-----------------
Utilizing
the authority of the citizen suit provision of the Clean
Water Act, Puget Soundkeeper Alliance has confronted several
significant violators of the Act's provisions.
McNeil
Island Corrections Center sewage treatment plant plagued
by 350 pollution violations
In
January 2005, PSA sent McNeil Island Corrections Center
a 60 day notice of intent to file suit under the Clean Water
Act for over 350 violations of effluent limits for fecal
coliform, pH, biological o x ygen demand, suspended solids
and flow between 2002 and 2004. The sewage treatment plant
which was built in 1971, then upgraded in 1991. In 2003,
the plant was converted to a conventional activated sludge
treatment processes in order to treat increases in flow
and pollution resulting from projected increases in inmate
populations. A water quality testing lab was added to the
facility and staff training completed. As a result of this
new information and no ongoing effluent violations, PSA
will continue monitoring the Center's pollution discharges.
The Puget Soundkeeper Alliance (PSA) was represented by
Rick Poulin of Smith & Lowney.
Sand
and Gravel Permit appealed
On
February 4, 2005 PSA appealed the newly updated Sand and
Gravel General permit which regulates the discharge of stormwater,
process water and mine dewatering water from 928 sand and
gravel operations, rock quarries, and similar mining operations,
including stockpiles of mined materials. The permit also
covers concrete batch and hot mi x asphalt operations.
The
pollutants associated with sand and gravel operations include
pH, turbidity, TSS (Total Suspended Solids), temperature,
oil and TDS (Total Dissolved Solids), which are regulated
by Washington State because of the harmful impact on aquatic
life when discharged to creeks, streams, rivers and Puget
Sound .
PSA
appealed the permit because it failed to comply with the
Clean Water Act, the Washington State Pollution Control
law, and Washington State Department of Ecology regulations.
The Washington Aggregates and Concrete Association also
appealed the permit. PSA is currently in settlement negotiations
and is represented by Richard Smith of Smith & Lowney
in Seattle .
Snohomish
County settlement negotiations continue
In
September 2004 PSA sued Snohomish County , under the Clean
Water Act, for failing to implement the current Stormwater
Management Manual (2005) as required by its 1995 Municipal
Permit. The goal of this lawsuit is to protect water quality
by enforcing the implementation of the state of the art
stormwater management techniques described in the Manual.
PSA is currently in settlement negotiations with the County.
PSA is represented by Richard Smith of Smith & Lowney.
Stormwater
regulation update
The
Department of Ecology has released, since the first of the
year, 5 stormwater permits for review and comment including
the Boatyard General Permit (107 permit holders), Consolidated
Animal Feeding Operations Permit (700 permit holders), Construction
Stormwater General Permit (1,800-2300 permit holders), Municipal
Stormwater Phase I permit (Seattle, Tacoma, King, Snohomish,
Pierce and Clark Counties) and Municipal Stormwater Phase
II permit (85 permit holders). PSA is currently reviewing
the permits for compliance with the Clean Water Act. Stormwater
pollution is the largest source of impaired waters in Puget
Sound .
-----------------
Blake
Island State Park Beach violates pollution permit 320 times
The
Washington State Department of Health has closed much of
the eastern and northern shores of Blake Island to shellfish
harvesting due to pollution.
Since
1998 the Blake Island State Park Sewage Treatment Plant
has violated its Department of Ecology issued pollution
discharge permit 320 times by discharging more fecal coliform,
BOD (biological oxygen demand), suspended solids and chlorine
than allowed by the permit to protect water quality. The
Plant, which is managed by Washington State Parks, has also
failed to submit discharge monitoring reports in a timely
manner, failed to submit discharge monitoring reports for
certain months, and failing to test discharge parameters
as required.
The
475 acre Blake Island State Park is well known for its 5
miles of beaches and scenic view of Mt. Rainier, the Olympic
Mountains and Seattle. The Park, which receives over 200,000
visitors a year, is responsible for collecting and treating
the sewage created on the island from use of its restrooms,
staff residences, marina pump-out and the Tillicum Village
concession. The sewage treatment pipe discharges its effluent
into Puget Sound through a 600 foot pipe that discharges
in 30 feet of water off the beach on the eastern shore with
a mixing zone of 230 feet. A mixing zone is permitted because
the plant can not meet water quality standards at the end
of the pipe.
PSA
is currently in settlement negotiations with the attorney
general's office, which represents Washington State Parks.
PSA is represented by Rick Poulin of Smith & Lowney,
PLLC.
Pollution
Control Hearings Board Stormwater Decision Appealed
Good
stormwater regulations seem to take a long time! PSA and
its co-appellants are now in the third year of an administrative
appeals process that is determining the extent to which
industrial stormwater dischargers must protect water quality.
In June the Pollution Control Hearings Board (PCHB) ruled
favorably on three of our four major issues. PCHB ruled
that the endless compliance schedule, which would have delayed
compliance with water quality standards indefinitely, was
ruled invalid. PCHB also ruled that the standard mixing
zone provisions in the permit, which would allow any discharger
to get a mixing zone if it can't meet water quality standards
at the end of its pipe, without any Ecology determination,
was invalid. Finally, PCHB remanded sections of the permit,
which allowed Ecology to modify the permit without public
participation. The ruling on our fourth issue, monitoring,
was issued in August PCHB remanded three issues related
to stormwater sampling to Ecology. In early September the
Association of Washington Businesses, PSA and its co-appellants
and Ecology appealed the PCHB orders. PSA is currently in
settlement negotiations.
Can
the state legislature pass laws that violate the Clean Water
Act?
PSA
joined a statewide coalition of environmental groups to
urge the Washington State Supreme Court to review and reject
the SB 5787, the so-called "Dirty Fill Bill" that
was pushed by the Port of Seattle and passed in special
session in May 2003. The bill eliminates an important protection
for stormwater running off Sea-Tack Airport that was imposed
by the Governor appointed Pollution Control Hearings Board.
