honorable james l. robart

PLAINTIFF’S TRIAL BRIEF - 1

2:14-CV-00829JLR

Smith & Lowney, p.l.l.c. 2317 east john street

Seattle, Washington 98112 (206) 860-2883

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HONORABLE JAMES L. ROBART

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PUGET SOUNDKEEPER ALLIANCE,

Plaintiff,

v.

RAINIER PETROLEUM CORP.,

Defendant,

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No. 2:14-cv-00829

PLAINTIFF’S TRIAL BRIEF

Plaintiff Puget Soundkeeper Alliance (“Soundkeeper”) respectfully submits this trial brief

in support of the evidence and arguments it will present at trial.

I. INTRODUCTION.

The Court has already found that Defendant Rainier Petroleum Corporation (“Rainier

Petroleum”) repeatedly violated numerous provisions of its Clean Water Act permit regulating

discharges of industrial stormwater from its Pier 15 facility to Elliott Bay. Dkt. 75. At trial,

Soundkeeper will prove the appropriate remedies for Rainier Petroleum’s persistent violations of

the Clean Water Act (“CWA”), focusing on penalties and injunctive relief.

Case 2:14-cv-00829-JLR Document 92 Filed 01/04/16 of 25


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Rainier Petroleum’s conduct warrants a substantial civil penalty. Despite its significant

financial resources, Rainier Petroleum has flagrantly violated its CWA permit (the “Permit) ever

since it obtained permit coverage in 1996. Its violations contributed to water quality violations

and sediment pollution in one of our most important waterbodies and a key waterway for

migrating salmon. Its refusal to comply with the Permit’s secondary containment requirements

place Puget Sound at continuous risk of a catastrophic oil spill – an event that has been avoided

by mere luck and despite Rainier Petroleum’s disregard for the law. The motivation for these

violations is no mystery. Rainier Petroleum, a subsidiary of a lucrative multinational

corporation, enjoyed significant economic benefits from its noncompliance at the expense of the

environment.

Soundkeeper asks the Court to impose a penalty of $7 million. This penalty amount is

necessary to deter Rainier Petroleum and other large corporations that otherwise view penalties

as a mere cost of doing business. This penalty amount is also appropriate given Rainier

Petroleum’s recalcitrance and contempt for the law.

Soundkeeper also asks the Court to issue appropriate injunctive relief to ensure that

Rainier Petroleum ceases its illegal toxic discharges, complies with the Permit’s pollution

prevention and monitoring requirements, and immediately abates the catastrophic risk of an oil

spill by complying with the Permit’s secondary containment requirements. Rainier Petroleum’s

must bear the costs to finally come into compliance with the Permit in addition to the mandatory

civil penalty; anything less would reward Rainier Petroleum for its violations of the CWA.



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II. THE COURT SHOULD ASSESS CIVIL PENALTIES TO DETER RAINIER

PETROLEUM FROM FURTHER VIOLATING THE CWA.

The central purpose of CWA penalties is deterrence—both to the specific violator and

generally to the regulated community. Catskill Mtns.. Ch. of Trout Unltd., Inc. v. City of New

York, New York, 244 F.Supp.2d 41, 48 (N.D. N.Y. 2003); and see Tull v. United States, 481 U.S.

412, 422 (1987) (“The legislative history of the [CWA] reveals that Congress wanted the district

court to consider the need for retribution and deterrence, in addition to restitution, when it

imposed civil penalties.”). If the regulated community perceives that violations are treated

lightly, the CWA regulatory program will be subverted. See United States v. Mun. Auth. of

Union Township, 929 F.Supp. 800, 809 (M.D. Pa. 1996).

Soundkeeper asks the Court to impose a minimum civil penalty of $7 million upon

Rainier Petroleum. While the evidence and law would justify a much higher penalty

Soundkeeper believes that a minimum $7 million penalty, coupled with injunctive obligations, is

sufficient to achieve the deterrence purposes of the Act.

A. The Court Should Conclude That a Minimum Civil Penalty of $7 Million is

Warranted.

The first step in a civil penalties analysis is for the Court to calculate the maximum

penalty authorized for the violations. The CWA authorizes civil penalties up to $37,500 per

violation per day. 33 U.S.C. §§ 1319(d), 1365(a); 40 C.F.R. § 19.4 (inflation adjustment

commencing January 12, 2009). The second step is for the Court to determine whether any

reduction from the maximum penalty is justified using the “penalty factors” listed in section

309(d) of the CWA.1 Atl. States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1142

1 This approach—known as the “top-down approach”—is used by a majority of courts. E.g., Sierra Club v. Cedar

Point Oil Co., Inc., 73 F.3d 546, 573 (5th Cir. 1996); Ctr. for Biological Diversity v. Marina Point Dev. Assocs., 434

F.Supp.2d 789, 798-99 (C.D. Cal. 2006), rev’d on other grounds, 566 F.3d 794 (9th Cir. 2009); Catskill Mtns. Ch. of



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(11th Cir. 1990). Some courts presume that the maximum penalty should be imposed. See

Pound v. Airosol Co., Inc., 498 F.3d 1089, 1095 (10th Cir. 2007) (applying similar provisions of

the Clean Air Act (“CAA”)).2 If a court chooses not to impose the maximum penalty, it should

clearly indicate the weight it gives to each of the penalty factors and the factual findings that

support its conclusions. Atl. States Legal Found., 897 F.2d at 1142.

1. A $7 Million Penalty is Only a Small Fraction of the Maximum Penalty for

Rainier Petroleum’s 5,500 Permit Violations.

