July 29, 2015

Chris Wilke, Puget Soundkeeper (206) 297-7002;
Marcie Keever, Friends of the Earth (510) 900-3144;
Fred Felleman (206) 595-3825;
Wendy Steffensen, RE Sources for Sustainable Communities (360) 733-8307

Ruling seen as a precedent for other facilities throughout the state

OLYMPIA, WA—On Tuesday July 28, the Court of Appeals for the State of Washington published its opinion on an appeal challenging the wastewater discharge permit issued to BP West Coast Products LLC’s oil refinery at Cherry Point, ruling strongly in favor of clean water advocacy groups. The appeal was filed by Puget Soundkeeper, RE Sources for Sustainable Communities, and Friends of the Earth.

The court’s ruling will tighten restrictions on wastewater discharges from BP’s oil refinery and set a precedent for oil refineries and other major industrial facilities statewide. The Washington Department of Ecology (Ecology) is now required to revise the pollution discharge permit for BP’s facility to state that all violations of whole effluent toxicity (WET) tests constitute violations of the Clean Water Act. Whole effluent toxicity is a measurement of the aggregate impact of all pollutants in a sample of wastewater on living aquatic organisms, and is a crucial component of water quality standards implementation and the only tool available for permit managers to assess the toxic interaction of pollutants.

“The WET test ruling is a major victory”, said Chris Wilke, Executive Director of Puget Soundkeeper. “A failed WET test confirms that the effluent is in fact lethal to fish species. This is not OK for the beleaguered herring at Cherry Point or for Puget Sound as a whole, and now this will be written into BP’s permit as an enforceable violation.”

The ruling sets a key precedent in the way wastewater is regulated, especially from oil refineries and other facilities where high levels of toxic compounds are found. In its decision, the Court acknowledged that Ecology’s interpretation of the WET rule would have allowed BP’s refinery to discharge wastewater to local waterways that was known to be toxic to fish and other species, and stated that this interpretation was not in keeping with the trust established in the State Environmental Policy Act.

“It’s very gratifying to have the state Court of Appeals give effect to the strong substantive mandates of state environmental statutes, which are so often glossed over by the Department of Ecology in its efforts to accommodate polluters’ interests,” said Richard Smith, of Smith & Lowney, PLLC, lead attorney for the plaintiffs. “Finally, we have a state court saying that state law allowing water quality standards violations by dischargers ‘in no event’ is actually a prohibition by which Ecology must abide.”

Department of Ecology is delegated by the EPA to implement the federal Clean Water Act and must also comply with federal rules to maintain the integrity of public waters.

“We are thrilled that the appeals court ruled in favor of Clean Water Act protection. Now the State of Washington isn’t allowed to let BP and other industrial polluters off the hook for Clean Water Act violations,” said Marcie Keever, legal director at Friends of the Earth.

BP’s Cherry Point refinery is the largest in the state capable of processing 230,000 bbl./day and allowed to legally discharge tons of pollutants annually into the Cherry Point Aquatic Reserve near the Canadian border, which is sensitive habitat for Pacific herring. Herring are an essential food source for birds, mammals, and larger fish, and the Cherry Point herring population is identified as crucial for recovering Chinook salmon and Southern Resident Orca Whales. The herring population has declined by 90 percent since 1973. The oil refinery began operation in 1971.

Soundkeeper and partners were represented in this appeal by Richard Smith and Elizabeth Zultoski, Smith & Lowney PLLC.


Puget Soundkeeper is a citizen advocacy group whose mission is to protect and preserve the waters of Puget Sound. Established in 1984, Soundkeeper is a founding member of the international Waterkeeper Alliance.

Friends of the Earth fights to create a more healthy and just world. Our current campaigns focus on promoting clean energy and solutions to climate change, ensuring the food we eat and products we use are safe and sustainable, and protecting marine ecosystems and the people who live and work near them.

RE Sources for Sustainable Communities promotes sustainable communities and protects the health of northwestern Washington people and ecosystems through application of science, education, advocacy and action.