Puget Soundkeeper Alliance, Resources for Sustainable Communities, and Friends of the Earth v. Ecology and BP Cherry Point Refinery
Appeal of NPDES permit issued to BP Cherry Point Refinery
Ecology issued an NPDES permit for the BP Cherry Point Refinery to regulate process wastewater discharges. Both BP and various environmental/conservation groups appealed the terms of the permit to the Board. Two primary issues were before the Board on summary judgment.
The first issue dealt with the type of notice required for process or facility changes that might cause violations of the permit’s effluent limitations. On this issue, the Board gave deference to Ecology’s interpretation and application of a complex state and federal regulatory structure, in a technical and scientific area related to facility expansions, production increases, or process changes that potentially trigger violations of the permit’s effluent limitations. The Board found the contested permit condition was a valid exercise of Ecology’s permitting discretion and fairly stated the notice requirements needed for certain types of facility changes.
The second issue related to that condition of the NPDES permit that set out the effluent limitation for acute toxicity, and the manner in which the permittee must comply with the effluent limit. The permit sets out an acute toxicity limit, and compliance with the limit is measured or implemented through the whole effluent toxicity test (WET test), established in Ch. 173-205 WAC. The permit defines the process required to come into compliance with the WET limit when a toxicity test reveals noncompliance. At issue was whether there was a violation of the permit so long as the permittee performs the required follow up testing, monitoring, and study required by the permit, or whether the permit was invalid for not making the failure of a WET test a permit violation. The Board gave deference to Ecology’s science-based expertise, which was also consistent with EPA guidance, that a single WET limit exceedance does not indicate a pattern of toxicity, and is not determinative of whether there is a violation of the toxicity standard. Rather, a single exceedance was appropriately considered a trigger for further process to determine if there was a toxicity problem with the discharges. However, the Board concluded that once a subsequent test revealed ongoing noncompliance with the permit’s WET limit, the law was clear that there was a violation of water quality standards and a related violation of the terms of the permit. The Board concluded that the permit was ambiguous as to whether these ongoing exceedances of the WET limit were violations of the permit, and of water quality standards, and subject to enforcement. The Board remanded the permit to Ecology to clarify that ongoing exceedances of the WET limit are violations of the permit, enforceable by Ecology.
The parties resolved the remaining issues presented by the appeals, and the case was dismissed.