The Court calculates the number of violations and the maximum penalty as a matter of

law using simple rules adopted by the federal courts, as described below. The maximum penalty

is determined by adding the number of daily violations for each distinct violation. See Borden

Ranch P’ship v. United States Army Corps of Eng’rs, 261 F.3d 810, 817-18 (9th Cir. 2001). A

separate penalty is imposed for each violation, even when multiple violations occur on the same

date. United States v. Smithfield Foods, Inc., 191 F.3d 516, 527-28 (4th Cir. 1999) (this rule is

critical to create “proper incentives,” since otherwise “[o]nce one effluent limit was violated,

there would be no reason for the permittee to heed the rest of the permit limits for that day.”)

i. Rainier Petroleum is liable for over 5,500 distinct violations found

in the Court’s summary judgment Order.

Trout Unltd, Inc. v. City of New York, New York, 244 F.Supp.2d at 48; Cmty. Ass’n for Restoration of the Env’t v.

Henry Bosma Dairy, No. CY-98-30110EFS, 2001 U.S. Dist. LEXIS 3579, at *24-25 (E.D. Wash. Feb. 27, 2001);

Hawaii’s Thousand Friends v. City & County of Honolulu, 821 F.Supp. 1368, 1394-95 (D. Haw. 1993). However, a

minority of courts apply what is known as the “bottom-up approach.” E.g., United States v. Smithfield Foods, Inc.,

972 F.Supp. 338, 354 (E.D. Va. 1997), rev’d on other grounds, 191 F.3d 516 (4th Cir. 1999). Under the bottom-up

approach, the economic benefit to the violator resulting from the violations is determined first, and then the other

penalty factors are applied to adjust that amount as appropriate. Smithfield Foods, 972 F.Supp. at 354. 2 See also Sierra Club v. Khanjee Holdings (US), Inc., 655 F.3d 699, 707 (7th Cir. 2011) (also applying similar

provisions of the CAA). Courts commonly interpret similar statutory provisions contained in the several federal

environmental statutes consistently. See, e.g., Sackett v. United States Envtl. Prot. Agency, 622 F.3d 1139, 1144

(9th Cir. 2010) (noting that the CWA enforcement provisions were modeled on those contained in the CAA).



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Rainier Petroleum is subject to a separate penalty assessment for each day within the

statute of limitations “that Rainier has violated the Permit by failing to install an impervious

floor in its tank farm,” Dkt. 75 at 31-32 (citing 2010, 2015 and 2002 Permits). Thus, Rainier

Petroleum is subject to 2,470 days of penalty assessments for its tank farm violation. See Sierra

Club v. City & County of Honolulu, No. 04-00463 DAE-BMK, 2007 U.S. Dist. LEXIS 80452, at

*6, 33-34 (D. Haw. Oct. 30, 2007) (assessing separate daily penalty for each day defendant failed

to install a pollution control device beyond the permit deadline).

Rainier’s violation of the permit requirement that it monitor all distinct points of

discharge offsite on a quarterly basis and report the findings to Ecology accrue on a quarterly

basis. See Dkt. 75 at 33 (citing 2010 Permit at 20-22; 2015 Permit at 18-20.) Multiplying Rainier

Petroleum’s eleven unmonitored outfalls by the twenty three quarters it failed to monitor and

report between first quarter 2010 and third quarter 2015 yields a total of 253 distinct violations

subject to penalty assessment. Similarly, Rainier violated the Permit by failing to collect

samples from the one outfall it designated as its monitoring point in at least fifteen quarters,

which result in another 15 distinct violations subject to penalty assessment See Dkt. 75 at 34-35.

Rainier Petroleum’s failure to submit 2013 and 2014 annual reports, Dkt. 75 at 37, failure

“to document monthly inspections in 2010, 2011, 2012, 2013, and September 2015,” and failure

to sign and certify its monthly inspection reports for January 2014 through August 2015, Dkt. 75

at 36, constitute at least 71 distinct violations subject to penalty assessment, employing the most

conservative method of counting one violation per missing or deficient report. Compare

Smithfield Foods, 965 F. Supp. at 782 (finding each day a report was late constitutes a separate

violation).



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The Court found Rainier Petroleum liable for failing to complete 6 distinct Level 1

corrective actions: zinc in 2009, zinc in 2012, copper in 2013, zinc in first quarter 2015, copper

in first quarter 2015, and copper in second quarter 2015. The copper and zinc Level 1 violations

in first quarter 2015 are appropriately treated as two separate violations though they were

triggered by the same sample. See Idaho Conservation League v. Atlanta Gold Corp., 879 F.

Supp. 2d 1148, 1166 (D. Idaho 2012) (It is “appropriate to treat the violations for the effluent

limitations of arsenic and iron separately.”); Smithfield Foods, Inc., 191 F.3d at 527 (“If multiple

violations of the Permit occur on the same day, defendants are liable for a separate day for each

violation of the Permit.’”) This, again, is the most conservative method of counting distinct

violations. See, e.g., City & County of Honolulu, 486 F.Supp.2d at 1191-92.

Rainier Petroleum’s violations of the Permit’s prohibition on discharges that contribute to

violations of water quality standards, Dkt. 75 at 41, accrue at least each day that stormwater

discharges from the Pier 15 facility. See Puget Soundkeeper Alliance v. Rainier Petroleum Corp.,

No. 2:14-cv-00831RSM, 2015 U.S. Dist. LEXIS 135709, at *30 (W.D. Wash. Oct. 5, 2015)

(“Each discharge constitutes a separate violation” of Permit condition S10). Soundkeeper will

prove at trial that stormwater discharged from the Pier 15 facility on at least 566 days within the

statute of limitations period.

