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The ABC Recycling Hook

We needed a hook, and we think we found it.

We needed a hook, and we think we found it.

Those of us at Save the Waterfront have been looking for a "hook" on which to hang the Port and ABC Recycling, a way to force them to finally submit to a SEPA evaluation. So far, ABC had avoided this requirement by being defined by the City and the Port as a cargo storage facility, which has categorical exemption from SEPA evaluation.

But when they were flagged on a DOE inspection in 2022 for operating without an Individual Industrial Stormwater Permit, they were forced to apply for one. And in filling out the form for an Individual Stormwater Permit, they had to truthfully identify themselves as a “RECYLABLE MATERIAL MERCHANT WHOLESALER” dealing in “SCRAP AND WASTE MATERIALS."

What was missing, and no one wanted to talk about, was the absence of an application, or any back-up documentation, that was required for any of their activities at the Port, whether incorrectly described as “Cargo Storage” or correctly as “Recycling.” We think a Wastewater Permit application, which commits them to an accurate description of their activities under the NAICS (North American Industrial Classification System), is the “hook” we need to finally subject them to a SEPA evaluation.

When compared to the cargo storage facility, the recycling business is a new industrial activity: It was not anticipated, is unreviewed by any prior Environmental Impact Statement, and requires a Conditional Use Permit. Is someone, or maybe everyone, trying to hide a big hole in this process? Scott Jones, Rebecca Craven, and Claudia Newman (Bricklin and Newman, specializing in environmental law) have written a letter to the Department of Ecology requesting an evaluation. The letter, in Files below, outlines the issues, requirements, and responsibilities of the parties. It also closes possible escape routes ABC could use to avoid environmental scrutiny.

Because the Department of Ecology is not only empowered, but obligated by the State Environmental Protection Act, we are calling on them to require a full SEPA review encompassing all aspects of ABC Recycling’s activities including air, water, and noise pollution.

Note: The letter from Save the Waterfront is a long read, but worth your time for the clarity it brings to what has gone wrong on the waterfront. 

Related Links

Attached Files

Comments by Readers

Scott Jones

Dec 26, 2023

1st paragraph. 

* There is no categorical exemption. SEPA should have been done when the lease was signed. They did it so quietly, the appeals timeline was expired by the time anyone knew about it (summer 2022).

* The City continues to mention the land use they chose is a Barge Loading terminal. Yes. It’s wrong and rediculous.

* Other than the stormwater permit, the only other SEPA triggers are building permits which there are none. 

2nd paragraph.

* The DOE inspection did not trigger the isgp (industrial stormwater general permit). The new NAICS number did, which has been public and known since at least this summer. 

4th paragraph

* Conditional Use is only required if the true land use use is recognized as correct by the Planning Director; 20.37.420.f.12, Recycling Collection and Processing Center. Mayor Fleetwood is taking no steps to help make that happen, although it is obvious.

* Brickin and Newman has been retained by STWF. Ms. Newman did not write nor sign the letter, although the firm did consult. 

David is right. The letter is a great way to truly understand what is happening and why it is so important that Ecology makes the determination of a full SEPA review.

Scott

www.savethewaterfront.org 

 

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Tip Johnson

Dec 28, 2023

(It must just be cargo, because otherwise it couldn’t be permitted as is:)

BMC 20.37.420 Waterfront district urban village – Uses.
E. INDUSTRIAL
10. Water-related and dependent industrial uses such as: aquaculture, barge loading facility, boat/ship building, boat repair, dry dock, net repair, seafood processing, cargo terminal, web house, and offices supporting the same.

(Here you can see that cargo and barge loading are permitted.  If it were recycling, then…)

F. MISCELLANEOUS USES
12. Recycling and refuse collection and processing center, subject to additional standards per BMC 20.16.020(L)(2).

Note 2: Facilities shall be sized and designed to collect waste from residents, businesses and visitors to the waterfront district and shall not be used to collect or treat waste imported from outside of the district.