The groups are filing the amicus brief because the "Dirty
Fill Bill" is an impermissible end run around the courts,
violates the separation of powers doctrine and results in
a policy that is contrary to the federal Clean Water Act.
If this bill is allowed to stand, it would set a statewide
precedent that would encourage the state legislature to
create laws that violate the Clean Water Act and other federal
pollution control laws. PSA and the coalition are represented
by William Rodgers.
Three
Clean Water Act Cases settled! $186,000 in penalty money
raised to support clean water!
Todd
Shipyard was notified of PSA's intent to sue under the Clean
Water Act in February 2002 for violations of stormwater
effluent limits including turbidity, suspended solids and
oil and grease. We filed the compliant in April 2002 and
finalized a consent decree in September 2003. The consent
decree requires Todd Shipyard to complete the construction
of and have operational its Contaminated Industrial Stormwater
Collection and Treatment System no later than January 1,
2004. Todd will be collecting, treating and discharge to
the sanitary sewer, stormwater that is falling on 14 acres
of the industrial portion of its site. Todd will also pay
$25,000 in mitigation to RE Sources for Sustainable Communities
to conduct a stormwater discharge research project aimed
at identifying and permitting, unpermitted stormwater dischargers.
PSA was represented by Richard Smith of Smith & Lowney.
PSA
signed a Settlement and Release Agreement with Fisherman's
Bay Sewer District on July 15, 2003. By November 30, 2003
the District will complete the construction and upgrade
projects for its lagoon treatment system and achieve full
compliance with its NPDES permit. Two thousand dollars was
earmarked for facility management and permit compliance
training for the District's operator and $18,000 will be
used to convert one of the wastewater lagoons to a constructed
wetland for tertiary wastewater treatment. We were represented
by Paul Kampmeier of Smith & Lowney
PSA
signed a consent decree with Oly-Rose LLC, which manages
the sewage treatment plant at Rosario Resort on Orcas Island.
At issue were violations of their effluent limits for fecal
coliform, chlorine, and BOD. The consent decree requires
Oly-Rose to pay $90,000 in three installments to the Islands
Oil Spill Association and Friends of the San Juans. It addition,
Oly-Rose will develop and implement a pollution education
program for Rosario Resort Employees and boaters using the
Rosario Marina at a cost of $8,000. Oly-Rose recently violated
its permit by accidentally discharging 28,000 gallons of
untreated, raw sewage into East Sound. We were represented
by Paul Kampmeier of Smith & Lowney.
PSA
also signed a consent decree with JA Jack & Sons, a
limestone processor on the Duwamish River in Seattle for
violations of turbidity limits in their stormwater discharges.
The Duwamish River Clean Up Coalition will receive $35,000
to implement a Duwamish Restoration and Water Quality Project.
Consent
decree monitoring
PSA
is monitoring consent decree compliance with the, City of
Bremerton, City of Ferndale, Fisherman's Bay Sewer District,
City of North Bend Sewage Treatment Plant, City of Snohomish
Sewage Treatment Plant, JA Jack & Sons, Oly-Rose LLC,
Spadoni Brothers, Todd Shipyard, and Warm Beach Christian
Camp and Conference Center.
Stormwater discharges from 95 Urban Cities and Counties
are on the path to regulation
The
Westside Municipal Stormwater Advisory Group, of which PSA
is a member, was formed this past summer in acknowledgement
of the Washington State Legislature's interest in municipal
stormwater discharges during the 2003 Legislative Session.
The Advisory Group, which consists of city and county, business,
environmental, shellfish, agriculture and port representatives,
is working in a facilitated process to frame significant
policy issues related to the development of a permit to
regulate stormwater discharges from municipal separate stormwater
systems. The group met every two weeks between September
and December to provide input on a wide range of water quality
issues to the Department of Ecology, which will report to
the Governor and Legislature in December 2003. The focus
of the debate is on how many urban areas much do to protect
water quality from polluted stormwater.
-------------
Legal
Accomplishment History
The following is a summary of the results of the Alliance's
Clean Water Act enforcement (dates in parentheses indicate
PSA's first legal action).
Sewage
Treatment Plants
Fisherman
Bay Sewer District (2003)
I.
Background
Fisherman
Bay Sewer District operates a municipal wastewater treatment
plant on Lopez Island in the San Juans. This plant was responsible
for ongoing violations of effluent limitations in the Sewer
District's NPDES permit, including biochemical oxygen demand,
fecal coliform, total suspended solids, and pH. The Sewer
District also failed to report violations and properly retain
records related to its discharges.
II.
Legal Action
Based
on information from the Washington State Department of Ecology
(DOE), Puget Soundkeeper Alliance (PSA) sent the Sewer District
a Notice of Intent to File Suit in April 2003, including
in the notice all of the above violations of the Sewer District's
NPDES permit. PSA and the Sewer District entered in to a
Settlement Agreement in July 2003.
III.
Results
By
November 2003, Fisherman Bay Sewer District must complete
construction of several upgrade projects at its treatment
facility, including construction of an anaerobic cell, installation
of baffles in its secondary treatment lagoon, reconfiguring
the piping and aeration system in the secondary lagoon,
and installation of a bypass pipe between the influent source
and the secondary lagoon. The Sewer District must also install
and maintain an additional liner strip over the secondary
lagoon. The Sewer District must reach full compliance with
its NPDES permit by November 2003.
In addition, the Sewer District will spend an additional
$2,000 on training for its facility operator to help prevent
future violations, and will complete the design and construction
of a wetlands for tertiary treatment of wastewater by the
end of 2005, at a cost of approximately $18,000. If the
wetlands project is not completed, the Sewer District will
instead make a payment of $16,000 to ReSources for Sustainable
Communities, funding a Lopez Island Watershed Pledge, which
will assist residents in controlling non-point pollution.
Oly Rose, LLC (2002)
I.
