Two oil refineries neighboring San Juan County are proposing expansion projects. Phillips 66 in Ferndale is looking to expand shipping and storage and Marathon Petroleum is proposing to add xylene to its product list, amid a myriad of appeals against it.

“While we are taking a victory lap on Marathon Refinery (formally Tesoro) in Anacortes, there is more to do to protect our waters. On November 1st our staff and 6 expert witnesses will stand up for the Southern Resident orcas and communities in regard to the Phillips 66 Ferndale Refinery’s Expansion,” Executive Director of Friends of the San Juans Stephanie Buffum said in an email to the Journal.

The Oct. 11 decision

Thurston County Superior Court Judge Chris Lanese issued a ruling on Oct. 11 overturning a decision made by the Washington State Shorelines Hearings Board to not accept the appeal that several environmental groups made against the Marathon Petroleum Final Environmental Impact Statement.

“That was unprecedented ruling,” Oliver Stiefel of Crag Law Center, the attorney representing the organizations, told the Journal.

The coalition of environmental groups — Evergreen Islands; Friends of the Earth; Puget Soundkeep Alliance; Stand.earth; Re Sources for Sustainable Communities; and Friends of The San Juans — approached the Shorelines Hearings Board with their EIS appeal in April 2018. In September 2018, the board stated that the petitioners’ appeal was too late.

The Shorelines Hearings Board hears appeals regarding permit decisions made by local government administrators regarding the Shoreline Management Act, according to the board’s website. When the board also rejected the groups’ appeal, the environmental coalition filed an administrative law review against the board, Skagit County and Tesoro on Nov. 30, 2018.

“Although the groups participated at every stage of Skagit County’s process and linked their appeal of the Environmental Impact Statement (EIS) with an appeal of a contentious shoreline permit, the Shorelines Hearings Board ruled that in order to challenge the EIS, the groups were required to challenge the first permit to rely on the EIS,” a press release from Crag Law Center said. “The groups had no notice that they were required to do so in order to preserve their legal challenge; the Shorelines Hearings Board created a new rule of law and then applied that new rule to deprive the groups their day in court.”

Lanese remanded the case back to the board to address the underlying merits of the EIS issues.

“The Superior Court reversed the decision of the Shorelines Hearings Board, ruling that the groups were not required to appeal the first permit,” the press release stated. “The case now returns to the Board for resolution of whether Skagit County properly evaluated impacts from increased vessel traffic and greenhouse gas emissions.”

History

The Final Environmental Impact Statement was released by the Skagit County Planning and Development Services in July 2017. According to Friends of the San Juans, that document did not adequately address many concerns.

The proposed project enable Marathon Petroleum to produce and ship up to 15,000 barrels per day of mixed xylenes through the Salish Sea, and export the product to predominantly Asian markets, according to an October press release by the environmental groups. Xylene is a petrochemical used in plastic and synthetics.

The expansion would add an additional 120 vessel transits per year passing the San Juan Islands, the press release explained. The project was first proposed by Tesoro, which later changed its name to Andeavor. Marathon Petroleum then purchased Andeavor in October 2018 and now owns the Anacortes facility.

The coalition has been appealing the various stakeholders to address inadequacies they see in the Final Environmental Impact Statement since the Skagit County Hearing Examiner issued the first conditional permit. According to the examiner’s Notice of Decision, 55 people gave public comments during a Nov. 2, 2017, hearing. Friends of the San Juans noted in an April 2018 press release that a total of 7,500 comments were received by the examiner’s office, with many highlighting the flaws in the FEIS. The permit was issued Dec. 7, 2017.

The battle continued in 2018 when the group appealed to the Skagit Board of Commissioners, which upheld the hearings examiner’s decision in March. The commissioners determined it could only consider the law and policies behind the Shoreline Management Act and therefore was limited to only environmental impacts that affect the shoreline area, according to the meeting minutes.

The coalition then took the appeal to the Washington Shorelines Hearings Board.

One of the 55 comments during public testimony on Nov. 2 came from San Juan County Health Officer Dr. Frank James, who claimed that residents were not adequately educated about the hazards of a xylene spill. Due to xylene’s toxic and flammable nature, a spill must be handled differently than an oil spill, James explained. Residents attempting to assist in the event of a spill, he added, may believe the right thing to do immediately help with clean-up until trained and equipped professional staff can arrive. However, without proper education and personal protective equipment, those citizens would expose to danger, he said.

“The refinery is really right in our backyard,” Buffum told the Journal, adding that what happens at that refinery could easily impact San Juan County residents. The Anacortes refinery is 20 miles away from Friday Harbor and Lopez is just a little over 10 as the crow flies.

Now what?

Once the final order — prepared by the prevailing party Crags Law on behalf of the environmental organizations — is signed by both parties and the judge, Marathon Petroleum will have 30 days to appeal. As of Oct. 23, Stiefel said that the signing of the order was still in process and had not yet been signed by all parties.

If the ruling is appealed, according to Stiefel, the case goes to the Washington Court of Appeals Division II, in Tacoma, Washington. If Marathon chooses to not appeal, the case returns to the Shorelines Hearings Board where impacts to the Salish Sea, to the endangered Southern resident whales and to human health concerns will be addressed.

Phillips 66

The appeal of Phillips 66’s proposed expansion will take place on Nov. 1 in Whatcom County.

On July 19, Whatcom County Planning and Development Service released a State Environmental Policy Act Mitigated Determination of Nonsignificance, a document that states that the department did not see how the proposed project would negatively affect the environment, regarding the expansion. The proposal is for a new 300,000-barrel and an 80,000-barrel oil storage tank to be installed at the company’s existing tank farm. At 42 gallons a barrel, that is a total of nearly 15,960,000 gallons of crude oil. Friends is appealing the county’s determination.

Buffum explained that while Phillips 66 is creating a cleaner-burning fuel by taking out sulfur which reduces carbon dioxide, the facility’s increased oil storage and the resulting tanker traffic worries her.

“We want to throw them a bone, but the refinery needs go the full mile,” she told the Journal. “We want [the refinery] to do it all right, not just partly right.”

Ways in which the company could continue to move product but appease environmental concerns, Buffum added, would be to invest in newer quieter ships. She noted that transporting overland, such as via railroad, as much as possible, might be a better option.

Buffum told the Journal that Friends of the San Juans would like the refinery to quantify all project-related vessel traffic and evaluate the project’s potential adverse impacts, including oil spill risks, to the endangered orcas and their habitat.

“We want [refineries] to take into consideration this place — the Salish Sea — and all that live in and around it,” she said.

Mandi Johnson contributed to this article.