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Puget Soundkeeper Alliance v. APM Terminals Tacoma, LLC

United States District Court, W.D. Washington, Tacoma

June 4, 2018

PUGET SOUNDKEEPER ALLIANCE, Plaintiff,
v.
APM TERMINALS TACOMA, LLC, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS, AND GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND

          BENJAMIN H. SETTLE, United States District Judge

         This matter comes before the Court on Defendant the Port of Tacoma's (“the Port”) motion to dismiss (Dkt. 81) and Plaintiff Puget Soundkeeper Alliance's (“PSA”) motion for leave to amend (Dkt. 95). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby (1) grants in part and denies in part the Port's motion to dismiss, and (2) grants PSA's motion for leave to amend.

         I. BACKGROUND

         At issue in this case are industrial stormwater discharges at a large marine cargo terminal used for ship unloading and cargo distribution located at 1675 Lincoln Ave., Tacoma, WA 98241, and on contiguous and adjacent properties. Dkt. 6 at 5. The Port owns the facility.

         The facility discharges stormwater associated with industrial activity into the Sitcum Waterway, part of Commencement Bay and the Puget Sound. Dkt. 75 at 7. At an unspecified date, Dkts. 38, 48, Defendant APM Terminals Tacoma, LLC (“APMT”) obtained permit coverage for the facility under the Department of Ecology's (“Department”) 2010 industrial stormwater general permit pursuant to the National Pollutant Discharge Elimination System (“NPDES”) permit program. Dkt. 75 at 7. APMT was leasing the facility from the Port and obtained NPDES permit coverage as the facility's operator. The coverage was issued under permit number WAR000307. Id. Subsequently, the Department issued coverage to APMT under its 2015 general permit using the same permit number. Id.

         PSA alleges that discharges from the facility for the last five years have exceeded numerous pollutant benchmark values established by the applicable NPDES permits. See Dkt. 75. PSA further alleges that Defendants are liable for violating 33 U.S.C. § 1311(a) because such discharges are out of compliance with the applicable NPDES permits. Id. Specifically, PSA alleges that Defendants' discharges at the facility are out of compliance with the applicable NPDES permits because Defendants have failed to apply all known, available and reasonable methods of prevention, control and treatment (“AKART”) and are failing to implement an adequate stormwater pollution prevention plan (“SWPPP”) and best management practices (“BMPs”). Id.

         On January 9, 2017, PSA commenced this action by filing its complaint against APMT. Dkt. 1. On February 21, 2017, PSA filed an amended complaint as a matter of course. Dkt. 11. On March 13, 2017, APMT filed its answer. Dkt. 12.

         On May 15, 2017, PSA learned that APMT would be vacating the facility by the end of 2017, pursuant to the termination of its lease with the Port. Dkt. 39 at 1. PSA also learned that SSA Terminals, LLC and SSA Marine, Inc. (collectively “SSA”) would be taking APMT's place as the facility's operator. Id.

         On May 16, 2017, the Court entered a temporary stay pending the resolution of proceedings before the Washington Pollution Control Hearings Board (“PCHB”) regarding APMT's permits and the appropriate level of pollutants that APMT may discharge. Dkt. 23. On August 9, 2017, the Court lifted the stay after the PCHB rendered its decision. Dkt. 30.

         On July 20, 2017, PSA sent a letter to the Port notifying it of PSA's intent to sue. Dkt. 75 at 3. On August 3, 2017, PSA sent a letter to SSA notifying it of PSA's intent to sue. Dkt. 39-3.

         On September 7, 2017, PSA moved for partial summary judgment against APMT. Dkt. 33. Then, on September 25, 2017, PSA moved for leave to file a second amended complaint in order to add the Port as a defendant. Dkt. 46. PSA did not move to add SSA as a defendant at that time because SSA had not yet occupied or possessed any control over the facility. See Dkt. 95 at 3. On September 28, 2017, APMT moved to dismiss the first amended complaint, notwithstanding the pending motion for leave to amend. Dkt. 49.

         On October 2, 2017, APMT's lease with the Port was terminated. Dkt. 75 at 8. On the same date, the Department issued coverage for the facility to the Port under the new permit number WAR305772. Id. at 7. PSA alleges that on an unspecified date in October, shortly after APMT left the facility and the Port obtained coverage under the new permit number, SSA began operating the facility in the same manner as APMT. See Dkt. 75. On October 23, 2017, the Port signed an Agreed Order #15434 with the Department. Dkt. 82-4. The Agreed Order extends a deadline until September 30, 2018 for implementing corrective actions and bringing the facility into compliance with the applicable general NPDES permit requirements. Id. The Agreed Order also sets out a stipulation by the Port to pay daily penalties if it fails to install the necessary treatment system by that date, absent the Department's approval of yet another deadline extension. Id.

         On November 17, 2017, in order to enable settlement discussions, APMT and PSA filed a stipulated motion to stay their then-pending motion for partial summary judgment and motion to dismiss. Dkt. 72. On November 20, 2017, the Court granted the stipulated motion, staying the motion to dismiss and the motion for summary judgment until February 16, 2018. Dkt. 73.

         On November 27, 2017, the Court granted PSA's motion for leave to file a second amended complaint, rendering moot the then-pending motion to dismiss and motion for partial summary judgment. Dkt. 74. On November 28, 2017, PSA filed its second amended complaint, adding the Port as a defendant. Dkt. 75. In the second amended (and presently operative) complaint, PSA alleges that APMT and the Port are both liable for discharges at the facility because both APMT and the Port possessed substantial control over the discharges. Dkt. 75 at 7 (“The Port has the power and capacity to make timely discovery of discharges at the facility, direct the activities of those who control the mechanisms causing the pollution at the facility, and prevent and abate damage associated with the discharges.”); id. at 88.

         On February 8, 2018, the Port moved to dismiss all claims against it alleged in the second amended complaint. Dkt. 81. On March 12, 2018, PSA responded. Dkt. 86. On March 22, 2018, the Port replied. Dkt. 89.

         On April 12, 2018, PSA moved to file a third amended complaint. Dkt. 95. PSA seeks to add the entities comprising SSA as defendants, as they are now operating the facility. Dkt. 95. On April 23, 2018, both the Port and APMT responded in opposition to PSA's motion for leave to amend. Dkts. 97, 98. On April 27, 2018, PSA replied. Dkt. 101.

         On May 24, 2018, the Port moved to stay discovery pending the Court's order on its pending motion to dismiss. Dkt. 95.

         II. ...


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