Tribal Council member Annette Bryan of the Puyallup Tribe of Indians announced on Thursday evening that a Stop Work Order was issued against Puget Sound Energy (PSE.) She was addressing a rally organized by the Water Warriors in front of the Utlitilites Trade Commission in Olympia, WA.
The announcement was met with raised fists, cheers and whoops from the crowd. Many of the people present had been on the ground and working to defeat PSE’s proposed Liquid Natural Gas (LNG) facility from being built on the Tacoma Tideflats. Annette told everyone that she understood some people had been concerned with a lack of visible action from the tribe.
She told the crowd that the council was grateful for the efforts taken by the various groups and individuals that have stood on the tribe’s behalf.
Recently leaked legal documents show the extent of tribal opposition to the plant. They also outline the legal grounds the tribe is using to stop PSE building the plant.
The documents, which Native Daily Network has in hand, show how PSE and the Port of Tacoma have been out of compliance with several permit and regulation requirements.
The permits and regulations – that are considered to be deficient or in question are:
- Notice of Construction Permit. (NOC)
- Clean Water Act Section 404 Permit (404 Permit)
- Air Permit Regulations
- Shoreline Substantial Development Permit (SSPD)
- Coastal Zone Determination (CZ Determination)
- Final Environmental Impact Statement (FEIS)
Cease and Desist
The tribe has requested investigations and remedies from several entities until such time as compliance with these permits is met.
Those departments and requested remedies are:
- Dept. of Ecology – The tribe has requested the department to order PSE to Cease and Desist on all work at the facility until compliance is met.
- Puget Sound Clean Air Agency – PSCAA has been asked by the tribe to direct PSE to STOP all work at the LNG facility until a full review and order of approval is issued.
- The City of Tacoma – The city has been requested to take immediate action to enforce permit conditions causing a cease and desist until both PSE and the POT is in compliance with SSPD conditions.
- Army Corps of Engineers – The ACoE have been requested to rescind the 404 permit as PSE has failed to satisfy its conditions rendering it void.
Development Permits from the City of Tacoma
So now we look at how these violations have occurred. The trail starts with the issuance of the Shoreline Substantial Development Permit by the City of Tacoma. The SSDP became final on December 4th, 2015. This permit authorized certain work in connection with the LNG facility. The Tribe had requested reconsideration of the SSDP on December 3rd, 2015.
In response, the City issued an order that partially granted reconsideration and modified conditions of the SSDP’s approval.
The initial SSDP stated that the Authorization it granted was subject to all applicable federal, state and local laws, regulations and ordinances. It stated that if there wasn’t compliance that PSE and the Port of Tacoma (as applicants) agreed to ‘promptly bring such developments and activities into compliance.’
In the modified SSPD, a condition of approval was added that states the applicant must demonstrate that no additional federal or state permits are necessary or provide copies of approved permits. This is to be done before any development permit is issued.
So in simple terms, the SSDP was only valid if other conditions were met. So let’s look at those other conditions.
Clean Water Act
The applicant (PSE And the Port of Tacoma) applied to the Army Corps of Engineers for a section 404 permit under the Federal Clean Water Act (CWA) and a section 10 permit under the federal Rivers and Harbors Act. These are Corps permits and were meant to cover portions of the work that were authorized by the SSDP.
As part of that application, the Corps had the applicant obtain a Section 401 Certification and a Coastal Zone Management Act Section 307 Consistency Determination (CZ Determination) from the Dept of Ecology.
Ecology issued the 401 certifications on Sept 16th, 2016 and the CZ Determination on the 20th Sept. The Corps, in turn, issued their permits on Sept 27th of 2016 based on those two decisions.
At this point, the Puyallup tribe appealed both of the ecology decisions to the Pollution Control Hearing Board in a case which is still ongoing.
Notice of Construction
Anyway, this is where the rabbit hole gets deeper because the Dept of Ecology added a condition to the CZ Determination. This was that the project was subject to air quality permitting and that PSE and the Port would apply for a Notice of Construction Permit (NOC) from the Puget Sound Clean Air Agency.
That requirement was mentioned by the applicants in both their Coastal Zone Management form from January 2015 and via email in September 2016. This condition was never met. In fact PSCAA state on their website that, to date, they have not received a complete permit application.
The NOC is required for any construction activity in relation to the LNG facility – any.
So a quick catch up; The City of Tacoma issue a permit for the facility. This permit had some specific conditions. These conditions have not yet been met. Construction on the facility cannot occur until all the conditions are met.
Environmental Impact Statement
Still with us? Good. So we now know that without a completed and approved NOC, the Section 404 Clean Water Permit is VOID. If that is void, the SSDP is void. This means that PSE and the Port are breaking mandatory federal and state laws in even continuing construction.
The PSCAA (who we thank for their diligence) expressed concerns that the incomplete application for the NOC doesn’t address emissions. Further, the NOC application is inconsistent with the Final Environmental Impact Statement (FEIS.) These inconsistencies have long been the subject of debate.
They are also why the tribe and activists have asked for a supplemental EIS (SEIS.) The contention is that the plan for the LNG project has changed substantially since the original proposal.
The FEIS was issued by the City of Tacoma, the lead agency in the State Environmental Policy Act (SEPA.)
Public Comment Period
In regards to the Notice of Construction, the PSCAA website also states:
‘Due to expected public interest, there will be a public comment period available for this application after the Agency completes a thorough review. Prior to the public comment period, the Agency will be having a public information meeting. The public information meeting will be scheduled once a complete permit application is received and our engineer has done an initial review of that application.’
This is a potentially long process. The review itself could take several months and the public comment period will also take several months.
A SEIS would also see a new period of public comment and scrutiny. Meeting either of these requirements could potentially kill the project.
PSE and the Port of Tacoma will almost certainly know this. Continuing with work, however, seems to be a strategy employed by the Fossil Fuel industry.
Part of the rush from Energy Transfer Partners (ETP) to build the Dakota Access Pipeline was to argue in court that the project had already been built and stopping it would cause substantial harm to the corporation and its investors. The court, in that case, showed no sympathy for ETP and we would likely see a similar result here.
What, When and How
So now the agencies have to respond to the documents and legal briefs filed on behalf of the tribe. The Tribal Council has made clear its intentions and has been incredibly careful to make sure all details are correct before playing their hand.
It appears as if the City of Tacoma did what was required of them to the point of issuing both the FEIS And the SSDP. However, in light of changed parameters to the project and as the lead SEPA agency, they do have a right to request a SEIS. They also need to issue a Cease and Desist until the conditions mentioned in the SSDP are met.
The PSCAA are waiting for PSE and the Port of Tacoma to file completed applications for air quality and NOC.
Conditions in the CZ Determination from the Dept. of Ecology required both of the above permits to be completed.
The ACoE needs to rescind its approvals as they are void due to those conditions not being met.
It’s going to be an interesting week ahead. Enforcement of the Stop Work Orders must begin immediately to satisfy the briefs. We thank the Puyallup Tribal Council for their earnest work.