by Allison Arthur
reprinted with permission from The Port Townsend & Jefferson County Leader, June 8, 2016
A lawsuit against Coast Seafoods Co. over the discharge of effluent into Quilcene Bay is moving forward after a U.S. District Court judge rejected a motion by the company to dismiss the case outright.
The case was filed Jan. 28 by the Olympic Forest Coalition (OFCO), an environmental nonprofit based in Quilcene.
U.S. District Court Judge Ronald Leighton concluded in a written statement June 3 that OFCO’s claim for relief can move forward because it has “plausibly stated a claim for relief in this case.”
The nonprofit is suing the largest employer in south Jefferson County, alleging that the shellfish company ought to be filtering its discharge into Quilcene Bay.
Connie Gallant, OFCO board president, said on June 6 that the nonprofit brought the suit against the company because there are a lot of questions about what types of chemicals are being discharged as well how much oyster poop is going into the bay.
Since Coast Seafood was purchased by Oregon-based Pacific Seafood in 2012, there has been a significant increase in the amount of material discharged, all without a pollution discharge permit, Gallant said.
The company claims to have increased its production of baby oysters, known as spat, from 8 billion annually to 40 billion annually over the past five years, OFCO’s website contends. Coast Seafoods’ website boasts it produces “45 billion eyed oyster larvae per year.”
“We started with a complaint to [the state Department of] Ecology, and they dismissed our complaint and didn’t do anything about it, including inspect it like we asked. They just followed the reports that Coast hired, and that report does say they pollute,” Gallant said.
“All we’re after is for them to put in a filtering system,” Gallant told the Leader in February. The legal move is not about trying to curtail or close the business operation, Gallant said at the outset.
Attorney Paul A. Kampmeier, who is representing OFCO, said Tuesday that he felt the judge ruled correctly.
“In the face of a plausible allegation that Coast Seafoods is discharging pollutants from pipes and ditches, the statutory language compels this Court to deny defendant’s motion to dismiss,” Judge Leighton wrote in his decision.
Kampmeier also noted that there were no agencies, such as the federal Environmental Protection Agency or state Department of Ecology, that joined Coast Seafoods as a friend and there were no trade associations that came to their defense either.
“Those entities were absent and I think that speaks volumes about the validity of their legal argument” that they don’t need a permit, Kampmeier said.
Tony Dal Ponte, deputy general counsel for Coast Seafoods, said on June 6 that the case proceeds now with no date yet set for another hearing.
“We’re disappointed with the judge’s ruling but confident we will ultimately prevail,” he said.
Dal Ponte said the state Department of Ecology (DOE) has looked into complaints by Gallant and her husband, J.D. Gallant, and when the DOE didn’t take action, OFCO sued.
From Coast Seafoods’ perspective, the legal action appears to be aimed at regulatory control by the federal Environmental Protection Agency and the Clean Water Act, through a National Pollutant Discharge Elimination System (NPDES) permit.
The state DOE is designated by the EPA to oversee water pollution control laws and regulation, and issues NPDES permits, which is why the Gallants started with that state agency.
“Coast Seafoods fully complies with all regulatory requirements. The regulations don’t require us to have a permit, so we don’t have a permit,” Dal Ponte said.
“We are fully committed to sustainable practices. It’s one of our core values. We’re committed to the health of Quilcene Bay. It’s where we grow our oysters and where our employees make their home,” he said.
In February, Dal Ponte said the issue was with the state’s regulatory framework and that Coast Seafoods “fully complies with all permitting requirements, and we expect the suit will be promptly dismissed by the courts.”
Kampmeier also was unsure what the next step would be in the suit.
“It depends on whether they want to continue fighting or whether they want to talk to the community and my client about a different arrangement and coming to an agreement that has them getting a permit and mitigating any past pollutions at the facility,” Kampmeier said.
Coast Seafoods Co. has operated in Quilcene since 1946 and currently employs 45 people. The company’s website states, “At our Quilcene Hatchery, advanced technology, experienced technicians and a superb natural environment have combined to make it the world’s largest shellfish hatchery capable of producing over 45 billion eyed oyster larvae (diploid and triploid) per year.”
Coast Seafoods was made aware of this potential litigation last year.
The suit alleges that “effluent from the facility contains pollutants, including but not limited to total suspended solids, nitrogen, phosphorous, ammonia, nitrites, nitrates, Chlorophyll a, Phaeophytin a, heat, pH, salinity, dissolved oxygen, and chlorine. These and the other materials in the facility’s effluent constitute chemical wastes, biological materials, heat, industrial waste, and other ‘pollutants’ as defined by the Clean Water Act.”
It also notes that Coast Seafoods hired a consultant, Rensel Associates Aquatic Sciences, to assess the effluent discharged into Quilcene Bay, which led to a report in 2013. The Rensel report “documents point-source dischargers of pollutants” that include pipes, ditches and channels, OFCO contends.
The Olympic Forest Coalition is asking the federal court to grant injunctive relief and require Coast Seafoods to comply with the Clean Water Act and apply for an NPDES permit. It also asks for civil penalties as allowed, and to award the plaintiff its litigation expenses, including costs and reasonable attorneys’ and expert witnesses’ fees.