This post is Part 2 of recent court decisions impacting stormwater permit holders. As previously reported, one of the greatest concerns of stormwater dischargers is the potential for third-party enforcement under the Clean Water Act (CWA). While the vast majority of threatened or actual suits are settled out of court, a few have been litigated and resulted in decisions by the courts. These decisions set a precedent for future court cases and provide valuable guidance to permit holders on interpreting the permit and achieving compliance.
In this “Part 2” posting, we report on recent decisions from two separate actions brought by Puget Soundkeeper Alliance (PSA) against Rainier Petroleum (Rainier) at two separate facilities in Seattle. These decisions continued the trend of victories for environmental groups against permitted facilities for non-compliance. The background on each suit and the impact of the decisions to permit holders are presented below.
Puget Soundkeeper Alliance vs. Rainier Petroleum (South Seattle Facility)
PSA sued Rainier for multiple violations of its Industrial Stormwater General Permit (ISGP). Rainier operates a 1.5 acre marine fueling, service, and storage facility located in south Seattle, Washington. Rainier engages in industrial activity, including storage and distribution of lubricating oil. The facility has a storm drainage system made up of four catch basins which tie into an eight inch discharge on the south side of the property, which ultimately drains to the Duwamish Waterway.
Specifically, PSA accused Rainier of exceeding benchmarks for zinc and copper in the stormwater, failing to submit annual reports for 2013 and 2014, failing to monitor discharges from the facility in seventeen quarters from the past six years, failing to monitor discharge from three of the four discharge points at its facility, failing to conduct and document monthly inspections for permit compliance, failing to complete Level 1 Corrective Actions when required, contributing to violations of water quality standards in the Duwamish Waterway, and having several deficiencies in its Stormwater Pollution Prevention Plan (SWPPP). PSA sought a partial summary judgment on the facts in the case. Summary judgment is appropriate if the evidence demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rainier conceded liability as to certain issues. The judge determined that oral arguments were not necessary and granted, in part, PSA’s motion. An important feature of the ruling was the judge’s affirmation that each failure to comply with permit conditions constituted a separate violation of the CWA.
As a result of the ruling, Rainier is now responsible for sampling twice per quarter and updating its SWPPP to comply with the ISGP. Rainier paid a $200,000 “payment in lieu of penalty” that was awarded to the Rose Foundation, Puget Sound Stewardship and Mitigation Fund, to fund habitat restoration and/or water quality improvement projects in Puget Sound.
Puget Soundkeeper Alliance vs. Rainier Petroleum (Harbor Island Facility)
PSA sued Rainier alleging violations of its ISGP and the CWA for its facility at Pier 15 at the north end of Seattle’s Harbor Island. Rainier uses its facility to store lubricating oils and deliver lubricating oils and diesel fuel to marine customers. The facility covers between one and two acres and includes a truck loading rack, a parking area, a tank farm, one half of a pier, and three buildings—a boiler building, a warehouse, and an administrative building. Stormwater from all three buildings’ roofs drains through gutters into Elliot Bay. Rainier’s tank farm contains six 11,750-gallon lubricating oil tanks and one 11,750-gallon oil/water separator tank, is surrounded by a concrete containment berm, and has a pervious gravel floor.
PSA sought summary judgment on several of its claims that Rainier violated Permit conditions. Specifically, PSA argued that no genuine dispute existed about whether Rainier’s tank farm failed to meet storage requirements, Rainier stored buckets of liquid in violation of storage requirements, Rainier failed to monitor discharges from the Pier and the Roofs, Rainier failed to complete and document monthly inspections, Rainier failed to submit annual reports, Rainier failed to take corrective actions after its discharges have contained pollutants above benchmark levels, Rainier’s polluted discharges have contributed to violations of water quality standards, and Rainier’s SWPPP was deficient in several respects. Rainier conceded some of these claims and opposed others.