Background
Oly
Rose operates a wastewater treatment facility at Rosario
Resort on Orcas Island in the San Juans. This facility violated
its NPDES discharge limits for fecal coliform, chlorine,
biochemical oxygen demand, and total suspended solids over
100 times from 1998 through 2001. Oly Rose also failed to
properly maintain the treatment facilities at Rosario Resort,
evidenced by disintegrating lagoon liners, missing chlorine
vault lids, and corrosion of valves and pumps. The facility
was also inadequately staffed.
II.
Legal Action
Based
on the numerous violations of Oly Rose's NPDES permit, Puget
Soundkeeper Alliance (PSA) sent a Notice of Intent to File
Suit to Oly Rose in February 2002, and filed suit in federal
court in April 2002. After months of negotiations, the two
parties agreed to a consent decree, still pending in court
as of July 2003.
III.
Results
The
consent decree provides for Oly Rose to take a variety of
actions to address its past violations, and to prevent future
violations of its NPDES permit. Oly Rose will, over the
course of two years, pay $45,000 each to the Islands' Oil
Spill Association (IOSA) and Friends of the San Juans. The
IOSA project will strengthen spill response and prevention
resources in the San Juans, and the Friends of the San Juans
will implement the San Juan County Marine Refuse Project
to remove harmful debris from local beaches and waters of
the San Juan Islands.
Oly Rose will also implement a pollution education and prevention
program for Rosario Resort employees and boaters using Rosario
Marina, and will provide conference facilities for one three-day
environmental conference.
In order to prevent future illegal discharges, Oly Rose
will implement numerous facility improvements. These improvements
will include upgrades to the chlorination system, as well
as upgrades to the various lift stations at the Rosario
facility.
City of Snohomish (2002)
I.
Background
The
City of Snohomish operates its municipal wastewater treatment
under an NPDES permit issued by the Washington State Department
of Ecology (DOE). The City's sewer system is designed to
allow for combined sewer overflows (CSOs). Information from
the City's interactions with DOE demonstrated that the City
had violated its NPDES permit due to discharges of ammonia,
copper, chlorine, pH, and fecal coliform in to the Snohomish
River. The City was also discharging untreated sewer effluent
through unpermitted CSOs and releasing unauthorized discharges
of effluent through its permitted CSOs.
II.
Legal Action
Based
on the information from the City's interactions with DOE,
Puget Soundkeeper Alliance (PSA) filed a Notice of Intent
to File Suit against the City of Snohomish in February 2002,
and filed suit in federal court in April 2002. After long
negotiations, PSA and the City reached a settlement, and
entered into a binding consent decree in May 2003.
III.
Results
The
consent decree orders the City of Snohomish to reach full
compliance with its NPDES permit by June 2008. In the meantime,
the City must study alternatives for reducing its ammonia
and chlorine discharges, complying with the effluent limits
contained in its permit, and reducing the number of combined
sewer overflows from its system. The City must prepare a
plan incorporating these alternatives. The City must also
install backup generators at its pump stations to reduce
discharges during power outages.
The City will create a stormwater pollution prevention education
project to aid businesses in reducing or eliminating stormwater
discharges. The City will also initiate a storm drain stenciling
program. In addition, the City has funded mitigation projects
through the Sustainable Fisheries Foundation and the Stilly-Snohomish
Fisheries Enhancement Task Force.
The City must provide quarterly reports to PSA detailing
the progress and compliance with the requirements of the
consent decree.
City of North Bend (2002)
I.
Background
The
City of North Bend operates a wastewater treatment plant
that discharges in to the South Fork Snoqualmie River. A
review of Washington State Department of Ecology (DOE) records
revealed that the City discharged higher levels of copper,
mercury, silver, zinc, and ammonia than were allowed under
the permit. The City also failed to perform daily tests
for chlorine as required by DOE.
II.
Legal Action
In
February 2002, Puget Soundkeeper Alliance (PSA) filed a
Notice of Intent to File Suit, alleging that the City violated
its NPDES permit requirements. The Notice identified the
heavy metals discharges, testing failures, and reporting
failures.
After
PSA filed suit in federal court, PSA and the City reached
an agreement and entered in to a binding consent decree
in April 2003.
III.
Results
The
consent decree requires the City of North Bend to undertake
four projects to help mitigate the damage caused by its
wastewater discharges and prevent future damage to the South
Fork Snoqualmie River. The City must:
(1) Implement a Groundwater Pollution Reduction Campaign
to educate property owners using septic systems. The Campaign
will last for approximately two years, and will operate
at a cost of $3,000;
(2) Undertake a wetland restoration project at a cost of
$7,500;
(3) Conduct a Storm Drain Stenciling Program to stencil
warning labels on storm drains within its city limits. The
stenciling will be completed by January 2004; and
(4) Work with the PSA to develop an enhanced water quality
standards ordinance designed to reduce discharges of heavy
metals to and from the wastewater treatment plant.
The City must also come in to compliance with the standards
of its NPDES permit. Any future violations will result in
payments by the City to the Washington Toxics Coalition.
Town of La Conner (2000)
I.
Background
The
town of La Conner operates a sewage treatment plant that
was originally constructed in the early 1970's. The treatment
plant receives influent from both the town of La Conner
and the Swinomish Indian Tribal Community Village (the Tribe).
The treatment plant operates under a NPDES permit that contains
effluent limits for the discharge of various pollutants.
From a review of Discharge Monitoring Reports submitted
to the Washington State Department of Ecology (DOE), Puget
Soundkeeper Alliance (PSA) identified numerous violations
of discharge limits and reporting requirements included
in La Conner's permit.
II.
Legal Action
PSA
filed a Notice of Intent to File Suit in April 2000. In
this Notice, PSA specified violations of effluent limits
for Biological Oxygen Demand (BOD), Fecal Coliform (FC),
Total Suspended Solids (TSS), pH, and flow. For example,
in 1998 and 1999 La Conner violated the TSS monthly average
discharge limit for nine months during the period. In addition,
PSA specified violations of the reporting requirements included
in the permit, beginning in 1995 and continuing to the present.
