Puget Soundkeeper Alliance v. APM Terminals Tacoma, LLC, et al. (November 3, 2020)
On November 3, 2020, the United States District Court in the Western District of Washington issued a ruling that will ultimately affect how port districts and the Department of Ecology (“Ecology”) handle stormwater permitting at certain facilities.
The Clean Water Act prohibits the “discharge of any pollutant from a point source to navigable waters without a permit.” As such, the Environmental Protection Agency (“EPA”) developed the National Pollutant Discharge Elimination System (“NPDES”) program, which has evolved to include a permitting system for stormwater discharges “’associated with industrial activity.’” Ecology has been granted authority by EPA to administer the NPDES program throughout Washington.
At issue in this case was an Industrial Stormwater General Permit (“ISGP”) granted to APM Terminal Tacoma (“APMT”) by Ecology, which in 2017 transitioned from covering APMT to covering the Port of Tacoma (the “Port”). The Port moved for summary judgment arguing that the stormwater discharges from a section of its facilities referred to as the “wharf” were not associated with “industrial activities” as defined by EPA regulation, and were thus not “subject to the federal NPDES program or citizen suit enforcement of the NPDES program.” The ISGP contained a list of covered facilities including “‘[t]ransportation facilities which have vehicle maintenance shops, material handling facilities, equipment cleaning operations, or airport deicing operations…’” However, the ISGP did not contain the limiting language that is included in the Federal regulations governing NPDES stormwater permits which state that permit coverage is for “‘[o]nly those portions of the facility,’” not the facility in its entirety. Ecology argued that, acting under its own authority, it had expanded the effect of the ISGP to “‘appl[y] to all areas of industrial activity at the facility, rather than only those areas where vehicle maintenance, equipment cleaning, or airport deicing occur.’”
As to this first issue, the Court ultimately agreed with the Port and held that Ecology’s expansion on the definitions originally codified by EPA were not allowed because the ISGP itself references the federal definition of “industrial activity” and therefore Ecology may not then expand upon the permit through its own subsequent guidance. By applying the law of contracts, the Court further noted that the plain meaning given by EPA to “industrial activity,” as well as the subsequent limiting language, was clear and unambiguous. Thus, in referencing the EPA definitions in the ISGP – including the permit location limiting language – Ecology is bound by the EPA regulation and cannot use its own residual authority to subsequently alter the permit after it’s been issued.
The second part of the Court’s analysis was in regard to Puget Soundkeeper Alliance’s (“PSA”) reliance on Ecology’s expansion of the EPA regulation as well as PSA’s own interpretation of the EPA regulations. Specifically, PSA relied on the “non-exhaustive list of industrial activities” listed in section (b)(14)’s preamble within the EPA regulation. Specifically, PSA argued that even if the Court found that the ISGP was limited to one portion of the facility, “the Port engages in other industrial activities on the wharf that compel compliance with stormwater management…such as material handling and rail lines for carrying cargo.”
The Court again disagreed and held that PSA’s reliance on Ecology’s broad interpretation of ISGP applicability, along with PSA’s own interpretation of the definitions within the EPA regulations, still did not overcome the “exclusionary language…[which] limits industrial activities to ‘only those portions’ of transportation facilities.”
Finally, it is important to note that the Court’s opinion directly quotes the 2020 version of the ISGP permit, whose language used to define an “industrial activity,” mirrors the permit language which was originally at issue in this case. What this means for the Port is that the Court’s current ruling in regard to the applicability of the ISGP remains effective at least until the ISGP permit expires on December 31, 2024.
If you have questions regarding Stormwater Permitting, please contact Holly Stafford or Sara Frase of our Environmental Practice Group via email at firstname.lastname@example.org or email@example.com, or via telephone at (360) 671-1796.