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Cleaning up Spokane River PCB pollution

News Release – June 6, 2016

EPA challenged over failures to clean up Spokane River PCB pollution

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Last week in U.S. District Court, Spokane River advocates challenged as inadequate an Environmental Protection Agency (EPA) proposal to remove the industrial pollutants known as PCBs from the Spokane River. They hope for a ruling that will end decades of foot-dragging and produce a reasonable, expeditious cleanup plan for the river.

“We are looking forward to showing Judge Barbara Rothstein how the EPA’s plan for PCBs in the Spokane River would frustrate and counter the letter and intent of the Clean Water Act,” said Richard Smith, Clean Water Act attorney representing Sierra Club and the Center for Environmental Law & Policy (CELP). “EPA’s excuses for not calling for a cleanup plan on a reasonable and expeditious timeline are just that – excuses, and we think the judge will see that.”

The federal Clean Water Act, passed in 1972, requires that polluted waters be cleaned up so that they are fishable and swimmable. Forty-four years later, the Spokane River still does not have a cleanup plan for PCBs.

On April 5 the federal Ninth Circuit Court of Appeals dismissed the appeal filed by Spokane County, Kaiser Aluminum Washington, LLC, and the State of Washington Department of Ecology (State Ecology). The Ninth Circuit decision lets stand the U.S. District Court’s ruling that the EPA cannot substitute the Spokane River Regional Toxics Task Force, a polluter-dominated committee process, for a cleanup plan with enforceable targets for Spokane River PCBs.

This case is important because the heavily used Spokane River flows through the second-most populated area in Washington State and is contaminated with PCBs, is an example of the failure of state and federal agencies to fulfill trust duties to protect the state’s waters, and involves the first-ever water quality standards based on fish consumption by humans in Washington State (adopted by the Spokane Tribe of Indians).

“River polluters control the Toxics Task Force that is using a ‘consensus process’ to write a plan to dodge the clean water law,” said Rachael Paschal Osborn of Sierra Club and CELP. “Does anyone seriously believe the polluters will impose expensive treatment requirements on themselves? This is why EPA must step in and prepare a plan with binding cleanup targets that actually protects the Spokane River.”

More about PCBs, and the legal case to clean up the Spokane River

The Spokane River is heavily polluted with PCBs. The federal Clean Water Act, passed in 1972, requires that polluted waters be cleaned up so that they are fishable and swimmable. Forty-four years later, in 2016, the Spokane River still does not have the cleanup plan for PCBs required by the Clean Water Act.

PCBs are a group of industrial compounds associated with liver dysfunction and cancer, and are now banned in the United States.  Washington State formally recognizes that the Spokane River is impaired for PCBs.  When a river is listed for PCBs, the federal Clean Water Act requires binding cleanup targets before issuing any permits that would add more PCBs to the Spokane River.  Such a cleanup plan has never been completed for the Spokane River, but state and federal agencies have issued pollution permits anyway, failing to include numeric limits. Ecology is due to renew those permits this year, but the agency is not expected to include numeric limits for toxics.

In 2011, the Washington Department of Ecology 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.

Subsequently EPA issued discharge permits to three Idaho dischargers – the City of Coeur d’Alene, Post Falls and Hayden Water & Sewer District – also not requiring PCB limits and also requiring participation in the Toxics Task Force.

Sierra Club & CELP filed a citizen lawsuit against EPA in 2011. The Spokane Tribe of Indians intervened in support of the citizen lawsuit, and the Department of Ecology, Spokane County and Kaiser intervened to defend EPA. U.S. District Court Judge Barbara Rothstein ruled in March 2015 that EPA’s failure to require a clean-up plan was an abuse of discretion and ordered EPA to submit a plan to the Court by July 2015.

EPA, Ecology, Kaiser, and Spokane County appealed the ruling, but EPA withdrew its appeal and submitted a document (which fails to require a cleanup plan) to the District Court. On April 5, the Ninth Circuit Court of Appeals dismissed the Ecology-County-Kaiser appeal in a one-paragraph decision. This means that a CELP-Sierra Club challenge to the EPA’s “non-cleanup plan” document will now move forward in District Court.

Last week, Spokane River advocates filed their objection with the federal judge, challenging EPA’s proposal. Meanwhile, Ecology is preparing to issue updated pollution permits to river dischargers in Washington State. The City of Spokane sued Monsanto Corporation because of the river’s PCB pollution.

Sierra Club and CELP are represented by Richard Smith and Marc Zemel of Smith & Lowney, a Seattle firm specializing in Clean Water Act litigation.  The Spokane Tribe of Indians is represented by Ted Knight.

