History, Scoping and a Discussion of Implications

Terry Wechsler is a co-founder of Protect Whatcom and retired public interest attorney.

With the opening of scoping for the Environmental Impact Statement (EIS) for the proposed Gateway Pacific Terminal (GPT), some may want to know how we got here given that Whatcom County permitted a multi-modal terminal in 1997. The following is a partial history of key events that have occurred in the past fifteen years. (For a history of Cherry Point through 1998, read Dave Schmaltz’s excellent 1998 Whatcom Watch article, “Deliberations Continue on Proposed Fifth Deep Water Pier at Cherry Point” http://www.whatcomwatch.org/old_issues/v7i12.html .)

Early History of Development at Cherry Point

Pacific International Terminals (PIT), a subsidiary of SSA Marine, proposes to build GPT. PIT was formed around 1990 as a joint venture between Westshore Terminals, Ltd. (the B.C. coal terminal owner) and the Bellingham Stevedoring Co. unit of Stevedoring Services of America, known today as “SSA Marine” and based in Seattle. At that time, Japan announced demand for 100-120 million tons of coal per annum. Faced with expansion constraints, Westshore announced it made sense for it to develop new capacity on the U.S. Pacific coast, and potentially diversify from coal to other break bulk commodities.

Apparently, Whatcom County did not express much joy about permitting a coal terminal at that time, because PIT, in permit applications filed in 1992 with the county, proposed to build a multimodal terminal to ship 8.2 million tons of wheat, woodchips, Canadian potash, calcined coke (a byproduct from BP Cherry Point operations), and sulfur, depending on international market demand. According to the documents filed, PIT would apply for revised permits later if it proposed to ship other commodities (e.g., coal).

The terminal proposed at that time included a rail spur to the terminal site and loop around a roughly 100-acre area, silos for grain, and covered storage facilities for other commodities with elaborate dust control systems. The EIS concluded no significant amounts of fugitive dust would affect the air or water at Cherry Point, and focused primarily on aquatic impacts caused by pier construction and operation and vessel traffic.

In 1992, PIT originally proposed a 2-berth, 2,100-foot-long water pier with a 1,200-foot-long trestle to reach water deep enough (80 feet) to accommodate cape-size vessels, the largest bulk carriers in the world. Proponents presumably considered that pier adequate to accommodate 140 ship calls per year and barges on the shoreline side of the pier to move … stuff somewhere.

The final EIS (FEIS), completed in February 1997, described the purpose and need for the by-then 2,980-foot-long three-berth pier with trestle as providing waterfront access and facilities for the existing and future shipping needs of local developed and undeveloped industrial areas. The facility will also serve as a transfer point for import/export marine cargo with truck and rail traffic.

As a multi-user facility, the terminal will be able to handle a variety of products which may be imported to, or exported from, any existing or future user.

Gone were the barges on the shoreline-side of the pier, due to safety issues.

Whatcom County Planning and Development Services conducted a hearing with an independent hearing officer in 1997 who recommended to the County Council approval of the Major Development (today referred to as Major “Project”) and Shoreline Substantial Development permits, and the County Council approved those permits that same year.

Later that year, a group of private organizations — Washington Environmental Council, People for Puget Sound, Ocean Advocates, North Cascades Audubon Society, and the League of Women Voters, Bellingham/Whatcom County (collectively “WEC” or “the appellants”) — sued the county, claiming the EIS on which the hearing officer relied failed to address major impacts including storm water management and ballast water exchange, impacts on Cherry Point herring of ship operations in their feeding and spawning grounds, and potential for vessel accidents including ship groundings and collisions with oil tankers calling on the BP Cherry Point pier. The Washington Departments of Ecology (ECOL) and Fish and Wildlife (WDFW) joined as co-appellants and, in 1999, all parties entered into an agreement settling all claims, dismissing the appeal and requiring numerous studies, including herring and vessel traffic studies.

More Recent Developments

Before it could begin construction, PIT needed to comply with the settlement agreement, obtain permits from several state and federal agencies, and receive a lease from the state Department of Natural Resources (DNR) to build the pier. In a July 28, 2010, internal memorandum, Ecology staff discussed the studies required before a determination on pier design and location could be made, and listed essentially all studies agreed to in the Settlement Agreement.

In 2005, the Ninth Circuit Court of Appeals ruled in the case of Ocean Advocates v. United States Corps of Engineers that the Corps had erred in granting BP Cherry Point a federal permit to construct a second pier without first conducting an EIS under the National Environmental Policy Act (NEPA). Of specific concern to the court was the Corps’ failure to conduct a vessel traffic study (VTS) to determine the likelihood of an incident resulting in a significant oil spill and how such an even would impact the twelve endangered species at Cherry Point, particularly the Marbled Murrelet.