Finally, Rainier Petroleum’s failure to prepare and implement a SWPPP according to

permit requirements3 is subject to separate daily penalty assessments for each day the violations

continued. See Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 991-1002

(9th Cir. 2000) (upholding a penalty assessment for 799 days of violations related to the failure

3 See Dkt. 75 at 41 (SWPPP lacks BMPs necessary to ensure that discharges do not violate water quality standards),

42 (SWPPP not modified and recertified in response to benchmark exceedances), 43 (SWPPP site map and sampling

plan deficient), 44 (SWPPP deficient as to employee training).



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to prepare and implement an adequate SWPPP). Rainier’s SWPPP violations have persisted at

least since the 2010 Permit went into effect on January 1, 2010, i.e., 2,201 days. See Dkt. 81 at 8

(agreed fact 34) (2010 SWPPP unchanged).

In total, the Court found Rainier Petroleum liable for at least 5,582 distinct violations

each subject to a maximum penalty of $37,500, totaling over $200 million.

Violation Number of

violations

Pervious tank farm bottom 2,470

Failure to monitor 9 pier discharge points. 207

Failure to monitor 2 roof discharge points. 46

Quarters failed to sample at outfall 001 15

Failure to submit annual reports 2

Failure to documenting monthly inspections 49

Deficient monthly inspection reports 20

Failure to complete 2009 Level 1 1



Failure to complete 1st quarter 2015 Level 1 (Cu) 1

Failure to complete 1st quarter 2015 Level 1 (Zn) 1

Failure to complete 2nd quarter 2015 Level 1 1

Water quality standards violations 566

Deficient SWPPP 2,201

Total 5,582



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2. Application of the CWA Penalty Factors Warrants a Reduction of the

Maximum Penalty to No Less Than $7 Million.

The CWA directs the Court to consider the “penalty factors” addressed below when

determining whether to reduce the maximum penalty amount. See 33 U.S.C. § 1319(d).

Application of these factors here reinforces the need for a substantial penalty, but mitigating

factors justify reducing the maximum penalty to $7 million.

i. Rainier Petroleum’s violations are serious.

“To determine the seriousness of a defendant’s violations, the Court should consider ‘the

frequency and severity of the violations as well as their effect on the environment.’” Catskill

Mtns.. Ch. of Trout Unltd, Inc., 244 F.Supp.2d at 49-50. However, actual harm to the

environment need not be proven to justify substantial penalties. See Mun. Auth. of Union

Township, 929 F.Supp. at 807; United States v. Gulf Park Water Co., 14 F. Supp. 2d 854,

861 (S.D. Miss., 1998).

Rainier Petroleum’s violations are serious on virtually every level.

Rainier’s discharges of heavy metals contribute to violations of water quality standards in

Elliott Bay, in violation of the bedrock CWA prohibition on discharges of toxic pollutants in

toxic amounts. See, e.g., Defs. of Wildlife v. Browner, 191 F.3d 1159, 1165 (9th Cir. 1999). As

Soundkeeper’s expert Dr. Horner will testify, Rainier’s recent discharges show copper

concentrations that are more than ten times the level toxic to salmon. Soundkeeper’s members

have witnessed and will testify that salmon gasp for air and die because of stormwater pollution

in Puget Sound waterways, frequently before those fish are able to spawn.



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Rainier’s toxic discharges continue unabated because Rainier has not completed any of

the six required corrective actions it has triggered in past years. Even after a year of litigation,

Rainier continues to demonstrate at best a casual and at worst a contemptuous regard for Permit

requirements when it ignored the Level 1 corrective action requirements its polluted discharges

compelled over the last several months. When a permittee does not promptly address violations

when it is being scrutinized in federal litigation, it needs strong incentives to comply when it is

not being watched.

Rainier’s longstanding violation of the Permit’s most basic spill prevention requirement –

secondary containment for its 82,250 gallon lube oil and oil-contaminated stormwater tank farm

– is extremely serious because of the daily catastrophic risk it poses to the immediately adjacent

Elliott Bay. See Gulf Park Water Co., 14 F. Supp. 2d at 862 (court may justifiably impose a

significant penalty if it finds there is a risk or potential risk of environmental harm, even absent

proof of actual deleterious effect). Soundkeeper will prove at trial that Rainier’s tanks are at the

end of their serviceable life, that accidental overtopping of the tanks could result in lube oil

spilling at a rate of 200 gallons per minute, and that any lube oil spill in the tank farm would

quickly reach Puget Sound given the gravel base of the tank farm and its connection to Elliott

Bay, at which point it would be too late to protect marine life from the oil’s toxic effects. As the

Ninth Circuit has recognized, just the risk of an oil spill in Puget Sound is serious. Ocean

Advocates v. U.S. Army Corps of Eng'rs, 361 F.3d 1108, 1119-20 (9th Cir. 2004) (risk of an oil

spill jeopardizes a wide variety of interests and must be analyzed as “[a]n oil spill would cause a

markedly decreased opportunity” for wildlife observation and recreation).

However, Soundkeeper recognizes that the seriousness of Rainier’s spill containment

violations is partially mitigated through Rainier Petroleum’s sheer luck that a spill has not yet



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occured. Had Rainier Petroleum’s tank farm ruptured, causing a catastrophic oil spill,

Soundkeeper would undoubtedly be calling for the maximum penalty. That this has not yet

occured brings Soundkeeper to the requested $7 million penalty.

Rainier Petroleum’s extensive violations of the Permit’s monitoring requirements are also

very serious because they flout the core of the entire regulatory scheme and enabled Rainier to

evade the Permit’s corrective action requirements. Courts recognize that the NPDES permit

program fundamentally relies on accurate self-monitoring and self-reporting by dischargers.

