General Permit for stormwater is a National Pollutant Discharge Elimination System (NPDES) permit issued under the Clean Water Act (CWA). In some states, EPA is the CWA permitting authority and its General Permit applies. In delegated states, such as California, the state issues its own permit, typically modeled after EPA’s General Permit. The primary difference between traditional, individual NPDES permits and the General Permit, as well as other types of general permits issued by EPA and the states, is that the latter are not granted to a particular discharger. Instead, a general permit is adopted in a manner similar to a regulation, and dischargers file a Notice of Intent (NOI) electing to be covered by and comply with the permit terms, which are the same for all covered facilities.
The federal and state General Permits prohibit the discharge of contaminated stormwater, and require industrial facilities1 to institute certain controls, called Best Management Practices, to minimize exposure of stormwater to industrial activity. The General Permit, with limited exceptions, also prohibits non-stormwater discharges. Discharges other than stormwater usually must be covered by an individual NPDES permit.
The Piney Run Case and the Permit Shield Defense
The CWA provides that compliance with a NPDES permit constitutes compliance with the CWA2 , and thus offers a “permit shield” against potential CWA violations.
In Piney Run Preservation Association v. County Commissioners of Carroll County,3 the U.S. Court of Appeals for the Fourth Circuit interpreted the CWA’s permit shield to include any discharge that has been adequately disclosed to the permitting authority and that is not expressly prohibited by the permit. In Piney Run, the permit at issue was an individual permit, and the permit shield analysis is typically applied...
