RE Sources sues SSA Marine for Clean Water Act violations

Published on Wed, Dec 14, 2011 by Jeremy Schwartz

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A Bellingham-based environmental group that has been one of the most vocal opponents of the proposed Gateway Pacific
Terminal has filed suit against the company seeking to build the project.

RE Sources for Sustainable Communities has filed a citizens’ lawsuit against Pacific International Terminals, a subsidiary of Seattle-based SSA Marine, for federal Clean Water Act violations in connection with unpermitted tree clearing and road grading at the Cherry Point project site just south of Birch Bay. The $600 million Gateway Pacific Terminal is a multi-user import and export marine terminal for bulk, break-bulk and other marine cargoes. Upon final completion, the terminal would be able to handle 54 million tons of material, primarily coal that will be shipped to Asian markets.

RE Sources alleges SSA Marine, through its subcontractor AMEC Earth and Environmental, violated federal clean water regulations by clearing about 9 acres of trees at the Cherry Point site in July without the proper permits. AMEC was conducting a geotechnical survey of the site, the results of which SSA Marine will need to complete a detailed environmental impact statement for the proposed terminal.

“SSA Marine knowingly flaunted an array of county, state and federal regulations when they built roads damaging forests and wetlands this summer,” RE Sources executive director Bob Ferris said. “And now they want immediate forgiveness for creating impacts that could take decades to recover. That is simply unacceptable.”

Ferris said he hopes the lawsuit will force SSA Marine, 49 percent owned by investment firm Goldman Sachs, to mitigate the damage. If RE Sources wins the lawsuit or it is settled out of court, Ferris said SSA Marine will most likely be induced to re-evaluate their management practices for large-scale projects and take a more hands-on approach as opposed to giving much of the responsibility to subcontractors. SSA Marine may have to pay legal fees or other penalties if RE Sources prevails, but that money would not go to RE Sources, Ferris said.

“[SSA Marine] has to be much more responsible than this,” he said. “I think the fundamental goal of this lawsuit is to get SSA Marine to respect the law and obey the law, which we don’t think they’re doing.”

In a press release issued hours after RE Sources’ announcement, SSA Marine senior vice president Bob Watters said RE Sources is mistaken in filing a citizens’ lawsuit against the company. He said the point of the citizens’ lawsuit provision of the federal Clean Water Act is to remedy errors in government enforcement, which Watters maintains has not been the case.
“This lawsuit is pointless,” Watters said. “SSA Marine, and all the government agencies responsible for enforcement, have acted quickly and comprehensively.”

Watters said SSA Marine only requires county and state regulator approval of the company’s wetlands mitigation plan and a wetlands permit application to allow more extensive repairs to begin. The terminal company has begun installing erosion control measures at the damaged areas, Watters added.

On November 23, lawyers working on behalf of SSA Marine sent a letter to Smith and Lowney, the Seattle-based law firm representing RE Sources, explaining why RE Sources’ lawsuit will not make SSA Marine’s efforts to repair the damage to the Cherry Point site proceed faster. The letter details the permitting and preliminary work SSA Marine has done in cooperation with the county, the state Department of Ecology and the U.S. Army Corps of Engineers, all of whom made various permitting requirements of SSA Marine before the repair work can begin.

“There is no environmental or regulatory benefit that [RE Sources] can achieve by proceeding to file suit following the expiration of the 60-day notice period,” wrote Bradley Jones, a lawyer with the firm representing SSA Marine. “Pacific International Terminals had addressed the clearing activities as far as it could without legal authority to proceed with mitigation weeks before [RE Source’s] 60-day notice of intent to sue was sent.”

County officials learned of the unpermitted work in July and issued a stop work order and $4,400 in fines and administrative fees against SSA Marine, in addition to ordering the company to reforest the acreage that was cleared. The work felled trees and destroyed wetlands on the property.

The reforestation must be finished by March 31, 2014, and the trees planted must be allowed to grow for at least one year. County planning officials have since issued a land disturbance permit for the geotechnical work SSA Marine started, but restoration work must begin before additional geotechnical surveys can be completed.