Sierra Club v. Union Oil Co. of Cal., 813 F.2d 1480, 1491-92 (9th Cir. 1987), vacated on other

grounds, 485 U.S. 931 (1988), reinstated with minor amendment, 853 F.2d 667 (9th Cir. 1987)4

Rainier has never monitored eleven of its twelve discharge points and failed to monitor even its

single monitoring point in seventy percent of the quarters during the statute of limitations period.

This is a record of a permittee who is not trying, does not care, and is treating its permit as a

regulatory nuisance. Before Soundkeeper filed suit, Rainier’s historically poor sampling

practices showed a worsening trend. Tellingly, after Soundkeeper filed suit and for the first time

in over a decade Rainier finally sampled its one monitoring point in three consecutive quarters,

and it immediately triggered the Permit’s highest corrective action requirement of installing

stormwater treatment.

4 See also Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109, 1115 (4th Cir. 1988) (finding that the reporting

requirements of a NPDES permit “are central to adequate administration and enforcement of limits on substantive

discharges” and upholding a $130,000 penalty for monitoring and recordkeeping violations); Save Our Bays &

Beaches v. City & County of Honolulu, 904 F.Supp. 1098, 1105 (D. Haw. 1994) (“A critical part of the regulatory

scheme is a strict self-reporting system requiring permittees to monitor carefully their permit compliance…”).



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ii. Rainier Petroleum is enjoying a significant economic benefit from its

violations.

In the CWA penalty factor context, economic benefit means the financial gains that

accrue through delayed and/or avoided compliance expenditures. Idaho Conservation League v.

Atlanta Gold Corp., 879 F. Supp. 2d at 1167. Extracting the economic benefit of non-

compliance is an important first step to ensure that a company cannot simply write off the

penalty as a cost of doing business. See, e.g., id. at 1169.

As Soundkeeper’s economic expert Mr. Shefftz will testify, even assuming Rainier

Petroleum immediately implements the measures necessary to correct its violations and comply

with the Permit, it will have enjoyed a nearly $1 million economic benefit as a result of the

expenditures it delayed or avoided through its Permit violations. Soundkeeper will prove that its

estimate of economic benefit is conservative, because, among other things, it does not include

the cost of every applicable compliance measure, and because it only accounts for the economic

benefit during the statute of limitations period, while Rainier Petroleum’s violations date much

further back than the statute of limitations allows the Court to reach for liability.5

Rainier’s million dollar economic benefit from illegal activity warrants no more of a

reduction from the maximum penalty than the $7 million penalty Soundkeeper requests. This is

approximately seven times the economic benefit. As Mr. Shefftz will explain, a penalty that

does more than extract the economic benefit is necessary to create an economic deterrent against

future violations, which is a key purpose of civil penalties. Tull v. United States, 481 U.S. at

422.

5 “Since it is difficult to prove the precise economic benefit to a polluter, a reasonable approximation of economic

benefit is sufficient.” Smithfield Foods, 972 F. Supp. at 348.



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iii. Rainier Petroleum’s long history of violations.

In evaluating the “history of violations” penalty factor, the Court should consider both

past violations and the duration and continuity of present violations. See, e.g., Catskill Mtns, 244

F.Supp.2d at 52. The Court should also consider the history of similar violations at Rainier

Petroleum’s other Seattle facility and at its sibling company’s facility in California. Pub. Interest

Research Grp. v. Hercules, Inc., 830 F. Supp. 1525, 1545 (D.N.J. 1993) (the “history of

violations” factor “easily includes” violations at defendant’s other facilities) rev’d in part on

other grounds, 50 F.3d 1239 (3rd Cir. 1995). The Court may consider the history and seriousness

of Rainier Petroleum’s violations together, and in doing so the Court may weigh all of the

violations in the record, not just those for which liability is determined. See Mun. Auth. of Union

Township, 929 F. Supp. at 807. Specifically, the Court’s inquiry is not confined to violations

within the statute of limitations period. United States v. Allegheny Ludlum Corp., 187 F.Supp.2d

426, 445-6 (W.D. Penn. 2002) (penalty calculation considering nearly 20 years of compliance

history because “[t]he permittee’s complete history of compliance with the Act affords the most

useful picture for setting a current penalty”).

Soundkeeper will introduce evidence of Rainier’s Pier 15 facility’s very long history of

Permit violations, including SWPPP violations dating back to 1997, and water quality standards

violations dating back to the time the Permit began requiring permittees to sample.

Soundkeeper’s evidence will show that Rainier’s other Seattle facility’s history of similar

CWA violations dates back to the start of Rainier’s operations there.

In addition, Soundkeeper will show that Rainier Petroleum’s sister company has a history

of CWA violations relating to unpermitted discharges of industrial stormwater from its dockside

fueling and petroleum storage facility and inadequate secondary containment, in a pattern



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depressingly similar to its conduct at Pier 15. This evidence will show that Rainier’s violations

are part of a long, company-wide history of casual disregard for the CWA – even when penalized

by federal enforcement authorities.

Application of this factor does not justify reducing the penalty below $7 million.

iv. The economic impact of the penalty on Rainier Petroleum.

Rainier’s financial resources do not warrant any reduction in a penalty on account of the

company’s inability to pay. Rather, the company’s size warrants a substantial penalty to

adequately deter such a large corporation, as a penalty must be big enough to deter the company

from future violations. Catskill Mtns., 244 F.Supp.2d at 48; and see Tull, 481 U.S. at 422. “To

achieve the goal of deterrence, a penalty must be high enough so that the discharger cannot

‘write it off’ as an acceptable environmental trade-off for doing business.” Hawaii’s Thousand

Friends, 821 F.Supp. at 1394.

