Naiads

Water: law/policy/politics/ethics/art/science

Federal Court Rules on Spokane River PCB Cleanup Plan: Evict Fox from Chicken Coop

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The Spokane River has the worst PCB pollution of any river in Washington state.  On March 16, U.S. District Court Judge Barbara J. Rothstein ruled that the U.S. Environmental Protection Agency and Washington Department of Ecology have engaged in troublesome delay in studying and addressing the problem of Spokane River PCB pollution.

Of particular concern to the Court is the substitution of the “Spokane River Toxics Task Force” as an alternative to preparing a water quality cleanup plan (known as a Total Maximum Daily Load or TMDL) as explicitly required by the Clean Water Act.  The Court’s decision observes that the Task Force concept lacks metrics to determine “measurable progress,” lacks deadlines, indeed lacks any connection to creating a cleanup plan,and that there has been a “worrying lack of progress made with respect to scientific data” to determine where the PCBs are and how to clean them up.

What is this Spokane River Task Force?  It is a committee composed of Spokane River polluters* who have permits, issued by the Department of Ecology, that require them to participate in the Task Force rather than actually clean up the toxic pollution they discharge to the River.   The interlocal agreement establishing the Task Force commits the polluters (and a few third party hangers-on) to study the hell out of the Spokane River PCB problem.   Actual cleanup actions, however, are not required.

For example, the Task Force’s definition of “measurable progress” include “inputs” (attending meetings) and “outputs” (preparing reports, plans and studies).   Of course “outcomes” are also important – including reduction of toxics in the Spokane River – but there is nothing in the Task Force mission that requires the polluters themselves to reduce pollution.  Indeed, the very purpose of the Task Force is to allow the polluters to avoid responsibility for removing the toxics they discharge to the river.

The Court’s March 16 decision precisely nails the problem:

“The record indicates that the Spokane River has been on the 303(d) list since 1996 and after nearly 20 years still contains the worst PCB pollution in the state. Despite this known problem and Ecology’s prioritization of the Spokane River PCBs, a substantial percentage of the pollution sources remain unknown.”

“. . . it is significant that no effective limitations [on polluter permits] have been put in place by the Board and the only significant condition imposed by the Board has been that point polluters participate in the Task Force.”

“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.”

Strong stuff.   At its core, the Court recognizes that Spokane River polluters should not be in charge of deciding how much they are allowed to pollute.

Most importantly, the Court directs EPA and Ecology to come up with a PCB cleanup plan for the Spokane River in a reasonable time frame.   The agencies must report back to the Court within 120 days with:

“. . . 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 reducing PCB production from known sources in the interim.”

After 20-plus years, a PCB cleanup plan is finally on the radar screen for the Spokane River.  Thanks is due not to the Department of Ecology or the Environmental Protection Agency, agencies that have failed to live up to their statutory duties (not to mention their very names), but to the checks and balances of our democratic system, and to a federal court that knows a fox when it sees one.

 

*Spokane River polluters in Washington include Liberty Lake Water & Sewer District Water Reclamation Facility (sewage treatment plant), Inland Empire Paper, Kaiser Aluminum, Spokane County Water Reclamation Facility (sewage treatment plant) and the City of Spokane’s Riverside Park Water Reclamation Facility (sewage treatment plant).  The use of euphemistic names for the sewage treatment plants is a common tactic used by municipal polluters to obscure public understanding of their activities.

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Author: naiads

Opinionated public interest water lawyer

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