Clean water advocates win major victory to protect aquatic species from toxic wastewater discharge
SEATTLE, WA — Three major Washington state oil refineries and an aluminum smelter will now have to more tightly regulate the cleanliness of their wastewater discharge into Puget Sound waterways. The new regulations follow legal action taken by Puget Soundkeeper, Friends of the Earth and North Sound Baykeeper to ensure that permits issued to these major facilities are protective of sensitive waters and uphold the goals of the Clean Water Act.
In 2014, Soundkeeper, North Sound Baykeeper and Friends of the Earth challenged the wastewater discharge permit issued to BP’s Cherry Point oil refinery. The whole effluent toxicity (WET) test is the only tool which measures the combined impact of pollutants in wastewater discharge. The permit, however, allowed BP to fail a WET test without violating the Clean Water Act. Under the previous permit, BP’s discharge could be fatally toxic to aquatic organisms like minnows without triggering corrective action, despite the fact that its wastewater discharges directly to the sensitive Cherry Point Aquatic Reserve.
The Washington State Court of Appeals came down strongly on the side of clean water, ruling in July 2015 that a single WET test failure must constitute a Clean Water Act violation. In the meantime, Soundkeeper and Friends of the Earth filed separate appeals with the Pollution Control Hearings Board to extend the ruling to the Tesoro oil refinery in Anacortes and the Phillips 66 refinery and Intalco aluminum smelter located in Ferndale. The Washington Department of Ecology has now updated the permits for all of these facilities to reflect the Court of Appeals’ decision. In the ruling, the Court of Appeals rebuked Ecology for failing to protect public waterways.
“Without this ruling, wastewater from these facilities would have polluted critically important habitat for years,” said Chris Wilke, Executive Director of Puget Soundkeeper. “But Puget Sound is in trouble today, and no facility has the right to violate the Clean Water Act and ignore the necessity of protecting our shared resources.”
“We are thrilled that the appeals court ruled in favor of Clean Water Act protection. Now the State of Washington isn’t allowed to let refineries and other industrial polluters off the hook for Clean Water Act violations,” said Marcie Keever, legal director at Friends of the Earth.
Soundkeeper, Friends of the Earth and North Sound Baykeeper were represented in the Court of Appeals case by Richard Smith and Elizabeth Zultoski, Smith & Lowney, PLLC.
“The Court of Appeals just nailed it. Where state law says toxic discharges are not allowed and cannot be authorized, it means what it says. The Court refused to let Ecology and the Pollution Control Hearings Board dilute this firm mandate for their convenience. I am very gratified that the state’s rules on whole effluent toxicity effluent limitations adopted in 1992 will finally be implemented as clearly intended to strictly prohibit toxic discharges rather than as merely providing aspirational goals,” said Richard Smith, Smith & Lowney PLLC.
A WET test is required as a compliance measure under the Clean Water Act to determine if effluent discharged from a facility is toxic to the point where it kills fish and other aquatic species.
Chris Wilke, Puget Soundkeeper Alliance, (206) 297-7002
Marcie Keever, Friends of the Earth, (510) 900-3144
Crina Hoyer, RE Sources for Sustainable Communities, (360) 233-8678