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Spokane River PCB Cleanup is Not Adequate

News Release  –  April 6, 2016

Spokane River PCB Cleanup is Not Adequate:

Federal Appeals Court Dismisses State-County Appeal

Spokane County, Kaiser, and Department of Ecology had challenged decision to protect Spokane River

Contact –

  • Rachael Paschal Osborn (Sierra Club, Center for Environmental Law & Policy)  509.954-5641  rdpaschal@earthlink.net
  • Richard Smith (Smith & Lowney, PLLC)       206.860-2124 rasmithwa@igc.org
  • Dan Von Seggern (Center for Environmental Law & Policy) 206.829-8299       dvonseggern@celp.org
  • Ted Knight (Spokane Tribe of Indians)  509.953-1908  ted@tcklaw.com

Spokane:   Advocates for the Spokane River hailed an April 5 decision by the federal Ninth Circuit Court of Appeals dismissing the appeal filed by Spokane County, Kaiser Aluminum Washington, LLC, and the State of Washington Department of Ecology (State Ecology). The Ninth Circuit decision lets stand the U.S. District Court’s ruling that the U.S. Environmental Protection Agency (EPA) cannot substitute the Spokane River Regional Toxics Task Force, a polluter-dominated committee process, for a cleanup plan for Spokane River PCBs.

“The sewage and industrial treatment plants such as City of Spokane and Inland Empire Paper are moving forward with pollution control projects, but absent a clean-up plan, there is no target against which to measure success. After spending hundreds of millions of taxpayer dollars, these plans may not measure up,” said Rachael Paschal Osborn of CELP and Sierra Club.

The Spokane River is heavily polluted with PCBs and other toxic chemicals. Despite years of analysis, Ecology and EPA have failed to prepare a clean-up plan for the River. State and EPA-issued pollution discharge permits for municipal and industrial treatment plants in Washington and Idaho do not contain numeric standards limiting the release of toxins into the Spokane River.   The Washington Department of Ecology is due to renew those permits this year, but the agency is not expected to include numeric limits for toxics.

In 2011, the Washington Department of Ecology 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. Subsequently EPA issued discharge permits to three Idaho dischargers – the City of Coeur d’Alene, Post Falls and Hayden Water & Sewer District – also not requiring PCB limits and also requiring participation in the Toxics Task Force.

Sierra Club & CELP filed a citizen lawsuit against EPA in 2011. The Spokane Tribe of Indians intervened in support of the citizen lawsuit, and the Department of Ecology, Spokane County and Kaiser intervened to defend EPA. U.S. District Court Judge Barbara Rothstein ruled in March 2015 that EPA’s failure to require a clean-up plan was an abuse of discretion and ordered EPA to submit a plan to the Court by July 2015. EPA, Ecology, Kaiser, and Spokane County appealed the ruling, but EPA withdrew its appeal and submitted a document (which fails to require a cleanup plan) to the District Court. On April 5, the Ninth Circuit Court of Appeals dismissed the Ecology-County-Kaiser appeal in a one-paragraph decision. This means that a CELP-Sierra Club challenge to the EPA’s “non-cleanup plan” document will now move forward in District Court.

“Spokane River fish continue to be heavily contaminated with PCBs,” said Rachael Osborn, senior policy adviser for the Center for Environmental Law & Policy 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 the 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 MARCH 2015 U.S. DISTRICT COURT DECISION:

Judge Rothstein’s March 2015 decision found that the Task Force is not a proper substitute for a Clean Water Act-mandated limit on PCBs (Total Maximum Daily Load, or “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.

Judge Rothstein also ordered 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.

MORE 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 formally 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.

When a river is listed for PCBs, the federal Clean Water Act requires a cleanup plan (a TMDL) before issuing any permits that would add more PCBs to the Spokane River.  The Washington Department of Ecology is attempting to sidestep the law by not preparing a PCB cleanup plan, and issuing NPDES permits anyway.

Sierra Club and CELP are represented by Richard Smith and Marc Zemel of Smith & Lowney, a Seattle firm specializing in Clean Water Act litigation.  The Spokane Tribe of Indians is represented by Ted Knight.

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May Edition of Washington Water Watch is Here!

Check out our May edition of Washington Water Watch – we discuss the EPA’s new Clean Water Rule, a report released in January 2015 by Earth Economics about Outdoor Recreation in WA, and give updates on litigation and CELP in the News.

Click here to view the newsletter.

Thanks to everyone who came the Celebrate Water on May 21!  - Photo by Jon Anscher Photography

Thanks to everyone who attended, sponsored and volunteered for Celebrate Water on May 21! – Photo by Jon Anscher Photography