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RE Sources sues Sumas lumber company over stormwater runoff Herald 100220

JOHN STARK / THE BELLINGHAM HERALD

A Bellingham environmental group has taken a Sumas lumber company to federal court alleging Clean Water Act violations, and a company official says the cost of settling the action could threaten the future of his company and its 45 jobs.

"We can't pay what they are asking," said Achim Fuchs, manager at Teal Jones Lumber Services. "It would break us. ... We're struggling right now."

Bob Bromley, mayor of Sumas and owner of the town's major grocery, said the city of about 1,200 can ill-afford to lose the company.

"If Teal Jones isn't there, it ripples through the economy of Sumas," he said. "It affects other businesses, and city income too."

But Wendy Steffensen, North Sound Baykeeper at RE Sources for Sustainable Communities, said the lawsuit is an important part of the group's effort to stop pollution from stormwater runoff, to help reduce the deterioration of Puget Sound.

"Puget Sound is in trouble, and we all know that stormwater is one of the largest contributors to pollution in Puget Sound," she said. "We have undertaken a legal strategy to identify facilities that pose a threat to water quality and are not in compliance" with federal Clean Water Act standards for stormwater runoff from industrial sites.

In the lawsuit filed in September, RE Sources accuses Teal Jones of discharging polluted runoff into Johnson Creek at levels in excess of standards in its permit, and seeks civil penalties at a maximum of more than $30,000 a day for violations.

"There are a lot of companies that are compliant with the law, and their cost of business is greater than a company that does not comply with the law," Steffensen said. "While it may seem heavy-handed to come down with a legal case, we're doing something that the Department of Ecology and the business should have done a long time ago."

Fuchs said his company wants to comply with the law. He characterized his firm's troubles as technical violations of complex reporting requirements, based on a misunderstanding of reporting deadlines. He questioned RE Sources' tactics in using a lawsuit to promote clean water.

"Their intentions may be right and may be justified, but the money they're taking from us does nothing to improve our environmental impact," Fuchs said.

The Clean Water Act standards are established in regulations attached to wastewater discharge permits issued to individual companies by the state Department of Ecology.

The state agency has authority to enforce the federal law, but the law also allows private parties to sue to challenge violations.

Steffensen said RE Sources and its environmental law firm, Smith & Lowney of Seattle, are using that provision to protect water quality. She described the Department of Ecology as "lax in its duties" in many cases.

Kurt Baumgarten, an Ecology water-quality specialist in the Bellingham office, said he and one other person must keep track of more than 100 industrial stormwater permit holders in a three-county area, as well as about 400 other permit holders. A third water-quality specialist position was cut recently due to state financial troubles.

Baumgarten said Teal Jones appears to have been filing its required reports on stormwater discharges, but he still needs to do a full review of the complex reports as well as a site inspection. The state enforcement system is geared toward educating companies and showing them how to get back into compliance when problems occur, he added.

Teal Jones is a Canadian-based company that makes dimensional lumber - lumber that is planed and cut to standardized sizes. The U.S. market for its products crashed with the rest of the economy.

Fuchs said the Sumas operation is staying afloat by shipping lumber to Australia and Japan, but its position is precarious. In November, Port of Bellingham commissioners gave the company a small break on its lease payments at the port's Sumas industrial park to help it survive.

The port's leases require tenants to comply with environmental laws. Mike Stoner, the port's environmental director, said he and his staff have worked with Teal Jones and other tenants to help them do that, but compliance requirements are complex.

After some earlier problems, Stoner said he believes Teal Jones has gotten back into compliance with legal requirements, and the company is doing its best to stay that way.

He said he admires RE Sources' vigilance on clean water issues but wishes the organization would emphasize a collaborative approach with companies and the port, before resorting to a costly lawsuit.

Steffensen said her organization has settled many Clean Water Act issues with area companies without going to court. She also noted that Smith & Lowney gives Teal Jones and other companies a warning letter advising that a suit will be filed in 60 days if issues are not addressed.

RE Sources is aware of the tough economic times that Teal Jones is facing, Steffensen said.

"We are actively working on this with them and we believe we are being very fair," she said.

Federal court records indicate that in the past two years, RE Sources and its law firm have reached settlement agreements in four similar cases involving Bornstein Seafoods of Bellingham, Oxbo International's Korvan Division of Lynden, Americold Corp. of Burlington, and the Port of Anacortes. Those settlements resulted in a total of about $89,000 in payments to Smith & Lowney for fees and expenses, and $81,000 in payments applied to water-quality restoration projects run by other organizations.

"We actually never take the money," Steffensen said.

She also observed that reversing decades of environmental damage to Puget Sound will not be a painless process.

"Unfortunately, we need to take some drastic action, and it includes all of us."