For instance, La Conner is required to monitor for Dissolved
Oxygen (DO) and temperature five times a week, and then
submit the results to the DOE every week. La Conner's reporting
contained significant gaps, including several instances
where no reports were submitted for an entire month or longer.
For example, La Conner submitted no reports for DO and temperature
for November and December 1999. La Conner provided no explanation
for these reporting deficiencies.
III.
Results
In
June 2000, PSA and La Conner entered into a binding settlement
agreement. The agreement recognized La Conner's difficulties
with the Tribe's influent, plant upgrades La Conner had
undertaken, and the expected reissuance of the permit. The
agreement required La Conner to make a good faith effort
to comply with the existing permit and submit a written
compliance report to PSA one year after the issuance of
a new permit. In addition, the agreement required La Conner
to conduct a seminar on water quality issues.
City of Ferndale (1998)
I.
Background
The
City of Ferndale operates under a NPDES permit for the discharge
of treated wastewater from its sewage treatment plant into
the Nooksack River. In 1996, the Washington Department of
Ecology (DOE) modified Ferndale's permit to include limits
on copper and lead discharges based on water quality standards.
Water quality standards were determined by an analysis of
the Nooksack River to quantify background concentrations
of copper and lead. In 1998 Ferndale proposed a modification
of its permitted copper and lead discharge limits alleging
a technical mistake in the analysis. DOE partially accepted
Ferndale's proposal and relaxed the copper and lead limits.
For example, lead limits were increased ten fold and copper
limits were increased significantly. DOE recommended that
Ferndale, in order to comply with even the relaxed limits,
should work diligently with industrial users and other potential
contributors to reduce the sources of copper and lead pollution.
II.
Legal Action
Puget
Soundkeeper Alliance (PSA) had been participating in public
comment regarding Ferndale's permit since 1995. In 1998
PSA challenged the permit modification before the Washington
State Pollution Control Hearings Board (PCHB), arguing that
the permit modification violated the "anti-backsliding"
provisions of the Clean Water Act. In addition, in May 1999,
PSA formally filed suit against Ferndale alleging continued
violation of copper and lead effluent limits under the modified
permit. For example, PSA identified three months when the
average concentration of lead discharge exceeded permit
limits by a factor of five, notwithstanding the increased
limits. Subsequently, PSA and Ferndale entered binding negotiations
in an attempt to address the copper and lead discharges.
III.
Results
In
September 2000, Ferndale and PSA entered in to a binding
consent decree. Under the negotiated agreement, Ferndale
undertook several obligations. The city contributed $5,500
to ReSources' Marine Waters Education Program and made efforts
to include children from the Ferndale School district among
the participants. A storm water detention facility was constructed
in 2002. Ferndale also conducted a two-day pollution prevention
training seminar for Ferndale city employees and interested
citizens.
City of Bremerton (1992)
I. Background
In
heavy rain events, the City of Bremerton's sewer system
combines surface water runoff with untreated sewage water
and then discharges directly into Puget Sound. These events
are termed Combined Sewer Overflows (CSOs) and occur through
several designed outfalls into Sinclair Inlet, Dyes Inlet,
and Port Washington Narrows. Because these outfalls are
a point source for the discharge of wastewater, they are
subject to NPDES permitting requirements.
The
frequency and volume of CSO events resulted in significant
impacts on the receiving water quality. For example, shellfish
beds in the area were closed due to fecal coliform contamination.
The Washington State Department of Health identified Bremerton's
CSO events as the primary cause of the closure.
II. Legal Action
In
August 1992, Puget Soundkeeper Alliance (PSA) filed a Notice
of Intent to File Suit alleging that Bremerton's CSO discharges
were violating NPDES permit requirements. In the face of
uncontroverted evidence that its CSO discharges exceeded
lawful discharge limits, Bremerton entered into a binding
consent decree with PSA. The consent decree included several
obligations on the part of Bremerton that were necessary
to address the CSO problem.
First,
monitoring requirements were included to measure CSOs, which
had only been estimated prior to the consent decree. Bremerton
agreed to install state of the art monitoring equipment
on each outfall by December 31, 1993, that would record
the volume and frequency for each CSO event. After actual
CSO volume was determined, Bremerton agreed not to further
exceed this baseline data. In addition, Bremerton would
analyze water samples from each outfall for the presence
of a list of contaminants of concern. This CSO volume and
water sample data would then be forwarded to the PSA and
Department of Ecology.
Second,
Bremerton agreed to a specified schedule for the completion
of a CSO reduction plan. This plan called for upgrades to
the sewer system to be completed by 2011, and would result
in a 90% reduction of CSO discharges. The consent decree
imposed a duty on the part of Bremerton to diligently seek
all state and federal funding for the completion of the
CSO reduction plan. Under the consent decree, if Bremerton
did not complete any of the sewer upgrades according to
the specified schedule, PSA was entitled to ask the court
for a moratorium on all new sewer connections in the city.
III.
Results
Bremerton's
record of compliance with the consent decree showed repeated
violations that required action by PSA. In 1996, after Bremerton
consistently violated the baseline data for several outfalls,
PSA notified Bremerton that it would seek to impose the
moratorium on all new sewer connections. Subsequent mediation
failed and in 1998, PSA filed a motion in Federal court
to enforce the moratorium.
In
December of 1998, the Court ordered that, in order to avoid
a moratorium, Bremerton must agree to a revised construction
schedule that accelerated the CSO reduction plan. The court
ordered Bremerton and the PSA to enter mediation for the
purpose of agreeing to a revision of the plan. In October
2000, PSA and Bremerton entered in to an amended consent
decree embodying their agreement regarding the revised construction
schedule. Bremerton will complete all remaining CSO projects
by December 31, 2007, and must comply with all monitoring
and reporting requirements contained in the consent decree.