George Washington University completed the VTS for the Corps in 2008, but the Corps did not adopt its findings. That study, in predicting the risk of collisions and spills under different traffic density scenarios, had predicted a 62 percent greater chance of a major spill if future traffic was the maximum that could be predicted, including 140 ship calls to GPT. Today, however, PIT predicts 487 ship calls at maximum build-out, and numerous terminals in British Columbia are planned for construction or expansion.

David Dolling, Dean of GWU’s School of Engineering and Applied Science, notified the Corps in June of 2012 they were withdrawing from negotiations for a contract to revise the 2008 VTS after a year because of an impasse between the parties that could not be resolved. According to Dr. Johan René van Dorp’s publications page on the university’s website, the impasse related to the department’s unwillingness to conduct the study with confidentiality restrictions on work-in-progress. Transparency, he states, is “integral to the VTRA Team’s risk assessment/ management methodology involving high levels of technical detail and ongoing feedback from stakeholders as the analysis progresses.”

The Glosten Associates recently received the contract to update the BP VTS, and prepare a separate VTS to comport with the GPT Settlement Agreement.

In spite of the fact that PIT conducted none of the studies agreed to in the 1999 Settlement Agreement, Whatcom County determined in 2008 that the 1997 Major Development and Shoreline Substantial Development permits were still “active.” Though construction had not begun within five years as required by law, the county determined PIT had been “actively engaged in obtaining other necessary permits and approvals as conditioned by [the Whatcom County permits] along with the subsequent Settlement Agreement[, including] but not limited to, an aquatic lands lease….” In 2010, Whatcom County Planning and Development Services confirmed that determination in a letter to PIT in response to an inquiry seeking clarification of the status of the 1997 permits.

Also in 2010, Gov. Chris Gregoire organized a MAP (Multi-agency Permitting) Team, which included representatives of:

• all permitting agencies (U.S. Army Corps of Engineers (USACE), EPA, and the National Marine Fisheries Service; state agencies Ecology, WDFW and the governor’s Office of Regulatory Assistance with support from contractor SBGH Partners, LLC; and local agencies Whatcom County Planning & Development Services and Northwest Clean Air Agency);

• Washington Department of Natural Resources (DNR), owner of the tidelands for the citizens of Washington, which must grant a lease to build the pier;

• the tribes (Lummi and Nooksack); and

• project proponents PIT and BNSF Railroad; engineering consultants specializing in permitting major projects (AMEC, Cardno Entrix, and J.L. Patterson & Assoc.); and a vice president of Gordon Thomas Honeywell specializing in governmental lobbying, former Gov. Gregoire Chief of Staff Cindy Zehnder).

Not included on the MAP team were representatives of the public or interested NGOs. Salish Land Policy Solutions expressly and formally raised the issue and the team expressly determined it would not be appropriate to include the public. According to minutes reviewed, the tribes did not actively participate in meetings, though they were kept apprised of the proposal’s status. (The Lummi announced on September 21, to coincide with the Corps’ announcement scoping would open on the 24th, that they would not accept a cash offer from terminal proponents for their support of the terminal.)

The MAP Team met for nearly a year, planning a permitting process that would be as efficient as possible and eliminate redundant requirements (e.g., separate agencies conducting the same or similar studies). Plans were based on a JARPA (Joint Aquatic Resources Permit Application), which described permits required, beginning with “revised” permits from Whatcom County.

Other Proposed Terminals in Oregon and Washington

The terminal described in the JARPA application actually consists of two separate terminals. The 8.2 million metric ton (a metric ton is approximately 2,205 pounds) multimodal terminal permitted by the county in the 1990s was reduced to 6 million metric tons, and situated more westerly. To the east of that terminal would be a second terminal, initially built to ship 48 million metric tons of coal from the Powder River Basin (PRB). The pier is virtually the same as that permitted in 1997 which was the basis for PIT’s assertion they did not need a new Shoreline Substantial Development Permit (hereafter, “shoreline permit”).

Impacted wetlands increased from 23 to 141 acres. The rail footprint for the proposed terminal grew from 100 to 300 acres, roughly, and for the first time, PIT addressed rail traffic to the terminal. To move 48 million metric tons of coal per year requires eight trains per day if each is 1.6 miles long. What the permit application does not state is that those trains require four to six locomotives to pull them and, of course, the trains must return to the Powder River Basin.

