With the future of the Longview coal dock at stake, Millennium Bulk Terminals is suing the state Department of Ecology and arguing that the state agency unfairly and illegally denied a key permit for the project last month.
The company announced Tuesday it is filing the lawsuit in Cowlitz County Superior Court nearly a month after Ecology dealt a potentially fatal blow to the $680 million terminal project by rejecting a water quality certification. Ecology found that the project would worsen air quality, vehicle traffic, vessel traffic, rail capacity, rail safety, noise pollution, social and community resources, cultural resources and tribal resources.
“Today’s filings by our legal team reveal Ecology reinvented the rules and created an unprecedented process to evaluate our project,” Bill Chapman, Millennium CEO and president, said in a press release. “The law is clearly in our favor, and presenting our case will ensure other important economic development projects will not face these same kinds of abuses in the future.”
Millennium also will formally appeal the water quality permit denial to the state Pollution Control Hearings Board. Under the Clean Water Act, Millennium must have the state water quality certification before it can dredge the riverbed and fill wetlands. It’s one of 23 permits the company needs.
“Just last April, Ecology’s environmental statement announced that Millennium’s project met all state and federal water quality standards,” Chapman said. “But Ecology has chosen to ignore its own water quality findings and make up special rules for this project.”
In a statement, Ecology said it stands by its decision and argued that Millennium failed to demonstrate that its project would meet state water quality standards.
“The project would have resulted in unavoidable and adverse impacts to local air quality, vehicle traffic, vessel traffic, rail capacity, rail safety, noise pollution, social and community resources, cultural resources, and tribal resources. These impacts cannot be mitigated,” the department added.
“We are not surprised that Millennium is appealing Ecology’s decision to deny. This appeal was expected, and we are prepared to defend it through the legal process. We will review the appeal document and work to understand its basis and concerns,” Ecology said.
Opponents to the coal project pointed to the long battles ahead for the coal terminal.
“The legal pathway attempted by Millennium is difficult to follow. Largely, it indicates that the company has rejected reality. They are asking for special treatment because the obstacles to coal export, both economic and environmental, are too great,” said Jasmine Zimmer-Stucky, organizer with Columbia Riverkeeper and Power Past Coal Coalition.
Ecology’s decision is the second major setback for Millennium this year. The company also is fighting the State Department of Natural Resources’ rejection of an aquatic lands sublease for the project. This Friday, a Cowlitz County judge will hear arguments in that case.
Separately, Millennium will present its case for a shoreline permit in front of the Cowlitz County Hearings Examiner next week.
In its 100-page lawsuit against Ecology, Millennium argued the agency concocted reasons to deny the permit not based on the merits of the project itself but on Ecology’s own bias against coal.
The company pointed out that Ecology Director Maia Bellon tweeted extensively about the terminal’s negative impacts on the day the permit denial was announced. Bellon also “liked” several tweets from other anti-coal Twitter accounts without liking any tweets criticizing the permit denial, the company wrote.
Millennium also argued that Ecology “turned section 401 (of the Clean Water Act) on its head” and illegally denied the permit based on factors unrelated to water quality.
In denying the permit, Bellon did cite factors related to water quality: she argued that Millennium failed to demonstrate that it would adequately mitigate for impacts to wetlands. Bellon also said that the company did not provide sufficient information about its water rights and how it would process wastewater and storm water discharge during construction and operation of the terminal.
However, Bellon also devoted significant space in her permit denial letter outlining how the project would harm air quality, traffic and cultural and community resources. She highlighted how locomotive trains carrying coal to the site would increase diesel pollution — boosting the risk of cancer between 3 percent to 16 percent above background county levels, depending on how close a person lives to the train tracks, according to the EIS. (Those numbers are in dispute, however, because the state calculations assumed that older, more polluting locomotives will serve the terminal instead of a new generation of cleaner engines.)
Millennium argued that it was outrageous to fault the company for train emissions.
“This would be similar to denying Amazon a warehouse because of the number of UPS trucks it would take to deliver the products,”Kristin Gaines, vice president environmental planning for Millennium, said in a media briefing Tuesday.
Many of Ecology’s concerns could be applied to almost any other major bulk terminal requiring dredging, dock-building and heavy vessel and train traffic. Business and economic development officials have joined Millennium in complaining that Ecology’s decision could have a chilling effect on industrial projects statewide.
“If you applied this standard to all other port projects in Washington state, then I find it difficult to see where any port in Washington state can expand,” said Wendy Hutchinson, Millennium vice president of public affairs.
When denying the permit, Bellon cited the “unprecedented” scope of the project, which would export 44 million tons of coal annually — making it one of the largest coal terminals in North America. Coal would be piled eight stories high and 50 football fields wide, according to Ecology. The project alone would boost U.S. coal exports by 40 percent.
The terminal would add nearly 1,700 vessel transits to the Columbia River, a quarter of all freight traffic on the waterway. Sixteen round-trip trains carrying Rocky Mountain coal to the terminal would exacerbate traffic congestion during peak commute times and could affect emergency responders, the agency concluded. (However, the state and county are planning projects to ease rail congestion in the Longview industrial corridor.) Eight of those trains would delay tribal access to fishing sites upstream of the Bonneville Dam, the state review found.
The terminal would generate 130 permanent jobs, 1,000 construction jobs and $5.4 million annually in state and local taxes.
Ecology received a record number of comments — 200,000 — on Millennium’s water quality certification application. As one of the most hotly-debated projects ever proposed on the Columbia River, Millennium has been seeking permits for its mega-terminal for nearly six years.