Oil
Refineries
Tesoro
Northwest's Anacortes Refinery (1998)
I.
Background
Tesoro
Northwest operated a refinery in Anacortes under a NPDES
permit that contained technology based effluent limitations
set by the Washington State Department of Ecology (DOE).
In setting these technology based effluent limits, the DOE
had relied solely on EPA regulations that were more than
ten years old. DOE's technology based limits did not consider
the fact that the refinery had achieved a level of pollutant
discharge that was 80% lower than allowable pollutant discharge
limits in DOE's permit. Also, DOE did not conduct an analysis
for dioxins and did not include effluent limits for dioxins
in Tesoro's permit. Dioxin analysis was not conducted despite
the fact that in 1990 the Environmental Protection Agency
(EPA) had first detected dioxins in oil refinery wastewater,
and in 1997 the agency had adopted regulations for dioxin
analysis before the issuance of a NPDES permit. Additionally,
while docked at the facility, oceangoing vessels discharged
ballast water that was not subject to Tesoro's NPDES permit.
The
plant's operation presented several issues. First, the DOE
only required Tesoro to sample for dioxins several years
in the future, regardless of EPA evidence that dioxins were
currently present in wastewater from other oil refineries.
Second, the discharge of a vessel's ballast water was known
to cause the introduction of non-native species into marine
environments. For example, the green crab and zebra mussel
could be introduced to Puget Sound and devastate the native
shellfish population. Finally, in setting technology based
limits in Tesoro's permit, DOE did not consider Tesoro's
prior levels of pollutant discharge that were significantly
below EPA's recommended levels. Changing this DOE practice
was particularly desirable in light of the fact that Tesoro's
permit was the first of five oil refinery permits that were
up for renewal in the near future.
II.
Legal Action
In
1998, Puget Soundkeeper Alliance joined in a coalition of
environmental organizations to challenge DOE's renewal of
a Tesoro's NPDES permit. The legal challenge raised three
major issues: (1) should the DOE be required, as part of
the permitting process, to conduct sampling for dioxins,
and consider effluent limits for dioxin; (2) should the
discharge of a vessel's ballast water while at the refinery
be subject to a NPDES permit; and (3) should the DOE also
consider the refinery's past performance as well as EPA
regulations when setting effluent limits for the refinery's
wastewater?
III.
Results
(1)
Dioxin - The Pollution Control Hearings Board (PCHB) found
that, under the law, DOE was required to conduct testing
for dioxin, and consider the possible adverse health effects
of dioxin in Tesoro's effluent discharge as part of the
permit review process. Therefore, the court ordered DOE
to sample Tesoro's effluent for dioxins, conduct an evaluation
on the possible health effects of any dioxin found, and
include effluent imitations for dioxin if limits are considered
necessary.
(2)
Ballast water - The PCHB found in Tesoro's favor on this
issue and did not require a NPDES permit for ballast water
discharge. Presumably, the PCHB was influenced by Tesoro's
argument that other maritime law, such as Coast Guard rules,
provided sufficient regulation of ballast water discharge.
(3)
DOE permitting - This issue remains under appeal to the
PCHB.
Unocal Tacoma (1996)
I.
Background
From
an examination of Unocal's Daily Monitoring Reports (DMRs)
submitted to the Washington State Department of Ecology
(DOE), Puget Soundkeeper Alliance (PSA) found numerous and
excessive violations of permit requirements related to Unocal's
petroleum storage, blending, and distribution facility in
Tacoma. Unocal had not fully complied with monitoring requirements
and had never included monthly average limits, as required
in the permit, since the permit had been issued. Unocal
had not adopted a stormwater pollution prevention plan or
spill control plan as required by the permit. Largely through
spills and its stormwater discharge system, Unocal was also
violating effluent limits contained in the permit. Violations
of effluent limits included the following pollutants and
amounts:
(1)
Benzene - 7 total violations, 2 violations over ten times
the allowable limits and 1 violation almost twenty times
the allowable limits.
(2) Copper - 5 total violations, 3 violations over three
times the allowable limits.
(3) Zinc - 9 total violations, 4 violations over double
the allowable limits.
(4) Petroleum Hydrocarbons - 4 violations, all over double
the allowable limits with one violation at thirteen times
the allowable limits.
II.
Legal Action
From
these findings, PSA filed a Notice of Intent to File Suit
in February 1996. Negotiation with Unocal resulted in a
binding Consent Decree signed in May 1996. The agreement
included the following obligations on the part of Unocal:
(1)
Compliance with the NPDES permit requirements;
(2) Payment of a $1,000 civil penalty;
(3) Payment of $16,500 to Citizens for a Healthy Bay; and
(4) A new stormwater treatment system equal or superior
to the old system.
III.
Results
Unocal
adopted both a stormwater pollution prevention plan and
a spill control plan as required by the permit. Review of
DMRs by PSA found 33 continuing violations in 1995. With
continuing input from PSA, Unocal implemented construction
of a new wastewater treatment system in 1997.
Shipyard
Operators
Todd
Shipyard (2002)
I.
Background
Todd
Shipyard operates on Harbor Island, and discharges stormwater
in to Elliott Bay and the Duwamish River under a NPDES permit
issued by the Washington State Department of Ecology (DOE).
Todd exceeded effluent limitations in its stormwater permit
for turbidity, total suspended solids, and oil & grease.
Todd also failed to comply with compliance schedule requirements
in its permit, as well as best management practices and
noncompliance notification requirements.
In issuing a draft renewal permit in 2002, DOE did not include
final effluent limitations for Todd's stormwater discharges
of copper and zinc, and created what amounted to a schedule
allowing noncompliance.
II.
Legal Action
In
February 2002, PSA sent Todd Shipyards a Notice of Intent
to File Suit, and filed suit in federal court in April 2002.
Settlement negotiations are ongoing. In June 2002, PSA filed
comments on the draft NPDES permit, and filed an appeal
of Todd's permit.
