Millennium Bulk Terminals sues Ecology for withheld records

Trains passing through terminal
Millennium Bulk Terminals this week announced it is suing the Department of Ecology for failing to provide proper documentation regarding findings made in the project’s Final Environmental Impact Statement. Photo: Mike Richards

Millennium Bulk Terminals (MBT) filed a lawsuit this week against the Washington State Department of Ecology for withholding records used as the basis for critical findings within the proposed terminal project’s Final Environmental Impact Statement (FEIS). The company also is appealing a November 14 decision by Ecology to deny the project’s shoreline permits, arguing that the Hearing Examiner’s decision considered concerns outside of the permit’s proper scope.

“If a company paid millions to a consultant for a project, that consultant would provide the background information supporting their work to the client within weeks,” said MBT Vice President Wendy Hutchinson in a recent statement. “Yet Ecology and their consultant have not been able to provide that information to us for over half a year. Why can’t Ecology provide this information directly, or ask its consultant to provide the information?”

Hutchinson said she also found fault with Ecology altering the FEIS to ignore recommendations and findings from the Department’s hired experts.

“The lack of timely response to very specific requests for data is troubling,” said MBT Attorney Jon Sitkin. “The process to receive documents from Ecology has been very slow. Seven months after our request, Ecology has only released limited information.  This is too long for information that should be readily available, given the FEIS was completed in April.”

MBT’s permitting process began over 5 years and 9 months ago. In April, Ecology and Cowlitz County released its FEIS which found the terminal’s coal dust deposits would not exceed air quality standards and trains passing through the area would contribute to increased rail traffic.

In July, the company received its first permit required for final project approval: the critical areas permit. Since then, the project’s water quality and shoreline permits have both been denied. MBT appealed the water quality permit denial at the end of October.

On December 4, the company also appealed Ecology’s decision to deny the shoreline permits. MBT claimed the Hearings Examiner’s decision was “erroneous” and considered negative effects generated outside of the immediate scope of the permits.

In its lawsuit against the Department, MBT claims Ecology violated the Public Records Act and refused to provide records the Department used as the basis for its findings in the FEIS.

One successful records request revealed the Department disregarded expert opinion and went ahead to compare train car emissions to Cowlitz County emissions when referencing areas of concern within the project’s FEIS.

“This is not an apples to apples comparison,” stated an Ecology expert’s statement that was referenced in the lawsuit. The advisor recommended leaving out the comparison entirely as it was misrepresentative.

An August 10, 2016 e-mail reveals that Ecology’s consultant, ICF International, Inc., recommended Ecology not include its Green House Gas (GHG) model in its FEIS when recommending mitigation.  “…ICF does believe the analysis prepared for the SEPA EIS is not adequate to develop a very specific GHG mitigation measures…” stated the email.

Yet Ecology disregarded that advice and used the model anyway, recommending that Millennium should mitigate for GHG.

“This time Ecology chose to leave the erroneous comparison in the FEIS,” Sitkin said. “There have been no documents produced by Ecology that demonstrate why they disregarded the expertise of their consultant.”
“Ecology has yet to produce modeling data to back up their GHG calculations,” Sitkin continued. “It is data that is typically provided as backup or reference data for an EIS, but it was not included in the 14,000-plus pages for the Millennium project’s FEIS that took more than five years to finish. Why?”

At the local level, Longview City Councilmember Mike Wallin said he recognizes the benefit of the project for Cowlitz County, and condemns the Department for its seemingly one-track mind when it comes to fossil fuel projects.

“Millennium wins the award for persistence,” Wallin told Lens. “They are so committed to doing this project for our community; it’s pretty impressive. Unfortunately, the goal post keeps moving. It’s a terrible precedent for any group, agency or entity trying to start a new industry in Washington.”

Millennium offers “the hope of a vibrant economic future,” Wallin said, as the project would provide skilled, family-wage jobs that will enable the community to prosper.

The project’s construction is anticipated to created 2,650 direct, indirect and induced jobs and $435 million in economic activity. Once operational, it would provide 135 jobs annually and $2.2 million in state tax revenues.

“The perception is…Ecology has predetermined the outcome on these permits and other projects. We will probably never see another mill or manufacturer permitted on the riverfront in Southwest Washington and that is alarming,” Wallin continued.

He added that both Ecology and Governor Jay Inslee have their minds made up and will keep changing the rules to stop the project or anything else related to diesel, a position the councilmember called “alarming for everyone.”

Dave Bennett, Communications Manager of Ecology’s Southwest Regional Office, told Lens the Department would address specific allegations within the lawsuit in court, adding that they believe Cowlitz County and Ecology have carried out the permitting process in a fair and impartial manner.

 

 

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