Note 9: Conditional for facilities that collect or process recycling or refuse imported from outside the district.

(Here, at 20.16.020 as referenced in BMC 20.37.420, above, you’ll see that the definition of recycling looks an awful lot like what’s actually going on.)

BMC 20.16.020 Conditional uses.
L, 2. Recycling Collection and Processing Center.

a. Definition. A premises used for the collection and processing of metals… Processing is limited to preparation of the materials for shipment, such as sorting, cutting, compacting, and baling, but not otherwise transforming or remanufacturing the materials…

(And the code specifically makes such activity conditional in waterfront designations.)

b. Conditional in the commercial neighborhood, auto, and waterfront designations, and as referenced in the urban village plans…

c. Special Requirements. Should the provisions of this section conflict with any other provision of the Bellingham Municipal Code, except critical areas ordinance, shoreline master program, and storm water regulations, the provisions of this section shall apply. The planning director or hearing examiner may change, alter, or condition a proposal as necessary, to ensure compatibility with city goals, policies, standards, the surrounding areas, or to mitigate operational impacts including noise, odor, visual, and health and sanitary impacts…

c, i. The operation must be carried on entirely within an enclosed structure, except that pick-up and delivery may be conducted in the open…

ii. The site shall be screened from abutting nonindustrial zones…

(So though looks can be deceiving, you can plainly see it is absolutely not recycling or you wouldn’t see that big mess down there. Perhaps they should change their name to ABC Cargo Storage and Barge Loading?)

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Michael Lilliquist

Dec 29, 2023

One of the early actions by the Port of Bellingham was to obtain authority to act as SEPA official over the entire Waterfront planning process (it was done via an interlocal agreement, I believe).

That SEPA evaluation was completed many years ago, in the form of a Planned Action Ordinance.  The Port remains the SEPA official for anything that falls under that ordiance, I believe. Any challenge to ABC’s recycling under SEPA should look at the Planned Action Ordiance, to see if the proposed and actual uses were covered by that document.  If they were covered properly, then the SEPA process is probably over and done with.

I do not know if you can have a second SEPA authority (Ecology) run another SEPA evaluation when one has alteady been done (by the Port). And I dont know if a second SEPA authority can take over from the orioginal SEPA authority.

It’s getting pretty technical, and these are the sort of questions to ask an attorney or expert.  If Ms. Newman is hired as legal counsel, then her opinion and her duty is to her client’s point of view.  She may be truthgful but not objective, if you know what I mean.


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David Netboy

Dec 29, 2023

 Mr. Lilliquist,

 Thank you for your response to our posting at NW Citizen.  I am well aware that ABC Recycling having been able to escape SEPA evaluation could be explained by the following:

 1) They could have set up business at the Port as an operation consistent with the Port’s existing POA. or

2) They could have been assigned to a Land-Use category for which a categorical SEPA waiver exists.

Over the past several months, our inquiries about the SEPA waiver both to COB (the relevant letter from the City Attorney Ms Kraham is attached) and to the Planning Director, Mr Lyon via personal communication have yielded BOTH explanations, each at a different date and each exclusive of the other.

This inconsistency is of course most unsatisfactory as it gives the impression that there is no “right” answer to the question about how SEPA evasion was really accomplished but only a Code Book into which one could reach post-hoc to pull out something that would work—if only it had been employed and properly documented at time of ABC’s arrival in Bellingham.

 We have searched for any proper documentation as specified in  

16.30.160 - Waterfront District Planned Action - Permit Process.

that supports ABC’s contention that they were evaluated and their business found to qualify as a Planned Action.  And we have found nothing!  There was no “Determination of Consistency” And of course there was no public posting of such a Determination.