Marine Industries Northwest's Tacoma Shipyard (1996)
I.
Background
Marine
Industries Northwest (MINW) operated a Tacoma shipyard with
unpaved facilities and no existing storm water treatment
system. A NPDES permit, issued to MINW, allowed the discharge
of storm water but contained effluent limitations for the
discharge of copper, lead, zinc, and Total Suspended Solids
(TSS). In addition, the permit included monthly monitoring
requirements for these pollutants. For a period of three
years prior to December 1995, MINW chronically violated
the effluent limits for each of the named pollutants. In
addition, the reporting requirements contained in the permit
were not followed. For example, in 1995, MINW conducted
sampling and reporting only twice for the year, as opposed
to the monthly requirements included in the permit.
In
December 1995, the Washington State Department of Ecology's
(DOE) response to these violations was to propose a modification
to the NPDES permit that would suspend the effluent limits
and would require MINW to complete an All Known, Available,
and Reasonable Methods of Treatment (AKART) Report by the
end of an 18-month period. Therefore, for this 18-month
period, MINW would not be subject to effluent limits nor
would it be subject to any binding requirements for stormwater
treatment upgrades to its facility. The DOE took this action
despite Commencement Bay's failure to meet state water quality
standards and the presence of a multi-million dollar cleanup
effort underway for the water body.
II.
Legal Action
In
January 1996, Puget Soundkeeper Alliance (PSA) appealed
the permit modification to the Pollution Control and Hearings
Board (PCHB). Most significantly, PSA was concerned with
the DOE proposal to completely suspend the NPDES permit
effluent limitations. This aspect of DOE's proposal would
violate the "anti-backsliding" provision of the
Clean Water Act (CWA). In addition, this proposal would
set a dangerous precedent for all future permit modifications
by the DOE. In addition to the appeal of the permit modifications,
PSA formally filed suit against MINW in April 1996, alleging
CWA violations.
In
June 1996, PSA and MINW reached a settlement agreement that
addressed PSA's primary concerns. Under the settlement agreement,
MINW would undertake an AKART study that would be followed
by the construction of major upgrades to the facility according
to a specified schedule. Any failure on the part of MINW
to meet scheduled completion dates would subject MINW to
a $5,000 per day fine. Also, under the agreement, DOE would
address the anti-backsliding violations by formally reinstating
the effluent requirements. This aspect of the settlement
would prevent DOE's proposed suspension of the effluent
limits from being used as a precedent by future permittees.
III.
Results
In
January 1997, DOE certified the completion of all phases
of the facility upgrades. These upgrades included the paving
of a portion of the site, the installation of a storm water
collection system, and the construction of a water quality
and disposal system.
Duwamish Shipyard (1995)
I.
Background
Duwamish
Shipyard (the Shipyard) was operating under a NPDES permit
issued by the Washington State Department of Ecology (DOE)
for the discharge of wastewater into Puget Sound. The permit
included turbidity limitations and daily maximum discharge
limits of Total Suspended Solids (TSS). From investigation
of Daily Monitoring Reports (DMRs) submitted to DOE, Puget
Soundkeeper Alliance (PSA) identified 35 violations of turbidity
limits and 20 violations of the daily maximum TSS from stormwater
outfalls. The Shipyard had also violated monitoring requirements
in 38 separate instances.
II.
Legal Action
From
the evidence acquired, PSA filed a Notice of Intent to File
Suit in August 1995. In October 1995, PSA and the Shipyard
entered into a binding settlement agreement that included
the following major elements:
(2)
Fully comply with monitoring requirements and fully comply
with effluent limits by April 1, 1996, or face the imposition
of monetary penalties.
(3) Repair graving dock and prevent recirculating river
water contamination.
(4) Implement a facility wide pollution prevention plan.
(5) Provide PSA with all copies of DOE correspondence.
(6) Pay $15,000 to the Green-Duwamish Watershed Alliance.
III.
Results
The
Shipyard substantially complied with the settlement agreement.
Graving dock repairs were completed and there were no further
effluent limit violations from recirculating river water.
A pollution prevention plan was implemented and the full
payment of $15,000 had been received by the Watershed Alliance.
Although some were submitted late, the DOE eventually received
all DMRs. The Shipyard experienced violations of effluent
limits for oil and grease, but provided proof of payment
of the monetary penalties for these violations.
Ballard Marine (1994)
I.
Background
Puget
Soundkeeper Alliance (PSA) volunteer kayakers witnessed
activity at Ballard Marine that aroused suspicion. Waste
material from the scraping, hydroblasting, and painting
of boat hulls was discharged directly into the Ship Canal.
The kayakers took photographs of the activity that led to
further investigation by PSA.
II.
Legal Action and Results
PSA
determined that the shipyard was operating without a required
permit and filed a Notice of Intent to File in November
1994. In March 1995, PSA and Ballard Marine entered into
a binding settlement agreement. Ballard Marine agreed to
cooperate with the Washington State Department of Ecology
(DOE) for the issuance of a discharge permit. Ballard Marine
also agreed to implement a facility wide pollution prevention
plan, and to install a treatment system for wastewater discharge.
Continued monitoring by PSA confirmed full compliance with
the terms of the settlement agreement.
Puget Sound Naval Shipyard (1992)
I.
Background
The
United States Environmental Protection Agency (EPA) had
issued a NPDES permit to the Puget Sound Naval Shipyard
(PSNS) in 1986. That permit authorized the discharge of
limited amounts of pollutants into the Dyes and Sinclair
Inlets, which form part of Puget Sound. Additionally, the
permit required PSNS to install and use monitoring equipment,
sample effluent, and report on a regular basis to the EPA.
