Pacific Seafood failed to do representative monitoring of its discharges, as required by its Clean Water Act permit. Photo: LaLiberte.

Warrenton, OR—In September 2006, Judge Ancer L. Haggerty of the United States District Court for Oregon ruled that Pacific Coast Seafoods Company had failed to comply with requirements regarding wastewater monitoring and reporting at its seafood processing facility in Warrenton, Oregon. Pacific Coast processes various seafood products at the facility, including shrimp, crab, whiting, cod and halibut. It shares the facility with its affiliate Pacific Surimi Co., and both are owned and operated by Pacific Seafood Group, the third largest seafood processor in the country.

NELC attorneys filed suit against Pacific Coast and Pacific Surimi in July 2002, on behalf of the Oregon State Public Interest Research Group (OSPIRG) and two Warrenton-area residents, for chronic non-compliance with the Clean Water Act. Among other claims, the lawsuit alleged that Pacific Coast was not meeting wastewater discharge limits applicable to many of its seafood processing lines, and was violating water quality standards in the Skipanon and Lower Columbia Rivers.

In October 2004, NELC attorneys added several new claims to the lawsuit, including allegations that Pacific Coast had systematically avoided taking samples of its wastewater on days when its more pollutant-intensive seafood products were being processed, and had routinely failed to sample and report the levels of biochemical oxygen demand (BOD) in its wastewater. BOD is a measure of the oxygen-depleting character of wastewater.

Pacific Coast’s wastewater discharge permit, which is issued by the Oregon Department of Environmental Quality (DEQ) under authority granted by the Clean Water Act, explicitly requires that BOD be monitored and that monitoring be representative of the wastewater actually discharged.

In March 2005, the federal court found that Pacific Coast had violated various wastewater discharge limits in the permit on over 600 days of operation, and NELC attorneys believe that a number of additional violations would have been confirmed had Pacific Coast conducted its wastewater monitoring in the manner required by its permit.

In July 2006, three months before the scheduled trial date in the case, the parties agreed to place the monitoring issues before the court for disposition in a “summary bench trial,” a proceeding in which the judge rules on the issues on the basis of written evidence and arguments submitted by the parties.

NELC attorneys argued that Pacific Coast had violated the permit’s monitoring provisions on 60 separate occasions. Pacific Coast’s defense relied heavily on a series of telephone communications with a DEQ employee, in which the company allegedly was told that its monitoring practices were perfectly acceptable.

“Off-the-cuff interpretations by agency personnel can be misleading, because there’s no guarantee that the employee is actually speaking for the agency,” explained NELC Staff Attorney Joseph Mann. “Moreover, if DEQ meant to officially relax the permit’s monitoring provisions, it is not authorized to do so during a casual phone call: the law requires that the public be notified and given an opportunity to comment on such proposed changes before they take effect.”

On Sept. 26, the court issued an opinion finding Pacific Coast liable for all of the alleged monitoring claims. Regarding the BOD violations, the court found that “Pacific Coast’s permit plainly requires monthly monitoring of BOD with no stated exception” and that “DEQ lacked authority to amend Pacific Coast’s permit without submitting the modification to public notice and comment.”

Regarding the representative monitoring violations, the court found that the company’s position “would defeat the purposes of the [Act] by allowing Pacific Coast to manipulate the sampling dates such that it only samples species productions that do not violate the effluent requirements.”

“When dischargers fail to accurately monitor and report their wastewater discharges, the system for enforcing limitations on water pollution fundamentally breaks down, and vital information is forever lost to government regulators and concerned citizens,” said NELC Litigation Director Charles Caldart. “The judge sent a clear message to seafood companies—and to DEQ—that the monitoring requirements of the Clean Water Act are too important to be ignored."

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