At the time of ABC’s arrival, Mr Sundin was the responsible official through whom the relevant documentation would have flowed.  Per conversations between his successor, Mr Lyon and representatives from Savethewaterfront.org, it Mr Lyon suggests that the Land-Use designation into which ABC was fitted, Urban Mixed-Use Industrial E10, also including a categorical SEPA waiver was also discussed by the Planning Department “Staff” and the Port but not at the time of ABC’s arrival.  Rather it was discussed in relation to minor building permit applications by ABC sometime after they were already in operation and after a significant amount of blowback had been directed to the Port and COB when residents of South Hill had awakened to the noise and discovered all the other issues around ABC with which you are certainly familiar.

Again there is no documentation that an orderly documented paper trail exists tracing ABC’s arrival at the Port and its startup operations.  It simply commenced its noisy and possibly polluting business until we began to ask questions such as “How could this possibly happen?” Thereafter the scrabble for post hoc justifications began.

We are all too aware that the Port is the SEPA Lead Agency.  However it is painfully obvious that in this particular situation, the Port as SEPA Lead has a flagrant conflict of interest since ABC now has a cash relationship with them making it to the Port’s distinct advantage that “inconveniences” such as Environmental Evaluation of their entire operation be avoided.  There is, however, an appeals process both for such structural misalignments and for questionable decisions handed down by a possibly compromised SEPA Lead Agency

I hope that you will find enough material in this email to persuade you that the manner and means by which ABC Recycling, a most unlikely choice of business to set down in the very center of the most contaminated terrain of the GP Brownfield, was given permission to start operations and was allowed to sign a contract to continue to operate for the next 15 years was, at a minimum, irregular.

 Yours

 David Netboy, M.D.

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Doug Karlberg

Jan 02, 2024

I must say that I am impressed by the lay people who are reading some complicated laws on the readers behalf.

As the principal agency with authority over SEPA violation is the Washington State Department of Ecology, and they have been notified of the alleged violations, we shall see what this very specialized agency full of attorneys with extensive experience in this field of law, including all the court decisions that guide the interpretations of these statutes has to say.

Hopefully these writers will share the DOE response with readers.

Will shall see how these allegations of wrong doing by ABC Recycling hold up under expert review.

If it turns out that these allegations are not upheld by the DOE, then I hope the writers of these allegations stand tall, and apologize.

If the allegations are supported, then it is only fair that the government agencies involved and ABC do the same, where appropriate.

The issue is in the hands of experts now. I will be interested to see the DOE response.

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Larry Horowitz

Jan 06, 2024

Dr. Netboy,

Thank you (and others) for your efforts to find a hook on which to hang the Port and ABC Recycling. I agree that a SEPA evaluation is needed. But, as you alluded to in your response to Michael Lilliquist, there is another, potentially more direct hang-worthy hook. I will do my best to keep this as simple as possible.

In order for a Waterfront District land use OR activity to be exempt from undergoing the SEPA Threshold Determination process, the land use OR activity must be determined to be a qualified Planned Action under the City’s Planned Action Ordinance (PAO). A Planned Action is ‘qualified’ if it is determined to be consistent with the uses and activities described in the Waterfront District Environmental Impact Statement (EIS). 

If the land use OR activity does not obtain a Determination of Consistency from the City, then it is not exempt from SEPA review.

In the case of the ABC Recycling Bulk Storage Facility (ARBSF), neither ABC nor the Port submitted a request to the City for a Determination of Consistency. That’s the reason you have not found any documentation that the ARBSF was determined to be a qualified Planned Action. Brian Gouran, the Director of Environmental & Planning Services for the Port, confirmed to me via email that there is no permit application, Determination of Consistency, or SEPA checklist associated with the ARBSF.

Because there is no Determination of Consistency, the ARBSF is not exempt from SEPA review and is likely operating illegally. ABC cannot have its cake and eat it too. In other words, the ARBSF must obtain a Determination of Consistency under the City’s PAO – or - it must undergo SEPA review by submitting a SEPA Environmental Checklist. If the SEPA Official issues a SEPA Threshold Determination of Significance (DS), then an EIS for the bulk storage facility must be completed. Note that the City’s PAO qualification process for land uses and activities still requires a SEPA checklist to be submitted. A SEPA threshold determination is not required; but a SEPA checklist is.