Investigation
by the Puget Soundkeeper Alliance (PSA) found violations
of the NPDES permit requirements. From a review of the Daily
Monitoring Reports (DMRs) submitted to the EPA, PSA found
numerous violations by PSNS of effluent limitations for
pollutants. For example, in the period from September 1988
through May 1992, PSA found 840 days of violation of the
numerical discharge limits. The pollutants discharged included
zinc, oil and grease, and various particulates.
PSA
obtained further evidence of spills and other unpermitted
discharges into Puget Sound. The materials discharged included
PCB-contaminated oil, hydrocarbons, chromium, detergent,
paint, untreated sewage, battery acid, dissolved metals
(including nickel, copper, and zinc), and other miscellaneous
pollutants. For instance, in 1990 over 850,000 gallons of
untreated sewage were released into Puget Sound through
unpermitted spills. Pollutants were also being discharged
through seventy-five stormwater discharge points not included
in the permit, and a periodically leaking sewer line.
In
addition, under the 1986 NPDES permit, PSNS was required
to complete and implement a Best Management Practices (BMP)
plan. This plan would serve to prevent and minimize the
generation and release of pollutants to waters of the United
States. As of 1992, PSNS had failed to complete and implement
a BMP plan.
II.
Legal Action
From
the evidence acquired, PSA filed suit under the Clean Water
Act in November 1992. Through negotiations with PSNS, the
PSA arrived at a binding consent decree in December 1994.
Puget Sound Naval Shipyard's primary obligations under the
consent decree were as follows:
(1)
Maintain substantial compliance with the NPDES limits for
discharge of oil and grease at three problematic outfalls.
Substantial compliance was defined as no more than two violations
per year of any numerical limit.
(2) Complete repairs to the leaking sewer line and further
renovations to the entire sewer system leading from the
piers and dry-docks by September 30, 1996. Provide PSA with
biannual reports on these repairs and renovations.
(3) Monitor pollutant discharge from stormwater discharges.
(4) Complete a BMP and train all personnel in its use within
two years.
(5) Provide PSA with copies of all DMRs, spill notifications,
and regulatory inspections sent to EPA.
(6) Reimburse PSA for the costs of litigation.
III.
Results
In
January 1997, PSA sent PSNS a letter acknowledging the completion
of two years of monitoring and summarizing PSA's final review
of PSNS's water quality improvements. The final review found
that PSNS had maintained substantial compliance with oil
and grease limits per the consent decree. All sewer line
repairs, including additional voluntary upgrades, were completed
five months ahead of schedule. Stormwater discharge monitoring
had improved substantially, but did not fully meet the requirements
of the consent decree and would continue to be monitored
by PSA. PSA found that, subsequent to the adoption of a
BMP plan, both the frequency and amount of spills had declined
dramatically. For example, PSNS reduced the overall number
of spills by 60%.
Other
Violators
Spadoni
Brothers (2002)
I. Background
Spadoni
Brothers operated a mining pit facility at Pine Hill, near
Port Orchard. Spadoni's NPDES stormwater permit contained
monitoring and reporting requirements, and Spadoni failed
to comply with these requirements. Spadoni also failed to
comply with noncompliance notification and records retention
requirements.
II. Legal Action
Based
on information from Department of Ecology files on the Pine
Hill facility, PSA sent Spadoni Brothers a Notice of Intent
to Sue in February 2002. After months of negotiations, PSA
and Spadoni Brothers entered in to a settlement agreement
in September 2002.
III. Results
As
part of the settlement agreement, Spadoni Brothers contributed
$5,000 to Citizens for a Healthy Bay to help fund the "Graffiti
Gig Harbor Green" stormwater drain stenciling project.
As of November 2002, Spadoni Brothers stopped mining activity
at the Pine Hill facility.
JA Jack & Sons (2002)
I. Background
JA
Jack & Sons operates a limestone processing facility
under an NPDES permit, discharging in to the King County
storm sewer system and the Duwamish River. Stormwater discharges
from the facility violated the NPDES permit limits for turbidity,
and JA Jack & Sons failed to comply with monitoring
requirements in the permit. The stormwater pollution prevention
plan (SWPPP) prepared by JA Jack & Sons under the permit
was inadequate.
II. Legal Action
Based
on information from Department of Ecology records, PSA sent
JA Jack & Sons a Notice of Intent to Sue under the Clean
Water Act in February 2002, and filed suit in federal court
in April 2002.
III. Results
Ongoing
settlement negotiations.
Georgia Pacific Corporation's Bellingham Pulp Mill (1997)
I.
Background
Georgia
Pacific Corporation had operated a pulp mill in Bellingham
since 1963. This mill produced bleached pulp that was sold
as market pulp and processed into tissue paper. Additionally
Georgia Pacific manufactured chlorine at the site, using
the mercury cell process. While some of the chlorine was
used on-site in the bleaching process, the majority was
shipped by rail off-site.
In
January 1996, the Washington State Department of Ecology
(DOE) issued an order to Georgia Pacific in an attempt to
address excessive mercury discharges by the company in violation
of its NPDES permit. The order directed Georgia Pacific
to conduct a thorough study of its mercury sampling apparatus
and evaluate all potentially feasible source control alternatives.
Results of the study were required to be submitted to the
DOE within ninety days. Georgia Pacific never fully complied
with this order.
II.
Legal Action
Puget
Soundkeeper Alliance (PSA) obtained evidence of the highly
elevated levels of mercury being discharged into Puget Sound
in violation of the Clean Water Act. In July 1997 PSA filed
a Notice of Intent to File Suit. PSA alleged a history of
non-compliance with effluent limits and reporting requirements
contained in Georgia Pacific's NPDES permit. Specifically,
PSA alleged 28 separate violations of both the daily maximum
and monthly average limits for discharge of mercury from
1995 to 1998.
These
alleged violations included two months where the monthly
average was more than eight times the allowable limit and
one month where the monthly average exceeded the allowable
limits for mercury by a factor of twenty. Georgia Pacific
Corporation allegedly had also failed to fully comply with
mercury discharge monitoring requirements contained in its
NPDES permit for the preceding three years.