The Whatcom Docs (which now number more than 200), in their call for a Health Impact Assessment, addressed primarily the issue of diesel particulates (though terminal proponents want to talk about fugitive coal dust from trains which, they claim, will be virtually eliminated with surfactants) and cited studies such as the Stockton Rail-yard study conducted by the California EPA which measured cancer rates two to ten times the national average depending on proximity of homes to the rail-yard. The Docs note this impact would be concentrated in a “rail corridor” a few miles wide, but millions of people live within that range in communities from the coast back to the PRB.

Communitywise Bellingham hired a consultant to determine what impact increased rail traffic would have on Bellingham. The resulting report concluded that area choke points required the addition of a siding in Bellingham, and the most feasible location virtually eliminates Boulevard Park. BNSF, in letters to area and state officials claims they have no “current plans” for track expansions, but in response to specific questions about how they will move that much additional freight and allow Amtrak full access, they respond that until they have contracts in hand for GPT and/or other proposed west coast terminals, they will not plan schedules or routes.

What particularly distinguishes the new second coal terminal is the open air, uncovered and unlined 80-acre coal pile 60 feet tall requiring constant spraying with water drawn from the Nooksack River for some dust suppression. Set back one-half mile from the shore, terminal proponents claim that the surrounding trees will act as a “wind buffer,” preventing “fugitive dust” blowing from the coal pile. This is a huge issue for surrounding communities given that Point Roberts has suffered coal dust accumulations from Westshore Terminals since that terminal began operations. A 2001 Canadian study determined 715 metric tons of dust escape Westshore annually (that terminal handles half the volume proposed at GPT, but its coal pile has a nearly identical footprint).

In a presentation to the Semiahnoo Men’s Club in Blaine, Craig Cole, a consultant for SSA, correctly noted that a Whatcom County condition for permits, under the Code, is that “No odors, dust, dirt, or smoke shall be emitted that are detectable at or beyond the property line, in such a concentration or of such duration as to cause a public nuisance, or threaten health and safety, or to unreasonably infringe upon the use and enjoyment of property beyond the boundaries of the district.” According to GPT’s multi-color 15-page handout, trees will serve as an “[e]xtensive natural buffer” because the undeveloped acres PIT owns will “remain in a natural state, providing habitat for wildlife and a buffer to the terminal activity.”

In 2011 and 2012, Oregon and Washington experienced five other coal terminal proposals, the largest of which would be a 44 million metric ton terminal in Longview. In total, several companies propose to ship 155 million metric tons of coal per year from the west coast. If permitted and operating at peak capacity, that would mean rail communities from the PRB to the coast could experience roughly 50 additional trains per day.

Terminal proponents claim that Bellingham and other Whatcom County communities on the coastal rail route will “get the trains” even if GPT is not permitted, because they will go to Canada if not to U.S. terminals. This myth persists in spite of debunking due to the fact that Canadian terminals are at capacity and most expansion there is only in the “talk” stage. Most expansion would occur in Prince Rupert at the existing Ridley Terminals (12 million metric tons per annum), and a theoretical fourth proposed terminal there, but Canadian mining companies do not want the capacity of Canadian terminals used for U.S. coal. Also, trains to Prince Rupert would, more than likely, go north from the PRB through Sweetgrass, Montana, into Canada and then to destination terminals, according to Eric dePlace of the Sightline Institute, based on recent talks with terminal operators in Prince Rupert.

In addition to coal, PIT has publicly hailed the benefits of GPT as an opportunity to export wheat, corn, and Washington crops and products. In reality, their permit application states they will build only the coal terminal in “Stage One.” Stage Two, at which time they would build the actual multimodal terminal, will not occur for at least ten years if at all, and PIT’s permit applications state it would initially probably handle only Canadian potash and BP’s calcined coke.

Other Impacts of the Coal Terminal and the Scoping Process

Permitting agencies did not discuss terminal impacts as part of the MAP Team permitting process. Their role was to coordinate agencies and the scoping process (discussed in more detail in the article in the main issue). After creation, the MAP Team met regularly for more than a year, until December 2011. Throughout 2012, the team has prepared quarterly reports summarizing the status of all permits, but now holds meetings only on an as-needed basis. (The team maintains a website with archived documents the public may access by e-mailing MAP Team Project Lead Scott Boettcher at scottb@sbgh-partners.com or calling (360) 480-6600 and requesting the User ID (“CherryPoint1”) and a password.)

In 2011 PIT filed for revised permits with Whatcom County. EarthJustice, an environmental law firm, immediately notified the county the permit applications were incomplete because PIT was actually applying to build a “new” terminal which introduced a new commodity – coal – and a volume roughly six times larger than that previously permitted. In June, the county returned the applications to PIT as incomplete and, in July, denied a request for reconsideration from the project proponents.