It is ABC’s responsibility to comply with the requirements of the City’s Planned Action Ordinance. As regulators, the Port and the City are complicit. The onus is now on the City to acknowledge that ABC failed to comply with the PAO requirements - and shut down ABC’s operations until the City’s PAO responsible official determines the land use and activity are consistent with the Waterfront District’s EIS. 

An essential aspect of the Determination of Consistency is that a Notice of Determination must be issued. This notice initiates a 21-day period for the public to appeal the determination. During this appeal period, the public can assert that Note 9 of the Waterfront District’s Table of Permitted Uses requires the ARBSF to comply with the City’s Conditional Use regulations because the facility collects recycling imported from outside the district.

These regulations require the ARBSF to submit an application for a Conditional Use Permit and the City’s hearing examiner to hold a public hearing. ABC must convince the hearing examiner that the proposed use will promote the health, safety, and general welfare of the community *and* not be detrimental to the surrounding neighborhood. That will be difficult to do. To date, the public has never received notice nor have they be given an opportunity to appeal a determination that was never made.

Perhaps Councilmember Lilliquist will follow up on this and request the administration to acknowledge ABC’s failure to comply with the PAO requirements and shut down ABC’s operations. Or perhaps Mayor Kim Lund will take the initiative and clean up the mess she has inherited. It might be wise for Mayor Lund to act quickly, before the prior administration’s mess becomes her own.

Here’s a link to the City’s Planned Action Ordinance regulations under Chapter 16.30 of the Bellingham Municipal Code (BMC). The most relevant sections are BMC 16.30.130 – 16.30.160.

https://bellingham.municipal.codes/BMC/16.30

Note 9 of the Permitted Uses Table is shown under Section 20.37.420-A BMC at:

https://bellingham.municipal.codes/BMC/20.37.420

The General Provisions of Bellingham’s Conditional Use regulations are listed under Section 20.16.010 BMC at:

https://bellingham.municipal.codes/BMC/20.16.010

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David Netboy

Jan 07, 2024

Mr Horowitz has precisely identified the most likely actionable deficiency relating to ABC Recycling’s sudden unexpected appearance at the Waterfront represented first by the accumulation of a mountainous pile of rusted scrap metal, followed by the brutal noise associated with pulling scrap down from the pile, loading it onto trucks and dumping it into the hold of a waiting bulk loading ship.  It seems that everyone was taken by surprise. No one could remember a public announcement or public discussion of what was, in effect, a visual and auditory bomb dropped into the very middle of our Waterfront District Sub-Area Plan.

Why surprise (followed by anger)?  Perhaps it was because ABC followed none of the required protocols necessary to set up business at the Port.  Not only did they fail to apply for a proper Stormwater Permit, and start up their operations using the Port’s permit parasitically, but most importantly they contrived to avoid SEPA evaluation all the while they were violating DOE Stormwater standards for heavy metal contamination.  

We spent weeks trying to find a paper trail justifying the facts-on-the-ground.  And we came up empty. The object of the exercise was to find a way to force ABC to finally have a proper environmental investigation.  When, due to their failure to obtain an individual Stormwater Permit, they had to apply for one and the form asked if they’d completed a SEPA checklist, their “NO” response required a justification for having evaded what is usually a default entry requirement.  And to my delight, they checked off that they’d been embraced as consistent with the “Planned Action Ordinance” in operation at the Port.  My reaction was as follows (in a letter to savethewaterfront.org)

We’ve been looking for the “hook” on which to hang the Port and ABC and force them to finally submit to SEPA evaluation not simply focused on their mandated application for an individual Wastewater Permit but for the complete absence of enabling documentation that was required in order for them to set up for business at the Port.  Their complete evasion of SEPA has been explained by Blake Lyon, the COB attorney, Kraham or the Port, depending upon which day of the week they’re asked as resulting from ABC’s inclusion in the Waterfront District PAO or alternatively, a zoning decision.  
But when ABC had to fill out their application for a separate Wastewater Permit on which there was a checkbox asking the reason they’d been able to evade SEPA, they checked the PAO option—oh my!  The fact that none of the documents required for determination of consistency with the existing PAO had been filled out does make liars out of someone or perhaps everyone.