PSA
formally filed a complaint in the matter in November 1997.
PSA and Georgia Pacific reached a settlement agreement in
October 1998. The agreement required Georgia Pacific to
fully comply with the January 1996 DOE order. Additionally,
Georgia Pacific would pay a lump sum of $55,000 to PSA to
fund environmental improvement projects and settle attorney's
fees.
III.
Results
The
settlement agreement was subsequently amended in August
1999. Under the revised agreement, Georgia Pacific would
not be required to complete the study of mercury in exchange
for an additional payment by Georgia Pacific of $5,000 and
written confirmation of Georgia Pacific's intent to close
the chlorine manufacturing plant by December 31, 1999. Georgia
Pacific then closed the chlorine manufacturing facility.
Warm Beach Christian Camp and Conference Center (2000)
I. Background
PSA
filed a Notice of Intent to Sue in April 2000 for violations
of its NPDES permit including exceeding effluent limitations
for BOD and TSS and monitoring and reporting requirements.
II. Legal Action
A
Notice of Intent to Sue was delivered to Warm Beach in April
2000. A settlement agreement was completed in September
2000.
III. Results
The
settlement agreement included compliance with effluent limitations
by June 1, 2001 and TSS and BOD by August 1, 2002. The settlement
also included WBCC hosting a Spartina workshop, local septic
system workshop and the donation of conference facilities
for two three-day environmental conferences. WBCC built
a secondary treatment facility that was completed in 2003.
Warm Beach Christian Campground in Stanwood (1994)
I.
Background
Warm
Beach Christian Campground (WBCC) discharged wastewater
under a NPDES permit that included effluent limits on Biological
Oxygen Demand (BOD), Total Suspended Solids (TSS), and Fecal
Coliform (FC). From an analysis of Daily Monitoring Reports
(DMRs) submitted to the Washington State Department of Ecology
(DOE), Puget Soundkeeper Alliance (PSA) identified numerous
violations of the effluent limits and reporting requirements
included in the NPDES since January 1990. Specifically,
WBCC committed 116 violations of monthly and weekly maximum
averages for the discharge of BOD, TSS, and FC. In addition,
PSA identified 27 instances of late or missing DMRs required
to be submitted to the DOE.
II.
Legal Action
In
October 1994, PSA filed suit against WBCC under the citizen
suit provision of the Clean Water Act seeking an injunction
against further violations and civil penalties. PSA and
WBCC arrived at a settlement agreement in July 1995. WBCC
agreed to undertake significant upgrades to its sewage treatment
lagoon including rehabilitation of the lagoon dike, installation
of a lagoon baffle, and the construction of fencing around
the lagoon. In addition, WBCC agreed to pay monetary penalties
for each ongoing violation, and contribute $5,000 to the
Stillaguamish/Snohomish Fisheries Enhancement Task Force
(Fisheries Enhancement). Under the agreement, WBCC would
comply with discharge monitoring requirements and provide
copies to PSA.
III.
Results
Subsequent
to the settlement agreement, PSA continued to monitor WBCC's
compliance. WBCC provided proof of payment of $5,000 to
Fisheries Enhancement. All lagoon upgrades had been fully
completed and documented by January 1996. In addition, WBCC
had complied fully with all DMR reporting requirements.
Cadman Cement in Seattle (1994)
I.
Background
From
examination of Washington State Department of Ecology (DOE)
records, Puget Soundkeeper Alliance (PSA) obtained evidence
that Cadman Cement was discharging stormwater in violation
of its NPDES permit. PSA identified 154 violations of turbidity
limits in excess of 100%, violations of Total Suspended
Solids (TSS) limits, and 31 instances of late or missing
reports.
II.
Legal Action
From
the evidence acquired, PSA filed a Notice of Intent to File
Suit in June 1994.
PSA and Cadman Cement arrived at a binding consent decree
in May 1995. The agreement obligated Cadman Cement to pay
a $1,500 civil penalty, pay $28,500 to local environmental
organizations, and spend $100,000 on environmental improvements
at the facility. Additionally, Cadman would implement technology
improvements specified in their NPDES permit.
III.
Results
Monitoring
by PSA confirmed the payment of $1,500 as a civil penalty
and the contribution of $28,500 to local environmental organizations.
Cadman also provided PSA with confirmation of a $100,000
expenditure to upgrade the facility, as well as plans to
spend an additional $240,000 for further improvements. Although
Cadman did experience a period of further violations, by
1997 the company had fully implemented a stormwater retention
and recycling program that largely eliminated discharges.
State
Agency
Department
of Ecology (2001)
I.
Background
The
Washington State Department of Ecology (DOE) reissued two
general NPDES permits for municipal and industrial stormwater
discharges. These are major permitting actions, as these
two permits authorize stormwater discharges from over 2,000
facilities and sites across Washington. The permits were
reissued virtually without change from the last version,
prepared in 1995.
The
two permits do no adequately protect water quality. Neither
specifically prohibits discharges that cause or contribute
to violations of water quality standards, as both the Clean
Water Act and state pollution laws require. The permits
fail to include, among other factors: numeric effluent limitations
or effluent sampling and analysis requirements, effective
monitoring requirements, significant compliance schedules,
mandatory application of AKART (all known, available, and
reasonable methods of pollution control).
Challenging
these permits is important because DOE must hold the many
facilities the permits regulate to adequate and enforceable
pollution control standards to minimize deleterious environmental
impacts. Stormwater discharges are widely recognized as
major contributors to water quality degradation in Washington.
II.
Legal Action
After
submitting comments on the permits' deficiencies to DOE,
a coalition of environmental groups (Puget Soundkeeper Alliance,
Resources for Sustainable Communities, Waste Action Project,
Washington Public Employees for Environmental Responsibility,
and Citizens for a Healthy Bay) appealed these two permits
to the Pollution Control Hearings Board (PCHB).
III.
Results
Ongoing.
