Erika Spanton*
The United States District Court for the Western District of Washington and Washington Pollution Control Hearings Board recently ruled that in the context of transportation facilities, the scope of Washington’s former 2015 and current 2020 Industrial Stormwater General Permit (ISGP) are limited to only the portions of the facility involved in specified auxiliary operations, not the entire transportation facility.
The decisions are a rejection of Ecology’s position and an earlier Western District of Washington ruling. The ISGP’s clarified scope under these recent decisions can be significant for many transportations facilities, resulting in modified regulated areas and lower compliance costs.
APM Terminals Tacoma Decision
On a motion for summary judgment, the United States District Court for the Western District of Washington in Puget Soundkeeper Alliance v. APM Terminals Tacoma, LLC, No. 3:17-cv-055016 BHS, 2020 WL 6445825, 2020 U.S. Dist. LEXIS 205576 (W.D. Wash. Nov. 3, 2020) ruled that the scope of Washington’s 2020 ISGP in the context of transportation facilities is limited to stormwater discharges from “[o]nly those portions of the facility that are either involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, airport deicing operations, or which are otherwise” specifically identified under federal regulations as “associated with industrial activity,” not the entire transportation facility.[1]
In 2017, Puget Soundkeeper Alliance (PSA) brought a citizen suit under the Clean Water Act[2] (CWA) against the Port of Tacoma (the Port), among other parties. Under its third amended complaint, PSA alleged that the Port was in violation of the 2015 ISGP and a related Agreed Order with the Department of Ecology (Ecology). Some of PSA’s specific claims centered on whether stormwater discharges from the wharf portion of the property were regulated by the ISGP. The Port moved for summary judgment, arguing that stormwater discharges from the wharf were not associated with industrial activities as defined under the 2015 ISGP and therefore were outside the scope of regulated stormwater discharges.
Section 301 of the CWA generally prohibits the discharge of a pollutant from a point source to a water of the United States without a National Pollutant Discharge Elimination System (NPDES) permit (or in the case of dredged or fill material a Section 404 permit).[3] Despite section 301’s broad prohibition, federal CWA regulations only require stormwater discharges associated with specific categories of industrial activity set forth at 40 C.F.R. § 122.26(b)(14)(i)–(xi) to be covered under a permit.[4] Relevant in this case was the following category:
Transportation facilities classified as Standard Industrial Classifications 40, 41, 42 (except 4221-25), 43, 44, 45, and 5171 which have vehicle maintenance shops, equipment cleaning operations, or airport deicing operations. Only those portions of the facility that are either involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, airport deicing operations, or which are otherwise identified under paragraphs (b)(14) (i)–(vii) or (ix)–(xi) of this section are associated with industrial activity.[5]
In Washington, authority for administering the NDPES program has been delegated to Ecology by the Environmental Protection Agency (EPA).[6] As issued by Ecology, the ISGP sets forth a number of requirements applicable to stormwater discharges covered by the permit. On request from the district court, Ecology provided an amicus brief supporting PSA’s position regarding the scope of covered activities, arguing that the permit applied to the entire footprint of the facility and not just the areas where transportation activities occur.[7]
The district court, however, rejected Ecology and PSA’s position, and determined that the plain language of the ISGP unambiguously limited the scope of transportation facility regulation to the scope of the federal regulations—i.e., to only those portions of the facility that are involved in vehicle maintenance, including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication, equipment cleaning operations, and airport deicing operations—and not the entire facility, fence line-to-fence line.[8] The district court further concluded that because no regulated industrial activities occurred on the wharf, PSA’s claims pertaining to the same should be dismissed.[9]
Puget Soundkeeper Alliance v. Ecology Decision
The district court’s above opinion appears to conflict with an earlier decision under the 2010 ISGP, Puget Soundkeeper Alliance v. BNSF Railway Co.,No. 2:09-cv-1087-JCC, (W.D. Wash. Apr. 11, 2011), in which the district court ruled on reconsideration that the 2010 ISGP did in fact regulate transportation facilities beyond vehicle maintenance areas, equipment cleaning operations, and airport deicing operations.[10] Unlike in APM Terminals, the district court in BNSF Railway determined the plain language of the 2020 ISGP was ambiguous as to whether Ecology intended to regulate activities beyond the scope of the federal regulation.[11] The court then looked to extrinsic evidence to conclude that Ecology intended an expanded scope.[12]
The PCHB addressed this apparent conflict when ruling on a motion for summary judgment in Puget Soundkeeper Alliance v. Ecology, finding the “APM Terminals analysis more persuasive” and rejecting the analysis applied in BNSF Railway.[13] Following an analysis similar to APM Terminals, the PCHB rejected Ecology’s argument that the 2020 ISGP permit expanded the scope of coverage to entire transportation facilities and ruled that the plain language of the 2020 ISGP clearly limits the scope of coverage for transportation facilities to the same scope confirmed in APM Terminals.
Impact of the Decisions
It remains to be seen if the PCHB or courts will continue to find APM Terminals more persuasive and whether Ecology will seek to more clearly expand the reach of the ISGP as applied to transportation facilities. Ecology’s authority to increase the scope of regulated transportation sector stormwater discharges is uncertain. If Ecology pursues that option, the expansion may be subject to legal challenges.
The decisions may also impact the scope of purported regulated stormwater discharges in other jurisdictions as well. For example, Oregon’s recently reissued 2021 industrial stormwater general permit deviates from prior permit versions by attempting to regulate all transportation sector stormwater discharges—not just those associated with vehicle maintenance shops, equipment cleaning operations, or airport deicing operations. In doing so, Oregon’s Department of Environmental Quality (DEQ) reasoned that “Washington State Ecology’s industrial stormwater general permit also regulates the entire footprint of industrial facilities.” However, that support for Oregon’s change in the scope of its industrial stormwater general permit no longer stands. It remains to be seen if DEQ will reconsider and/or entities will challenge the expanded scope in light of Washington’s recent decisions.
*Erika Spanton is an attorney at Beveridge & Diamond, P.C. in Seattle, and represents clients in environmental litigation matters, including climate change lawsuits, Clean Water Act citizen suits, and actions under state water quality laws, CERCLA, and state Superfund statutes. Her regulatory practice focuses on water matters, including stormwater regulation, SPCC compliance, fisheries, and aquaculture.
[1] Puget Soundkeeper All. v. APM Terminals, 2020 U.S. Dist. LEXIS 205576 at*29.
[2] See 33 U.S.C. § 1301 et seq.; 33 U.S.C. § 1365 (Citizen Suit provisions).
[3] See 33 U.S.C. § 1311(a).
[4] This is true unless the discharges qualify for a no exposure certification or other exemption.
[5] 40 C.F.R. § 122.26(b)(14)(viii). The regulations provide that for facilities with 4221-4225 Standard Industrial Classifications, permits are required regardless of whether there are the above-mentioned auxiliary operations or not. Id. at § 122.26(b)(14)(xi).
[6] Puget Soundkeeper All. v. APM Terminals Tacoma, LLC, 2020 U.S. Dist. LEXIS 205576 at *8.
[7] Id. at *26.
[8] Id. at *29.
[9] Id.
[10] Puget Soundkeeper All. v. BNSF Railway Co. slip op. at *2.
[11] Id. at *2–3.
[12] Id. at *3.
[13] PCHB No. 19-089c, at 18 (Mar. 23, 2021).
WSBA ENVIRONMENTAL & LAND USE LAW SECTION 