The defendant bears the burden of demonstrating “that the impact of a penalty would be

ruinous or otherwise disabling.” Gulf Park Water Co., 14 F. Supp. 2d at 868. "Where a violator

cannot show that a penalty will have a ruinous effect, the economic impact factor under [33

U.S.C. § 1319] will not reduce the penalty." Id.

Rainier Petroleum is owned by Maxum Petroleum and Pilot Thomas Logistics. Dkt. 81 at

18 (agreed fact 91). Under unanimous precedent, the Court should look to the parent companies’

financial health in determining Rainier’s ability to pay. Atlanta Gold Corp., 879 F. Supp. 2d at

1170 (“…the assertion that a parent corporation’s assets cannot be considered in assessing a

[CWA] penalty is contrary to every case of which this Court is aware.”); United States v. Mun.

Auth. of Union Township, 150 F.3d 259, 268 (3rd Cir. 1998). The defendant in Union Township

argued that the district court committed legal error in considering the financial condition of its


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parent corporation because the parent was not a party to the lawsuit, did not violate the CWA,

and there was insufficient evidence to pierce the corporate veil. Id. The Third Circuit rejected

these arguments, noting that the district court did not pierce the corporate veil and assess a

penalty directly against the parent. Id. Rather, the court appropriately considered the parent’s

assets in evaluating the defendant’s ability to pay a penalty—i.e., in considering the economic

impact of the penalty. Id.; see also United States v. Allegheny Ludlum Corp., 187 F.Supp.2d 426,

445-46 (W.D. Pa. 2002) (consideration of parent company’s assets and stockholder’s equity is

appropriate in CWA lawsuit); PIRG v. Powell Duffryn Terminals, Inc., 720 F.Supp. 1158, 1166

(D. N.J. 1989) (rejecting defendant’s argument in a CWA suit that it is in poor economic

condition given the financial condition of defendant’s parent), rev’d in part on other grounds,

913 F.2d 64 (1990).

Rainier has withheld financial information regarding its parent companies.

Notwithstanding Rainier discovery non-compliance, Soundkeeper will show that Maxum

Petroleum recently reported $4.5 billion in revenue. See Dkt. 81 at 20. Evidence at trial will also

show that Rainier Petroleum and Maxum are essentially a single entity, that Maxum routinely

provides Rainier with financial support, and that Rainier’s parent company or insurer will pay

the penalty imposed upon Rainier.

v. Good-faith efforts to comply and other matters as justice requires.

The final two CWA penalty factors, “good faith efforts to comply” and “other matters as

justice requires,” provide the Court with broad discretion to consider other issues it deems

relevant to civil penalties. Such matters may include the bad-faith conduct of the violator and its



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attitude towards achieving compliance. Smithfield Foods, Inc., 972 F.Supp. at 353.6

Consideration of such matters here strongly supports the $7 million penalty request.

a. Rainier Petroleum’s lack of good-faith efforts to comply.

Although Rainier Petroleum’s entire business is handling high-risk petroleum products

and it is part of a very large and sophisticated corporate enterprise that controls dockside

distribution of such toxic products nationwide, its efforts to comply with the CWA have been

substandard for even the tiniest mom-and-pop outfit. Evidence at trial will show that prior to

2014, Rainier Petroleum made almost no effort to comply with the Permit.

Even after Soundkeeper filed a lawsuit, Rainier Petroleum made no effort to correct even

the violations to which it readily admitted. Rainier Petroleum only hired a stormwater consultant

because of this suit – it never sought professional help before – but then it largely ignored its

own consultant’s recommendations to do basic things like train its employees, who were

admittedly “confused” about how to comply with the permit.

Most disturbing is that Rainier’s parent company, Maxum, made one employee, Robert

Barnes, responsible for Permit compliance at two Rainer facilities but gave him absolutely no

training or support. Evidence will show that Mr. Barnes was simply overwhelmed when he was

handed the SWPPP with no further instruction, much less the training required by the Permit. To

Mr. Barnes’s credit, in October 2015 he took a helpful class in Permit compliance, after over a

year of trying to fit it in with his other obligations. But this is not Mr. Barnes’s Permit; CWA

compliance is the company’s responsibility and it has not tried to comply. Indeed, at the class

Mr. Barnes learned that Rainier Petroleum needs serious help, and repeatedly implored Maxum

6 See also Piney Run Pres. Ass’n v. County Comm’rs of Carroll County, 82 F.Supp.2d 464, 472 (D. Md. 2000), rev’d

on other grounds, 268 F.3d 255 (4th Cir. 2001).



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executives to hire full time personnel dedicated to Permit compliance. Despite the pending

litigation and two Court orders finding both Rainier Petroleum facilities liable for a litany of

significant violations, despite its own consultant’s recommendations, and the pleas from Mr.

Barnes, Rainier’s parent company’s executives have not even responded to Mr. Barnes’s

repeated requests for help.

b. Rainier Petroleum’s contempt for the law.

Throughout this litigation Rainier Petroleum has displayed contempt for the CWA,

citizen enforcement, and the Court by remaining willfully ignorant of its CWA obligations,

concealing information, and lying about its activities and the cost of the simple measures

required to bring the facility into compliance.

Most egregious is that Rainier Petroleum repeatedly lied to the Court and to Soundkeeper

so as to obstruct an efficient resolution of this case. Early on in the case, Rainier refused to

implement Soundkeeper’s proposed remedies for the facility’s tank farm and pier, claiming they

would cost “more than $2 million dollars.” Dkt. 17 at 17.

