Appeals over crude oil permit decision

Though both sides claimed some victories when the state Shorelines Hearings Board stalled crude oil shipping proposals last year, both are now appealing the board’s ruling.

The Quinault Indian Nation and Imperium Terminal Services have both filed petitions for judicial review in Thurston County Superior Court. The Quinaults have also taken the first step to having the case skip directly to the state Court of Appeals.

The tribe argues the crude oil shipping proposals should fall under the Ocean Resources Management Act and therefore merit further review; Imperium argues that the consideration of its permits shouldn’t have to include the impacts of a potential project proposed by U.S. Development that hasn’t reached the permitting stage.

Quinaults appeal

The Quinault Indian Nation and a coalition of environmental groups — Friends of Grays Harbor, the Grays Harbor Audubon Society, Citizens for a Clean Harbor, the Surfrider Foundation and the Sierra Club — each filed appeals with the state after the City of Hoquiam and the state Department of Ecology issued what is called a mitigated determination of non-significance (MDNS) for crude-by-rail projects proposed by Westway Terminal Co. and Imperium.

The MDNS was issued because the co-lead agencies believed the companies’ plans did enough to mitigate potential environmental impacts under the State Environmental Policy Act. By itself, the MDNS doesn’t permit the companies to do anything, but it would have streamlined the permitting process.

The Shorelines Hearings Board ultimately disagreed with the co-lead agencies in its November ruling, rejecting the MDNS, invalidating the shorelines permits and sending the whole project back to the city for further review. The ruling also ordered the companies complete rail and vessel traffic analyses before moving forward. The companies will have to re-apply for their shorelines permits.

The Quinaults are challenging the decision the board made on the Ocean Resources Management Act. The tribe asserted the oil projects should fall under ORMA’s review process because they would “adversely affect the environment.”

The board concluded that the projects should not be under ORMA because they’re not extracting the oil from Washington waters.

The intent section of the act references restrictions on oil or gas exploration, development or production on tidal or submerged lands.

“The board’s decision authorizes regulatory agencies to forego ORMA’s review criteria except in certain narrow situations involving oil extraction and development,” the tribe’s attorneys with Earthjustice wrote in their filing.

The tribe has requested a certificate of appealability from the board, the document which would allow them to take their appeal directly to the state Court of Appeals. In its court documents, the tribe argues that’s important because no court in Washington has considered ORMA’s scope in the specific context of crude-by-rail projects like the ones proposed on Grays Harbor.

“… The ruling in this case will be the first judicial word on the applicability of ORMA to ocean transportation of crude oil in Washington — a phenomenon of growing importance in the state,” the tribe’s filing states.

Imperium appeal

Imperium’s petition for review takes issue with a different aspect of the board’s decision. When Hoquiam and Ecology decided to issue permits to Imperium and Westway, they didn’t consider the impacts of a third project in an earlier phase of development because U.S. Development had not applied for any permits or submitted detailed information.

The board, however, concluded both agencies had enough information to reasonably include the third terminal in their overall analysis, and ordered that they do so when re-considering the permits for Westway and Imperium.

“They know its location on Grays Harbor … They know its purpose, which is the same as the Westway and Imperium expansions, is to receive multiple grades of crude-by-rail, store it in terminals, and transfer it to vessels. They know its maximum capacity of proposed liquid storage, along with the daily maximum capacity of liquids it can handle. They know the number of anticipated rail unit trains and vessels visiting the planned new facility. This information is sufficient to merit its inclusion in the consideration of cumulative impacts from all three projects,” the decision reads.

U.S. Development has a lease option with the Port of Grays Harbor, but no more official progress. The Port said Tuesday the company expects to have its permit applications filed by the end of the first fiscal quarter of 2014.

In its petition, Imperium argues the board’s decision incorrectly applies environmental law and its own precedents.

“The board’s conclusion is also in willful disregard of relevant, controlling case law and, therefore, arbitrary and capricious,” the filing states.

The company notes in its court documents that although it doesn’t agree with the board’s order to perform its vessel and rail traffic analyses before getting its MDNS, it has elected to comply.

“Imperium has chosen to appeal only the cumulative impacts described herein, without conceding the correctness of other aspects of the board’s order,” the company’s lawyers with Seattle law firm Van Ness Feldman wrote.

No hearing dates have yet been scheduled. The board will respond to the Quinaults’ request this month.


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