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Spokane, Washington  Est. May 19, 1883

Environmental group triumphs over Port of Tacoma in appeal connected to water pollution

U.S. appellate panel rules against Port of Tacoma in environmental lawsuit.  (TONY OVERMAN/Olympian)
By Becca Most (Tacoma) News Tribune

The Port of Tacoma is responsible for abiding by stormwater pollution-prevention measures across its entire enterprise, a panel of the U.S. Court of Appeals in the Ninth Circuit has ruled.

A lawsuit brought against the Port of Tacoma and two of its tenants by environmental nonprofit Puget Soundkeeper Alliance argued the they violated the Clean Water Act in various respects by not having proper safeguards in place to prevent stormwater pollution.

Puget Soundkeeper Alliance initiated the lawsuit against prior port tenant APM Terminals in 2016 and added the port to its legal action in 2017 when APM Terminals vacated its site and canceled its permit, according to a news release. The nonprofit argued the port, as landlord, has control over its tenants and is liable for pollution violations during and after APM Terminals’ tenancy. It added SSA Terminals to the case when the company took over the facility, the press release said.

A majority opinion released Monday found in favor of Puget Soundkeeper Alliance, reversing a previous Washington State Pollution Hearings Board decision that said Washington State Department of Ecology’s editions of the 2010 and 2015 Industrial Stormwater General Permits didn’t apply to the entire Port of Tacoma terminal. The opinion was written by Judge Eric Miller.

“Because the Terminal was a facility conducting industrial activities, the permits, and the obligations under them, applied to the entire facility, including the Wharf,” Miller’s opinion said. “The Port therefore needed to implement appropriate stormwater controls across the footprint of the Terminal while the 2010 and 2015 ISGPs were in effect.”

The port argued the ISGP’s do not extend coverage to the wharf, and, if they do, that cannot be enforced in a citizen suit under the Clean Water Act.

“We reject both arguments,” Miller wrote in the opinion.

The port petitioned for review in the Washington Supreme Court, and the petition remains pending, the opinion said.

In a written statement to the News Tribune on Wednesday, the port said it was committed to “operating in a sustainable and environmentally responsible manner” and that “environmental leadership is an important part of our mission.”

“While we are still evaluating the Ninth Circuit’s decision, it is important to note that the terminal areas at issue in this decision have been and continue to be managed in compliance with Ecology’s Phase I Municipal Stormwater Permit. That permit is stringent, protective of the marine environment and meets all state and federal requirements including those under the Clean Water Act,” port communication manager Graham Johnson said. “We remain concerned that unnecessary and unfunded additional requirements will greatly impact and potentially decimate our budgets for other environmental programs that have scientifically based and unquestionable environmental benefits and will discourage trade through Washington.”

General manager of Tacoma SSA Terminal operations Wes Anderson said he was unable to comment on the topic Wednesday. Messages left by the News Tribune at corporate SSA Marine were not answered Wednesday and Thursday.

APM Terminals spokesperson Kevin Doell told the News Tribune the case against APM Terminals had been dismissed and the organization had no comment. The News Tribune was not able to immediately verify the dismissal Thursday.

Stronger environmental safeguards

Sean Dixon, the executive director of the Puget Soundkeeper Alliance, said the ruling should “put to rest” the question of whether stormwater permits apply to a narrow portion of a facility or the facility as a whole.

The West Sitcum Terminal is a 137-acre marine-cargo terminal on Commencement Bay operated by the Port of Tacoma and SSA Terminals, LLC. On 12.6 acres of the terminal, commonly referred to as “the Wharf,” five large cranes load and unload container ships. During rainfall, stormwater runs into Puget Sound, carrying with it metals and other pollutants, the court opinion said.

Dixon said Puget Soundkeeper Alliance, which celebrates its 40th birthday this year, partners with people who have eyes on the waterways in town.

“Over the last 20 or so years, we’ve brought over 200 environmental enforcement actions,” he said. “Some of those are from when we’re out on the water ourselves, or on a partner’s patrol vessel, or whether we’re out kayaking when some of our members keeping an eye out for pollution, or even looking at submitted information sent into the state about the discharges going on at sites where levels exceed what they’re allowed to exceed.”

The nonprofit also receives calls to its pollution hot-line number, (800) 42-PUGET.

“What the Clean Water Act actually requires is that every five years when permits are reissued, they need to get better, because the Clean Water Act is aiming at a day when we don’t have violations of pollution, we don’t have exceedances of too much copper or too much zinc,” he said. “We hope that this makes us stop looking backwards or questioning things that we’ve already folded into our management of stormwater, and now start looking at the new and emerging things that we need to wrap our arms around in the future, like 6PPD-quinone.”

Vehicle tires contain 6PPD, a chemical that prevents tires from breaking down. When 6PPD reacts with ozone in the air, it forms 6PPD-quinone, an eco-toxic chemical that has been linked to salmon death as a result of particles washing off roads and into streams and other water bodies, according to the U.S. Environment Protection Agency.

Monday’s “hugely important final decision” applies to all of Washington state, Dixon said.

“The case that we brought against these permittees is open-ended at the moment, but it will follow the rulings that were just made by the Ninth Circuit Court of Appeals,” he said.