This case is heading to trial because Rainier sabotaged the Court-ordered mediation.

Soundkeeper told Rainier that the mediation would be futile unless Rainier came to mediation

with an understanding of the costs to remedy its violations at the tank farm and pier. Dkt. 55, ¶

3. Rainier refused to obtain an actual bid, causing the mediation to fail and forcing this case to

be resolved at trial – wasting the resources of this Court and the parties. Id.

Rainier then sought to delay trial based on its claim to the Court that Soundkeeper’s

expert’s “proposed solution is under-engineered and the cost is grossly under estimated.” Dkt.

60 at 2. See also Dkt. 48 at 2; Dkt. 49, ¶ 5 (Bilanko Decl.). Rainier offered no evidence

supporting its claims at the time it made these representations to the Court. See id.



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Indeed, Rainier misled the Court in claiming that Soundkeeper’s paving proposal was

“under-engineered” and its costs “grossly under estimated.” When Rainier final got a bid, the

cost was roughly comparable to Soundkeeper’s estimate and a pittance compared to Rainier’s

false cry of $2 million. Had Rainier had timely obtained this bid rather than playing games and

exaggerating to the Court, this case could have settled many months ago.

Rainier’s conduct underscores that it has treated CWA compliance more like a game in

which one can cheat than an important federal requirement. Indeed, at trial Soundkeeper expects

Rainier to argue that Soundkeeper’s compliance cost estimates – which are considerably lower

than $2 million – are overstated! The penalty should take into account the need to deter

polluters from wasting party and judicial resources instead of directly addressing and funding

CWA compliance.

Rainier’s misrepresentations are not limited to remedies. In a futile attempt to avoid

responsibility for the stormwater that discharges from Rainier’s pier to Elliott Bay without any

treatment, Rainier repeatedly misrepresented that the pier is “utilized solely for pedestrians.”

Dkt. 29 at 5. See also id. at 2, 8, 15; Dkt. 31 at ¶ 6 (Rainier’s parent company’s vice president

averring that the pier is “utilized for pedestrians only.”); Dkt. 32 at 10. Evidence at trial will

show that Rainier knew these statements were false because Rainier drives its pallet jack and

forklift on the pier. That Rainier puts its desire to shirk responsibility for its polluted discharges

above its duty of candor speaks volumes to its attitude toward compliance.

Evidence at trial will further show that, even under the supposed microscope of litigation,

Rainier and its parent company paid little attention to CWA compliance. Two years into his

position, the individual tasked with Permit compliance for the facility – Mr. Barnes – has not

even read the entire Permit. Similarly, Rainier’s excuse for withholding information about



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Seattle Public Utilities’ inspections is that Rainier never bothered to open SPU’s letters

demanding corrective action for the tank farm and other problems, and Rainier’s counsel never

asked their client for documents that were responsive to Soundkeeper’s discovery requests.

Weeks after the Court’s order on summary judgment issued, when counsel conferred, Rainier’s

counsel had not even read the entire order, and at the Court’s hearing on Soundkeeper’s motion

for discovery sanctions Rainier’s counsel demonstrated a similar unfamiliarity with Judge

Martinez’s order in Soundkeeper’s companion case. In over a decade of enforcing this Permit,

Soundkeeper has not encountered greater indifference and willful ignorance from a discharger.

c. The public good demands a penalty with broad deterrent

value.

Stormwater pollution “is one of the most significant sources of water pollution in the

nation.” Envtl. Def. Ctr., Inc. v. United States Envtl. Prot. Agency, 344 F.3d 832, 840 (9th Cir.

2003). Evidence at trial will show that stormwater is the largest source of toxic loading to Puget

Sound, and that controlling stormwater discharges is essential to prevent recontamination of the

Lower Duwamish Waterway Superfund site following cleanup. That cleanup is expected to cost

taxpayers $342 million. Dkt. 81 at 6 (agreed fact 24).

However, as Soundkeeper will demonstrate, Permit violations are pervasive in western

Washington, and public resources for enforcement are stretched thin. As a result, the probability

that individual violators will be caught, prosecuted, and appropriately penalized is low.

Soundkeeper’s economist Mr. Shefftz will explain that in this enforcement context a penalty

must be substantially higher than Rainier’s economic benefit to have a deterrent effect and to

send a strong deterrence message to the many other stormwater polluters in Puget Sound.



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Taking these factors into account, Soundkeeper believes a $7 million penalty is

reasonable and the minimum the Court should impose given that the maximum penalty is $209

million. Considering the significant economic benefit to Rainier from non-compliance, Rainier’s

misconduct with respect to permit compliance and in this case, and Rainier’s likely argument

that a $209 million penalty would be ruinous, a minimum $7 million penalty is plainly justified,

if not required in this circumstance in order to serve Congress’s goals of restitution, retribution,

and deterrence. Tull v. United States, 481 U.S. at 422.

III. THE COURT SHOULD ORDER COMPEHENSIVE INJUNCTIVE RELIEF.

The Court has broad statutory authority to fashion an appropriate equitable remedy under

the CWA. See 33 U.S.C. §§ 1365(a) and (f) (the Court has authority to enforce “a permit or

condition thereof”). As the Supreme Court has observed, the CWA “permits the district court to

order that relief it considers necessary to secure prompt compliance with the Act.” Weinberger v.

Romero-Barcelo, 456 U.S. 305, 320 (1982).

