The Coast Seafoods Company is asking the U.S. 9th Circuit Court of Appeals to rehear a case in which the court sided with the Olympic Forest Coalition and remanded the case back to the U.S. District …
The Coast Seafoods Company is asking the U.S. 9th Circuit Court of Appeals to rehear a case in which the court sided with the Olympic Forest Coalition and remanded the case back to the U.S. District Court. The coalition is suing Coast Seafoods over its discharge of effluent from its oyster-growing facility into Quilcene Bay.
On March 9, the 9th Circuit Court agreed with the U.S. District Court for Western Washington, Tacoma, which had concluded the seafood company needs to obtain a National Pollution Discharge Elimination System permit. That is what the Olympic Forest Coalition wants the company to do.
“It’s definitely a ruling in favor of Olympic Forest Coalition,” said attorney Paul Kampmeier, who represents the Quilcene-based coalition.
Kampmeier said the coalition still has to prove Coast Seafoods polluted Quilcene Bay.
Lacy Ogan, communications manager for Pacific Seafood Shellfish, which owns Coast Seafoods, wrote in an April 9 email that the company has filed a petition for a rehearing on the 9th Circuit Court’s decision.
In its request, the company is arguing the court had ruled in another case that if an aquatic animal production facility does not meet the criteria to be classified as a concentrated aquatic animal production facility, it does not need a discharge permit. That is the crux of Coast Seafoods’ position – it does not need a NPDES permit.
Tony Dal Ponte, Coast’s deputy general counsel, stated in a March 19 email the 9th Circuit Court’s opinion was “inconsistent with existing EPA (Environmental Protection Agency) regulations and guidance.”
“Coast Seafoods is a leader in environmental sustainability and vocal advocate for clean water,” Dal Ponte wrote in a statement. “Our oyster hatchery fully complies with all current permitting requirements and, as confirmed by the Washington Department of Ecology, there is no compelling reason to require additional coverage under the NPDES permit program.”
The hatchery is located at 1551 Linger Longer Road in Quilcene. It is owned by Pacific Seafood Shellfish, a company employing 2,500 people at more than 35 facilities in seven states, according to its website. Ogan said the Quilcene facility employs 20 people.
BACK TO 2013
The suit against Coast Seafoods was filed in January 2016 alleging Coast hired a consulting firm back in 2013 to assess the effluent from its hatchery. Rensel Associates Aquatic Sciences, also known as Rensel Associates, was hired to document certain pollutants in its effluent but did not test for chlorine, the 9th Circuit Court’s opinion noted.
The coalition filed a citizen suit contending that on seven occasions in 2014, there were discharges of chlorine from the hatchery into Quilcene Bay.
The coalition filed suit and argued Coast Seafoods had not obtained an NPDES permit allowing it to do that.
That same year, Coast asked Ecology if it needed an NPDES. Ecology responded in July 2016 that an NPDES was not necessary.
Ecology officials concluded the hatchery did not meet the criteria for a concentrated animal-feeding operation. Ecology officials also said they had reviewed the report Rensel Associates had done and concurred with it.
Coast then asked the court to dismiss the complaint, contending, “Despite the hatchery’s use of pipes, ditches and channels to discharge pollutants into Quilcene Bay, a NPDES permit was not required.”
The U.S. District Court denied Coast Seafoods’ motion to dismiss the case and the 9th Circuit Court affirmed that decision.
“It is undisputed that discharges from point sources must obtain NPDES permits,” 9th Circuit Court Judge William A. Fletcher wrote in the March 9 opinion, adding it also is undisputed that pipes, ditches and channels are point sources. “The disputed question is whether pipes, ditches and channels that discharge pollutants from a non-concentrated aquatic animal production facility are point sources,” he wrote.
“We further conclude, as a necessary corollary, that pipes, ditches and channels that discharge pollutants from an aquatic animal production facility that is not a (concentrated aquatic animal production facility) are point sources for which an NPDES permit is required,” he wrote later in the decision.
Judge Fletcher also wrote there was no indication in 2016 the Ecology Department had ever conducted its own assessment of pollutants discharged from the hatchery or considered any other source of information other than the Rensel report.
“Assuming, as we must, that the allegations in the complaint are true, there are discharges of chlorine from the hatchery’s pipes, ditches and channels that require an NPDES permit,” Fletcher wrote.
A CLEANER BAY
Connie Gallant, president of the board for the Olympic Forest Coalition, said the nonprofit is not trying to close the business and only wants the company to get a permit and filter any pollutants.
“The goal has not changed. What we want is to have them get the NPDES permit and filter any outgoing fluids they have. That’s what will keep the bay cleaner,” Gallant said. “It’s the only fair thing for the residents of the community. Kids swim in the bay and around the marina, and there’s a lot of activity from shrimpers. It affects our local economy if the waters are full of the brown crud coming out of their pipes.”
Gallant also said it is not clear if there are any health issues, but as a responsible employer, she said, Coast needs to take responsibility for what it is discharging into the bay.