An administrative law judge has rebuked the Port of Vancouver for contacting Gov. Jay Inslee about a proposal to build the nation’s largest rail-to-marine oil transfer terminal at the port.
In a letter dated Wednesday, Cassandra Noble, administrative law judge for the state Energy Facility Site Evaluation Council, said the port sent apparently “improper” communications to the governor and another top state decision-maker.
At issue is the port’s July 7 letter, signed by CEO Todd Coleman, that expressed frustration with “continued delays” in the oil terminal’s review. Coleman then urged Inslee to direct the evaluation council to produce a publicly available timetable for the entire review process and to stick to it. The port’s letter, which it highlighted in a July 8 press release, was copied to Bill Lynch, chairman of the evaluation council, and the port’s three elected commissioners.
“As Chair Lynch is a decision maker in (the evaluation council’s) recommendation process, and Governor Inslee is the ultimate decision maker in the project application, these would appear to be improper ex parte communications while there is an adjudication going on,” Noble wrote in her letter to multiple parties involved in the oil terminal’s review.
In an email to The Columbian on Wednesday, Abbi Russell, a spokeswoman for the port, said the port was “currently reviewing” Noble’s letter and that it was “received by our attorneys today.”
No sanctions are expected in the matter. State law forbids ex parte contact in which one party communicates with a decision-maker without another party being present or knowing about it. The purpose of Noble’s letter, said Amanda Maxwell, a spokeswoman for the evaluation council, was two-fold: to serve as a warning about the rules and to rectify the situation by informing the parties of the port’s July 7 letter.
If the review process becomes marred by ex parte communications, Maxwell said, it can lead to the nullification of a project proposal. In an email to The Columbian on Wednesday, Jaime Smith, a spokeswoman for Inslee, said she “confirmed that our office did not and will not be responding to the port’s letter.” Smith also said: “This is a process that (the evaluation council) must oversee and enforce. It is not appropriate for the governor to get involved and he will continue to remain neutral.”
The port contacted a representative of the governor’s office before sending its letter, public records obtained by The Columbian show. The port also sought to publicly tout the letter in a news release.
Noble’s letter is the latest twist in a complicated process aimed at vetting a proposal by Tesoro Corp., a petroleum refiner, and Savage Cos., a transportation company, to build a rail-to-marine oil transfer terminal receiving an average of 360,000 barrels of crude per day. The port commission approved a lease for the project in 2013.
‘As soon as possible’
In her letter, Noble wrote that she has “no indication that a copy of (the port’s) letter was provided to the other parties. As with other correspondence, we have now posted a copy of the port’s July 7, 2015 letter to Governor Inslee on the website in the Tesoro folder.”
Noble also wrote: “I ask all parties to avoid any ex parte contacts to decision makers for the duration of this (evaluation council) process.”
In the port’s July 7 letter, Coleman took umbrage with the fact that the oil terminal’s draft environmental impact analysis won’t be published for public review and comment until late November. “This is simply unacceptable and has far-reaching consequences,” he wrote.
Coleman made note of the port’s mission of economic development and the millions of dollars it has invested in rail infrastructure at its Terminal 5 property, which would be the site of the proposed oil terminal.
“Every day (the evaluation council) delays its release of the (draft impact analysis) means another day this site will not provide an economic return to the community,” he wrote.
Public records obtained by The Columbian reveal how the port internally handled Coleman’s letter and the press release about it. On the morning of July 7, Ryan Hart, the port’s chief external affairs officer, sent an email to Coleman informing the CEO that he’d notified the governor’s office about the port’s letter.
“I spoke with Schuyler (Hoss, the governor’s director of international relations and protocol, and regional representative for Southwest Washington) this morning and let him know that you will be sending a letter to the governor today via email and hardcopy,” Hart said. “I also let him know we would be sending out a press release tomorrow.”
On the evening of July 7, Coleman sent an email to port Commissioners Nancy Baker, Jerry Oliver and Brian Wolfe with the letter attached. “Let me know if you have any questions,” Coleman said.
On July 8, the port polished the press release it would issue announcing the CEO’s letter to the governor.
In an email to Coleman, Russell, the port spokeswoman, sent the CEO a draft of the press release for his review. “We’re hoping to send this out as soon as possible today so we can be the ones to tell the story about what we’re asking for and why,” she said. “I’m in a series of meetings for the rest of the day, but can be reached by email or cell. Ryan can also help if you need something right away.”
Shortly after the port issued the press release that afternoon, Russell sent an email about the release, with a link to Coleman’s letter, to Jennifer Minx, a spokeswoman for Tesoro, and Jeff Hymas, a spokesman for Savage.
Tesoro and Savage, in partnership as Vancouver Energy, submitted their application to build the oil terminal on Aug. 29, 2013. Eventually, the evaluation council will make a recommendation to Inslee. The governor has another 60 days to accept or reject the proposal or send it back to the council.