Also in 2011, three of the permitting agencies agreed to jointly conduct an EIS that would conform with the State (SEPA) and National (NEPA) Environmental Policy Acts. Those agencies, the permits they must issue, and their governing laws are:

Whatcom County, Major Development and Shoreline Substantial Development permits, State Environmental Policy Act;

ECOL, Sec. 401 Water Quality Certification, NPDES Gen’l Industrial Stormwater (SEPA);

U.S. Army Corps of Engineers (USACE), Clean Water Act Sec. 404, Rivers & Harbor Act Sec. 10, National Environmental Policy Act.

PIT re-filed permit applications with Whatcom County in 2012. This time, letters challenging the completeness of the application were submitted by Communitywise Bellingham, Safeguard the South Fork, and Protect Whatcom, among others. The three local grassroots groups argued neither PIT, nor BNSF in its JARPA application, described rail construction beyond the Custer Spur and were, therefore, incomplete.

Communitywise addressed possible upgrades that must be scoped in Bellingham; Safeguard the South Fork noted it had no way of knowing even if it should comment on potential rail impacts in the South Fork Valley because, while BNSF would not “rule out” using the inland route (particularly for returning empty trains), it would not say what routes it would use.

Protect Whatcom, in comments on the completeness of the application and subsequently, after a “key stakeholder” interview addressing “fairness” of the scoping process, argued for a preliminary rail traffic study to determine potential future cumulative impacts of all proposed terminals, after determining the most feasible shipping routes to those terminals, arguing that only with that information could regulators inform potentially impacted rail communities of possible rail upgrades (addition of tracks and sidings, necessity for land condemnations, traffic impacts at at-grade crossings, etc.). Protect Whatcom contends that meaningful notice requires informing all rail communities of direct impacts and the fact that, under federal law, the railroads need pay no more than five percent for overpasses, and little more for “quiet zones.”

In spite of arguments that the permit applications were incomplete due to their total silence about rail communities beyond the Custer Spur, Whatcom County issued a determination of completeness of the new permit applications in April. Subsequently, with EIS co-leads, the county signed a contract with a consultant, CH2M Hill, to conduct the EIS and, in turn, CH2M Hill will contract with any specialized consultants needed and not already staffed by their company. The agencies bill the project proponents for consultants’ fees and costs associated with any studies required, and pay CH2M Hill to assure as much as practicable the independence of the consultants.

CH2MHill created a website, www.eisgatewaypacificwa.gov, at which the public can learn about the project, make comments, and read the comments that others have submitted. According to the “Guide to participating in NEPA and SEPA scoping and upcoming scoping meetings” on the website, “All comments – whether … received by email, letter or in person – will receive the same consideration.”

When the EIS co-leads announced the opening of the comment period on September 24, they updated their websites, the Corps published notice in the Federal Register, and the SEPA co-leads published notice in the Bellingham Herald. They announced seven locations of “scoping meetings” at which the public may comment orally. Meetings are scattered around Washington, in Bellingham, Ferndale, Friday Harbor, Mount Vernon, Seattle, Spokane, and Vancouver. For a list of upcoming meetings, see http://www.eisgatewaypacificwa.gov/get-involved/upcoming-meetings .

Inexplicably, in spite of the fact that SEPA states an EIS should not limit impacts scoped to those which would occur within the jurisdiction of the permitting authority, or even the state, the agencies, including the Corps – a federal agency – stopped at the state line when scheduling scoping meetings. Undeterred, the Northern Plains Resource Council (NPRC), based in Billings, announced on their website that they “will work to ensure that the voices of Montanans are heard in the process, even if the agency won’t hold hearings in Montana.” (Read: Spokane, if you look out your window on December 4th, you will see a caravan arriving from the east to orally comment.)

NPRC is a member of Power Past Coal, a coalition of over a hundred environmental and grassroots organizations from all over the world which have come together to address the issue of massive exports of coal from places including U.S., British Columbia and Australia, galvanized or inspired by the efforts focused on addressing terminal proposals in the U.S. Pacific Northwest. Anchored by the Sierra Club and Climate Solutions, the coalition’s members – which include faith groups, physicians, and local citizens – represent what is certainly an unprecedented response to a proposed fossil fuel-related activity.

Comments on the proposed GPT will come from Montana, Alaska, British Columbia, Australia, and places probably unimagined, addressing impacts ranging from traffic impacts at at-grade rail crossings caused by the cumulative increased rail traffic due to the now five proposed coal terminals in Oregon and Washington (a sixth terminal proponent has opted to explore other commodities), to spill impacts on the environment and local outdoor recreation industry, and dozens if not hundreds of other issues.