To be granted injunctive relief, “‘[a] plaintiff must demonstrate: (1) that it has suffered an

irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate

to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff

and defendant, a remedy in equity is warranted; and (4) that the public interest would not be

disserved by a permanent injunction.’” Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743,

2756 (2010) (quoting eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).

The Court will hear testimony that Soundkeeper’s members derive aesthetic and

recreational enjoyment from their use of Elliott Bay and the Duwamish River estuary, and are

harmed by Rainier’s ongoing violations of the CWA. Such “[e]nvironmental injury, by its

nature, can seldom be adequately remedied by money damages and is often permanent or at least



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of long duration, i.e., irreparable.” Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545

(1987).

If injury to the environment is sufficiently likely, the balance of harms will usually favor

the issuance of an injunction. Amoco Prod., 480 U.S. at 545. The Ninth Circuit has affirmed that

“the public interest in preserving nature and avoiding irreparable environmental injury outweighs

economic concerns.” Lands Council v. McNair, 537 F.3d 981, 1005 (9th Cir. 2008).7 Thus the

Ninth Circuit will uphold the grant of even costly or difficult injunctive relief where, as here,

swift corrective action is needed to protect a fragile and degraded marine environment. Nat. Res.

Def. Council v. Sw. Marine, Inc., 236 F.3d at 1001.

Finally, the public interest is served by an injunction designed to further the objectives of

the CWA—“to restore and maintain the chemical, physical, and biological integrity of the

Nation’s waters.” See 33 U.S.C. § 1251(a); Atlanta Gold Corp., 879 F. Supp. 2d at 1162

(meeting state water quality standards “is a critical public interest that profoundly outweighs a

company’s bottom line.”)

Soundkeeper’s stormwater engineering experts Dr. Horner and William Lider will testify

in support of several components of this request for comprehensive injunctive relief.

1. Upgrading tank farm secondary containment. Mr. Lider will testify that it is

necessary and entirely feasible and affordable for Rainier to pave the tank farm containment area

with Portland cement, as well as to install an impervious liner and cleanup any contaminated

soils before paving.

7 See also Atlanta Gold Corp., 879 F. Supp. 2d at 1161- 63 (““Harm to [the] environment outweighs a defendant's

financial interests, particularly where violations are of a longstanding and continual nature . . . Compliance with the

Clean Water Act is not dependent upon whether the polluter has actually begun to turn a profit. The statute contains

no qualification for the profitability of an enterprise . . .”)



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2. Secondary containment for storage of portable liquid containers. The Court will

hear testimony that it is easy and inexpensive for Rainier Petroleum to store all portable

containers of liquids and petroleum products in secondary containment, and that doing so is

necessary to comply with the Permit and prevent a spill.

3. Consolidating, monitoring, and treating pier runoff. Soundkeeper’s experts will

testify that the most economical way for Rainier to address the numerous points of unmonitored

and untreated stormwater discharges from its pier is to install piping to bring the stormwater to

one consolidated location for monitoring and high quality treatment.

4. Monitoring roof runoff. Rainier Petroleum must either begin sampling the roof

drain outfalls or divert the roof drains to a consolidated monitoring location to comply with the

Permit.

5. Oil/water separator. Soundkeeper will show that Rainier Petroleum’s existing

below-ground oil/water separator is already undersized and will need to be upgraded to prevent

the discharge of slugs of oil to Elliott Bay, to handle additional flows from the pier, tank farm

once it is paved, and potentially the roof runoff, and to provide pretreatment to remove oil and

prevent fouling the enhanced treatment system that Rainier must install.

6. Installation of enhanced filtration by September 30, 2016. As Dr. Horner and Mr.

Lider will explain, installing a Chitosan enhanced sand filtration system is necessary to bring the

facility into compliance with the Permit’s water quality protections and corrective action

requirements, and doing so is entirely feasible. Accordingly, Soundkeeper will demonstrate that

it is appropriate to order Rainier Petroleum to complete the required engineering report for such

treatment by May 15, 2016 for Department of Ecology review and approval, and to install a

Chitosan-enhanced sand filter to treat all of its discharges by September 30, 2016, the deadline



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for the Level 3 corrective action that Rainier Petroleum triggered this fall with its polluted

discharges.

7. Corrected and enhanced sampling plan. To remedy its violations of the Permit’s

discharge monitoring requirements Rainier Petroleum will need to revise the sampling plan in its

SWPPP, sample any additional discharge points unless and until they are consolidated, conduct

enhanced sampling, and conduct an employee training on sampling and reporting. Specifically,

appropriate equitable relief for Rainier’s long history of monitoring failures includes conducting

enhanced sampling by sampling discharges from each outfall during at least two different storm

events (i.e., separated by at least 24 hours without precipitation) in the first, second, and fourth

quarters of 2016, and first and second quarters of 2017, to better characterize its stormwater and

the efficacy of new best management practices (“BMPs”).

8. SWPPP. Rainier Petroleum will need to revise its SWPPP to rectify the

deficiencies identified in the Court’s order on summary judgment, and to incorporate any

changes to its BMPs as a result of the injunctive relief ordered by the Court.

9. Employee training. Finally, Soundkeeper will present evidence at trial that the

employees with stormwater responsibilities at the facility should promptly attend a seminar on

Permit compliance and stormwater management put on by the Environmental Coalition of South

Seattle. This is the same seminar that Mr. Barnes recently attended and found very helpful.