Rainier moved for summary judgment on several of their defenses. Rainier argued that PSA’s claims related to the tank farm, the pier, and the roofs should be dismissed because PSA failed to provide notice of those claims. Rainier made the same argument with respect to PSA’s allegations that the oil/water separator in the parking lot is inadequate—an issue on which PSA did not seek summary judgment—and that polluted discharges occurred at the facility whenever there was more than 0.1-inch of precipitation. Second, Rainier asked the court to dismiss the claims regarding the tank farm, the pier and the roofs because those areas were outside the coverage area of the ISGP. Rainier maintained that the storage requirement on which PSA relied applied only to buckets and drums, not tank farms. Rainier asserted that the pier and the roofs are not associated with industrial activity and are therefore not subject to the ISGP. In addition, Rainier asked the court to dismiss PSA’s claims related to the tank farm and oil/water separator. Rainier asserted that these claims must fail because (a) PSA had no evidence to support them, (b) the tank farm satisfied all applicable regulatory requirements and permit conditions and was approved by Ecology, and (c) the oil/water separator was adequate and recommended by Ecology for facilities like Rainier’s. PSA opposed Rainier’s motion in its entirety.
The court granted, in large part, PSA’s request for summary judgement. After the ruling, PSA and Rainier entered into a Consent Decree with the Court to settle the case. Under the Consent Decree, Rainier agreed to:
- Comply fully with all conditions of its ISGP permit;
- Install an impervious floor in its tank farm containment area and ensure that the berm surrounding the tank farm provides sufficient containment;
- Store all portable containers of liquid and petroleum product indoors, including containers that are awaiting customer pick-up;
- Relocate cleaning activities that involve wash water or washing solutions to areas of the facility that drain to the sanitary sewer;
- Redirect discharges of stormwater from its boiler building and warehouse roofs to the facility’s below-ground oil/water separator or to the sanitary sewer;
- Implement measures to prevent any stormwater from discharging to Elliott Bay, plug the existing holes in its pier, install curbs, berms, and/or barriers as required to prevent sheet flow of stormwater and otherwise ensure adequate stormwater collection and conveyance infrastructure exists to capture the stormwater and direct it to the sanitary sewer.
- Complete an engineering report and install a Chitosan-enhanced sand filtration system to treat all stormwater runoff;
- Update its SWPPP to reflect the changes to the facility’s stormwater management, including vacuum-assisted sweeping of the paved surfaces a minimum of once each month; inclusion of the Facility’s oil spill response plan, prohibiting the locking of fuel nozzles in the “open” position, and provisions for the annual employee training
- Amend its SWPPP map to include each of the facility’s discharge locations and drainage routes;
- Amend its SWPPP sampling plan to identify and provide for quarterly sampling at each point of discharge to Elliott Bay, and to identify the primary individual (and alternate) responsible for collecting stormwater samples and reporting results;
- Conduct enhanced stormwater sampling by sampling discharges all discharge points during at least two different storm events in the first, second, and fourth quarters of 2016, and first quarter of 2017; and
- Forward all correspondence to and from Ecology related to the ISGP to PSA on a quarterly basis.
Rainier paid $540,000 to settle PSA’s claims under the CWA; up to $260,000 for attorney costs and the remainder to the Rose Foundation, Puget Sound Stewardship and Mitigation Fund, for environmental benefit projects in the Duwamish River and Puget Sound watersheds.
Lessons Learned
The Rainier cases demonstrate the severe ramifications associated with non-compliance:
- The language in permits should be interpreted literally; permit holders would be well served to address uncertainties in requirements by doing more than less, if it can be accomplished reasonably.
- SWPPPs should address all substantive requirements of the associated permit, and should accurately reflect current conditions at the facility.
- SWPPPs should be “living documents” that are continuously updated as facility conditions change. The SWPPP should be used by facility personnel as a roadmap to implementing permit conditions. It should not contain extraneous information which may be used against the permit holder if it is not being implemented.
- Each failure to comply constitutes a separate violation that may be subject to enforcement actions, fines, and penalties. In addition, permit holders that do not prevail in litigation will not only pay to correct deficiencies at their facilities, but will pay to support local environmental projects, as well as the fees of the attorneys and experts that have litigated against them.
- Citizen suits to enforce compliance with the CWA will continue. Recent court decisions favor the environmental advocacy groups, and these rulings provide valuable guidance for permit holders in interpreting permit conditions. Permit holders should read their permits carefully, interpret the permit language with caution, and be diligent in implementing its requirements.
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