The Wider Implications

In addition to significant impacts, the agencies have invited the public to comment on the “reasonable range of alternatives” and mitigations. It is important to note that a comment may address only a significant impact. But some may wish to address alternatives and mitigations.

SEPA requires consideration of three types of alternatives:

• the proposal including mitigation measures not included in the permit application;

• other “reasonable” courses of action; or

• no action.

To be “reasonable,” an alternative action “could feasibly attain or approximate a proposal’s objectives….” In other words, SEPA seems to state that the “purpose and needs” as stated in the permit applications should govern. Interestingly, in the JARPA application filed with the state, and which was the basis of the rejected “revised” permit applications with Whatcom County, PIT had described its purpose as addressing:

1. The need to ship bulk cargo to and from Asia and other markets to meet current and future market demand;

2. The need for deepwater, bulk marine terminals in the Puget Sound region; and

3. The need for community and economic development in Whatcom County consistent with the Whatcom County Comprehensive Plan for the Cherry Point Industrial UGA.

Gone, relative to the permit for the terminal proposed in 1992, is any reference to the future shipping needs of industry that might emerge in our “undeveloped industrial areas” needing to import and export “products.” This should matter to the county, because PIT owns 1,200 acres of our undeveloped land zoned heavy-impact industrial and has an option to purchase the rest, another 300 acres or so, referred to as the Cherry Point Industrial Park (CPIP), adjacent to the PIT property. With all undeveloped acreage now deemed “natural buffering” of wind to decrease fugitive dust escaping the 80-acre coal pile, gone is any potential for other industrial development at Cherry Point.

Further, coal terminals are the least labor intensive of all commodities according to a study conducted by Martin Associates for the Port of Baltimore in 2008. If the reason the county should support a terminal is to relieve unemployment in Whatcom County, then anything but coal would be better. PIT estimates it will provide a little over 200 permanent direct jobs at full operation (a .0014 percent contribution to the 70,000 jobs we already have in Whatcom County), and assuming there would be 1,000 indirect jobs, PIT is offering about one job per acre. According to industry estimates, warehouses provide more jobs per acre.

Between 2011 and 2012, before resubmitting their new permit applications, PIT re-crafted the purpose and needs statement to state it would address:

1. The need to ship bulk commodities to and from international markets to meet current and future market demand;

2. The need for a multimodal deep-water bulk marine terminal in the Puget Sound region; and

3. The need for community and economic development.

Gone is any reference to Asia, but what remains is essentially the stated purpose of the terminal permitted by Whatcom County in 1997. In the context of this project application, “no action” doesn’t mean “no action at all,” but, rather, the status quo, which is PIT actually completing the permitting process and obtaining the lease—assuming they can—for the 8.2 million metric ton real multimodal terminal proposed 20 years ago.

Buried deep in the SEPA regulations discussing alternatives is this directive: “The agency perspective should be that each generation is, in effect, a trustee of the environment for succeeding generations. Particular attention should be given to the possibility of foreclosing future options by implementing the proposal.” This is a remnant of The Public Trust Doctrine, an ancient common law precept that came to the colonies on the Mayflower but which is lying dormant, waiting for the public to revive it in permitting processes. It receives lip service from Ecology, which states that “[p]rotection of the trust is a duty of the State, and … [t]his requirement is fulfilled in major part by the planning and permitting requirements of the Shoreline Management Act.”

It is the Shoreline Management Act that governs the Shoreline Substantial Development permit Whatcom County must issue. Therefore, in the context of this permit application and the agencies’ mandate to consider no action or reasonable alternatives that allow the proponent to “feasibly attain or approximate [the] proposal’s objectives,” the purpose as stated by PIT is satisfied, and a lot of economic benefit derived from, building a terminal that does not handle coal.

The third alternative — permitting the proposal with conditions as mitigations — is a huge subject. Briefly, though, suffice it to say that while Whatcom County may not regulate the railroads or international shipping traffic, it can attach conditions to its permit. For example, while federal law may limit BNSF’s contribution to communities that will need over- or underpasses at at-grade crossings, one could argue that if a rail traffic study identifies a need due to this terminal or reasonably foreseeable future cumulative rail impacts caused by combined proposed terminal activity in Oregon and Washington, SSA Marine should reimburse communities for a proportional share of the cost based on their contribution to that impact due to their terminal operations.

NEPA calls the alternatives analysis the “heart” of the EIS. While the public need not address this subject – merely asking the agencies to scope an impact associated with an activity that would not occur but for the construction of GPT is a perfectly fine comment – the more who address the no action alternative, a reasonable alternative, or mitigations, the better the EIS should be.