So here we are with confirmation that ABC arrived in Bellingham and started to do their very questionable business without apparently having even been asked to show their passports as would have been the default for an ordinary overnight hotel stay in France or Germany.

Question:  Can this be adjudicated in a manner that bypasses the SEPA Lead Agent who is, The Port? 

If conflict of interest has any meaning, then probably yes.  Or if the ABC operation is considered a Conditional Use, then there are several avenues leading to remediation that bypass the SEPA agent.  One can hope that proper legislative and legal resources can still be called upon to rectify this disgraceful situation.

 

David Netboy

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Michael Lilliquist

Jan 08, 2024

I add only one small piece of information. David writes, perhaps rhetorically, “if the ABC operation is considered a Conditional Use, then there are several avenues leading to remediation…”

I inquired on this point specifically, and I was told by city staff that the current use by ABC was determined to be outright “allowed” rather than “conditional.”

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David Netboy

Jan 08, 2024

Michael,

“Current Use” was determined under a description of ABC’s activities that does not comport with the NCIAS designation under which they were required to submit their Stormwater Permit application, namely, RECYCLABLE MATERIALS MERCHANT WHOLESALER/SCRAP AND WASTE MATERIALS.  If “Recycling” is in play as a more correct alternative description of what they are doing, then their operation would be conditional.

It is difficult to avoid applying the term “question begging” to the assertion of the city staff and equally difficult to ignore the apparent absence of any documentation of the meeting of the staff at which their “determination” was made.  However, antecedent to this no one has answered other overriding questions:  How could this peculiar and anomalous activity with obvious potential to cause environmental harms be permitted to set up housekeeping and start their business without even formally presenting their credentials (as it were). How could their compatibility with the prevailing EIS at the Waterfront District be finessed by a SEPA exemption without them even having submitted a SEPA checklist?  

Do their subsequent DOE citations for stormwater permit violations and metal pollutant exceedances provide empirical evidence that the process whereby they were permitted to set up and operate at the Port of Bellingham was grievously flawed to the detriment of the environment and Bellingham residents?  I think that question is easy to answer!

 

D Netboy

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Larry Horowitz

Jan 08, 2024

Michael,

Thank you for taking time to confer with staff regarding their determination that the current use by ABC is outright “allowed” rather than “conditional.”

With all due respect, as one of seven city legislators whose responsibility is to adopt the city’s development regulations, I hope you’ll take the time to read - and have the ability to comprehend - the city’s Planned Action Ordinance (PAO) regulations under Chapter 16.30 BMC. In particular (with CAPITALIZATION added):

16.30.010 Applicability states: “The provisions of this chapter shall apply to ALL lands, ALL uses of those lands, and development activities of those lands within areas that have been designated planned action areas.” (As part of the Waterfront District, ABC’s land use and activities are subject to the PAO regulations.)

16.30.130.C Planned Action Designated states: “LAND USES and ACTIVITIES described in the preferred alternative in the EIS… ARE designated PLANNED ACTIONS pursuant to RCW 43.21C.031.” (ABC’s land use and activities are PLANNED ACTIONS that are subject to the city’s Planned Action Ordinance.)

16.30.160.A Application Requirements states: “Project applications for planned actions shall be reviewed according to the following process: Project applications submitted for qualification as a planned action shall include a SEPA CHECKLIST or such modified form as approved by the PAO responsible official and adopted consistent with WAC 197-11-315.” (ABC was required to submit a SEPA checklist or similar. ABC did not submit the required SEPA checklist or similar.)