IV. CITIZEN SUIT PROVISIONS AND STANDING.

“The citizen plaintiffs in a [CWA] suit are suing as private attorneys general, and they

seek enforcement of federal law… Any benefit from the lawsuit, whether injunctive or

monetary, inures to the public or to the United States.” Sierra Club v. Chevron U.S.A., Inc., 834

F.2d 1517, 1522 (9th Cir. 1987) (quoting Chesapeake Bay Found. v. Bethlehem Steel Corp., 608



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F.Supp. 440, 449 (D. Md. 1985)). Congress and the courts have recognized that citizen suits are

an integral part of the overall enforcement scheme of the CWA that have deterred violators and

achieved significance compliance gains. Save Our Bays & Beaches v. City & County of

Honolulu, 904 F.Supp. 1098, 1125-26 (D. Haw. 1994). Accordingly, the Ninth Circuit treats

citizen enforcement actions “liberally, because they perform an important public function….

[C]itizens should be unconstrained to bring these actions and the courts should not hesitate to

consider them.” Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1525 (9th Cir. 1987).

As the Court implicitly found in granting summary judgment, Soundkeeper has met all

requirements to bring this case. First, Soundkeeper complied with all pre-suit notice provisions,

and mailed copies of the Complaint to the EPA and the United States Department of Justice. Dkt.

81 at 18 (agreed facts 87 and 89).8 Second, Rainier Petroleum’s violations are “ongoing” and

therefore subject to citizen suit because they continued after the complaint was filed and because

Rainier had not taken any actions to eradicate its violations by that date. Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64-65 (1987).9

Finally, Rainier Petroleum has not contested Soundkeeper’s standing.10 As the Court will

see at trial, Soundkeeper has suffered “injury in fact.” Its members derive aesthetic and

8 “[A] party who wishes to sue under the CWA’s citizen enforcement provisions may not commence an action until

at least 60 days after giving notice of intent to sue” and serving copies of said notices upon the Attorney General and

EPA. Southwest Marine, Inc., 236 F.3d at 992; 33 U.S.C. § 1365(b)(1)(A); 40 C.F.R. § 135.2(a)(1); 33 U.S.C. §

1365(c)(3); and 40 C.F.R. § 135.4. The complaint must be served pursuant to 505(c)(3) of the CWA, 33 U.S.C. §

1365(c)(3). 9 Intermittent or sporadic violations do not cease to be “ongoing” until the date when there is no real likelihood of

repetition. Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 998 (9th Cir. 2000). 10 To establish standing, a plaintiff must show: 1) it has suffered an “injury in fact;” 2) the injury is fairly traceable

to the challenged action; and 3) it is likely, as opposed to speculative, that the injury will be redressed by a favorable

decision. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). Further,

the interests at stake must be germane to the purpose of the organization for it to have standing to sue on behalf of its

members. See id. at 528 U.S. at 181. Soundkeeper will demonstrate at trial that these requirements are satisfied.

Soundkeeper also meets the lenient “zone of interests” test for prudential standing because the objective of the CWA

is environmental protection, which is aligned with Soundkeeper’s interests. See Ocean Advocates, 402 F.3d at 861.



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recreational enjoyment from Puget Sound and connected water bodies, and their use and

enjoyment is diminished by Rainier Petroleum’s violations and by their reasonable concerns

regarding the effects those violations have on water quality. Ecological Rights Found. v. Pac.

Lumber Co., 230 F.3d 1141, 1147, 1151 (9th Cir. 2000); Ocean Advocates, 361 F.3d at 1119-20

(increased risk of oil spill in Puget Sound gives rise to injury in fact); Laidlaw, 528 U.S. at 183-

84. These injuries are “fairly traceable” to the violations at issue because Rainier Petroleum

discharges stormwater and other pollutants that causes and contributes to the environmental

harms of concern, and its violations pose a risk of an oil spill. See Southwest Marine, 236 F.3d

at 994-95; and see Ecological Rights Found., 230 F.3d at 1152. The injuries complained of are

redressable by an order from the Court enjoining Rainier Petroleum from violating the CWA and

imposing sufficient civil penalties to affect a credible deterrent against future violations. See

Covington v. Jefferson County, 358 F.3d 626, 639 (9th Cir. 2004); and see Laidlaw, 528 U.S. at

185-88.

V. SOUNDKEEPER IS ENTITLED TO AN AWARD OF FEES AND COSTS.

Soundkeeper is entitled to a full award of fees and costs in this case. 33 U.S.C. §

1365(d); see also Resurrection Bay Conservation Alliance v. City of Seward, 640 F.3d 1087,

1091 (9th Cir. 2011) (“fee awards should be the rule rather than the exception…[A] [district]

court’s discretion to deny a fee award to a prevailing plaintiff is narrow and a denial of fees on

the basis of ‘special circumstances’ is ‘extremely rare.’” (internal quotation marks and citations

omitted)). Soundkeeper will seek fees and costs by separate motion.

VI. CONCLUSION.

The duration and scope of Rainier Petroleum’s CWA violations demonstrate an abiding

disregard for environmental regulations, resulting in demonstrable harm to the fragile and



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imperiled Elliott Bay, posing a significant threat of catastrophic harm to the environment, and

undermining the regulatory system. Substantial civil penalties and comprehensive injunctive

relief should be imposed against Rainier Petroleum to address its conduct, abate the ongoing

illegal discharges, and affect a sufficient deterrent against any such future actions.

RESPECTFULLY SUBMITTED this 4th day of January, 2016. SMITH & LOWNEY, PLLC

By: /s/ Knoll Lowney

Knoll Lowney, WSBA No. 23457

By: /s/ Claire E. Tonry

Claire E. Tonry, WSBA No. 44497

Attorneys for Plaintiff

2317 E. John St., Seattle, WA 98112

Tel: (206) 860-2883; Fax: (206) 860-4187

Email: [email protected], [email protected]


honorable james l. robart

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