In Spokane, the U.S. District Court Judge Barbara Rothstein issued a decision today in the matter of Sierra Club and Center for Environmental Law & Policy (CELP) versus U.S. Environmental Protection Agency (EPA). The Court ruled that EPA abused its discretion in agreeing to allow a polluter-dominated committee process substitute for a cleanup plan for Spokane River PCBs. Sierra Club & CELP filed the citizen lawsuit against EPA in 2011. The Spokane Tribe of Indians intervened in support of the lawsuit, and the Department of Ecology, Spokane County and Kaiser intervened to defend EPA.
“Today is a good day for the Spokane River,” said Matt Wynne, Spokane Tribal Councilman and Chairman of Upper Columbia United Tribes. “Judge Rothstein confirmed that delay in cleaning up the River is unacceptable, and found that deadlines and pollution limits are necessary.”
In 2011, the Washington Department of Ecology reversed course and abandoned efforts to adopt a PCB cleanup plan, largely because of political opposition by Spokane River polluters, who would be required to reduce PCBs in effluent by up to 99% to meet both Washington State and Spokane Tribe water quality standards. These polluters include Inland Empire Paper, Kaiser, and the Liberty Lake, Spokane County, and City of Spokane sewage treatment plants. Instead, Ecology formed the Spokane River Toxics Task Force and required the polluters to participate, but also gave them control over the goals and activities of the Task Force.
“The Spokane River is Washington’s most polluted river when it comes to PCBs,” said Rachael Osborn, senior policy adviser for the CELP and Spokane River Project Coordinator for Sierra Club’s Upper Columbia River Group. “Obtaining a PCB cleanup plan is essential to public health and especially important for people who eat fish from the Spokane River, including immigrant populations and Spokane Tribal members.”
“After years of delay on the part of the agencies, the Court today rejected the state’s ‘fox in chicken coop’ strategy of putting the polluters in charge of a cleanup plan,” Osborn continued, “Instead, the Court has ruled that a real cleanup plan, prepared within a reasonable timeframe, is required.”
THE FEDERAL COURT DECISION:
Today’s federal court decision finds that the Task Force is not a proper substitute for a Clean Water Act mandated TMDL, stating (at page 21):
There comes a point at which continual delay of a prioritized TMDL and detours to illusory alternatives ripen into a constructive submission that no action will be taken. With the Task Force as presently proposed, Ecology is coming dangerously close to such a point, and with EPA’s support. Accordingly, the Court finds that the EPA acted contrary to law in finding the Task Force, as it is currently comprised and described, a suitable “alternative” to the TMDL.
The court decision also dictates next steps, ordering EPA to report back to the Court within 120 days with a specific plan to complete a PCB TMDL (at page 22):
. . . EPA shall work with Ecology to create a definite schedule with concrete goals, including: clear statements on how the Task Force will assist in creating a PCB TMDL in the Spokane River by reducing scientific uncertainty; quantifiable metrics to measure progress toward that goal; regular checkpoints at which Ecology and the EPA will evaluate progress; a reasonable end date, at which time Ecology will finalize and submit the TMDL for the EPA’s approval or disapproval; and firm commitments to reduce PCB production from known sources in the interim.
ABOUT PCBs and TMDLs:
PCBs are a group of industrial compounds associated with liver dysfunction and cancer, and are now banned in the United States. Washington State recognizes that the Spokane River is impaired for PCBs. The Department of Ecology issues pollution permits (known as NPDES permits) to companies (such as Inland Empire Paper and Kaiser) and municipalities, allowing them to pollute the Spokane River up to certain thresholds.
The federal Clean Water Act requires a clean-up plan (called a TMDL or “total maximum daily load”) before issuing any permits that would add more PCBs to the Spokane River. The Washington Department of Ecology is attempting to side-step the law by not preparing a PCB cleanup plan, and issuing NPDES permits anyway.
Sierra Club and CELP are also defending their victory in their 2011 challenge to the pollution discharge permit issues to Spokane County’s new sewage treatment plant. In 2013, the Pollution Control Hearing Board (PCHB) ruled that the “state of the art” plant was discharging PCBs and had the potential to violate state and tribal water quality standards. The PCHB directed Ecology to issue a new permit with appropriate pollution limits. Instead of issuing such permit, Ecology and Spokane County appealed the matter to Thurston County Superior Court. That court affirmed the PCHB in the fall of 2014. Ecology and the County recently appealed the matter to the Court of Appeals. The County continues to operate the plant, and to discharge PCBs into the Spokane River.
Sierra Club and CELP are represented by Richard Smith of Smith & Lowney, a Seattle firm specializing in Clean Water Act litigation.
- Spokane River Fish Advisory – PCB Warning