16.30.160.C Determination of Consistency: “If the PAO responsible official determines that the proposed project qualifies as a planned action, the PAO responsible official shall issue a determination of consistency.” (The PAO responsible official did not issue a determination of consistency.)

16.30.160.F.1 Public Notice & Appeals “The PAO responsible official shall MAIL and POST NOTICE of determinations of consistency and determinations of inconsistency as follows: The planning and community development department, or applicant if authorized under this section, shall mail notice of a determination of consistency or a determination of inconsistency to:

“c. Owners of property within 500 feet of the site boundary of the subject property; and

“d. The mayor’s neighborhood advisory commission representative and any neighborhood association… for the neighborhood in which the project is proposed, and for any neighborhood within 500 feet of the project site boundary.”

Because the PAO responsible official never issued a determination of consistency, the required notice of determination was never mailed and posted. Consequently, the public was never provided notice nor was the public given the opportunity to appeal the determination.

The key issue is: It does not matter if the use is outright “allowed” or “conditional”. In either case, the city’s Planned Action regulations require all proposed land uses and activities to be qualified as a Planned Action by submitting an application with a SEPA checklist to the city. The city is then required to notify the public of their determination regarding consistency. Without this notice, the 21-day appeal period is never initiated.

As the public’s representative, you should be outraged that the city failed to provide notice and the opportunity for appeal, a failure that represents a breach of the public’s trust. I hope your outrage will motivate you to act on behalf of your constituents to remedy this situation.

This remedy would involve requiring ABC to submit an application for qualification as a Planned Action, along with a SEPA checklist. The city should then issue and mail a notice of determination regarding consistency. Doing so will provide the public a formal opportunity to appeal, an opportunity that the city was required to provide, but has failed to provide to date.

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Larry Horowitz

Jan 09, 2024

A correction of my two previous comments. After a Determination of Consistency is issued, the public has 14 days to appeal, not 21 days. The period to appeal a decision by the hearing examiner is 21 days.

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Atul Deshmane

Jan 22, 2024

This is an excellent thread and very helpful in understanding the situation. Thank you Larry, David, Tip, Doug, and Michael. I couldn’t help but wonder if all these procedural avoidances would have happened for a small business. I also wonder if there might be a better location or physical configuration for this recycling operation. If so, I wonder if this project has now muddied the water for any subsequent project.

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Larry Horowitz

Jan 23, 2024

Atul, thank you for adding your concerns to the mix. I’ll do my best to address them.

Procedural avoidances: It’s difficult to know exactly what happened behind the scenes that enabled ABC’s metal recycling center to be ‘permitted’ without complying with the city’s Planned Action Ordinance (PAO) regulations. At least one port commissioner has quite a bit of experience with metal recycling, but I have no information as to whether that played a role. 

Better location or physical configuration: ABC’s metal recycling center currently ships scrap metal by water. Access to the Bellingham Shipping Terminal seems to be an essential component for their location.

Subsequent projects: The Save the Waterfront organization led by Scott Jones and others has provided substantial evidence that ABC’s metal recycling center is likely to adversely impact potential future projects. For example, will Harcourt’s waterfront condominiums ever be completed? Will office buildings want to locate next to a metal scrap dump that is likely to remain onsite for 25-years? No one knows for sure, but those who already live nearby have already been adversely impacted. No doubt, it’s a bad situation.

The reality: Debating whether signing a long-term lease with ABC at the waterfront was a good idea is unlikely to have the desired impact. At this point, it may be best to re-focus energy on the…

Legal issues

- Did ABC, the port, and the city comply with the requirements of the city’s PAO? 

- Did the city fail to notify the public of ABC’s proposed land use and activities?

- Did the city fail to provide the public with an opportunity to appeal the city’s determination of consistency that was never issued?

- What needs to be done to bring this issue before the city’s hearing examiner for adjudication?

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