United States District Court, W.D. Washington, Tacoma
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
24, 2018, the Port moved to stay discovery pending the
Court's order on its pending motion to dismiss. Dkt. 95.