Archives


Spokane River wins long-overdue PCB-pollution cleanup plan

Federal Judge approves EPA plan to be completed by September 2024

News release

For immediate release

Contacts:

John Allison  jdallison@eahjlaw.com  (509) 951-3952

Marc Zemel marc.zemel@gmail.com  (206) 805-0857

Kathy Dixon kathleengdixon@gmail.com (509) 808-0118

Maggie Franquemont  MFranquemont@celp.org  (206) 829-8299

Ted Knight ted@tcklaw.com (509) 953-1908

Link:  Consent Decree

Spokane – The Spokane River and the hundreds of thousands who live near and along this treasured waterway have won a major victory with a federal judge’s approval of the U.S. Environmental Protection Agency’s (EPA) agreement to issue a mandated cleanup plan for cancer-causing PCBs polluting the river. The Judge’s ruling culminates a 10-year legal battle waged by Sierra Club and the Center for Environmental Law & Policy. The Spokane Tribe of Indians intervened in support of the federal lawsuit to enforce the federal law requiring an EPA clean-up plan after decades of inaction by the State of Washington.

“We need to get cancer out of the Spokane River,” said Tom Soeldner who volunteers with the Spokane River Team of the Upper Columbia River Group, Sierra Club. “We waited 15 years for Washington’s state government to do its job under the law before filing the lawsuit. After more than a decade in court, this win for the Spokane River means the cleanup plan finally will get done. Now EPA will be responsible for the Spokane River’s PCB cleanup plan.”

PCBs are dangerous to life including human life because they cause cancer and other diseases.  Tiny amounts in water concentrate as they move up the food chain. For many years, Washington’s Department of Health has issued a health advisory on human consumption of PCB-contaminated fish in the Spokane River.

Under the settlement, called a “Consent Decree,” approved today by U.S. District Court Judge Barbara Rothstein, EPA will complete a Total Maximum Daily Load (TMDL) for PCB’s within three years. A TMDL is a science-based approach to clean up polluted water in order to meet  State water-quality standards. A TMDL is a numerical value that represents the highest amount of a pollutant a surface water body can receive and still meet the standards.  For the Spokane River the TMDL will allocate the PCB pollution load to each of five identified PCB dischargers.

“EPA is the safety net when Washington State is unable to do its job cleaning up water pollution,” said John Allison, a Spokane River Team member. “We look forward to working with EPA in restoring and protecting the Spokane River for generations to come.”

PCB manufacture is banned in the U.S.  All PCBs entering the river are from old sources except for one:  Inland Empire Paper Co., which imports newsprint containing PCBs.  The other four government identified PCB dischargers are Kaiser Aluminum, and the Liberty Lake, Spokane County, and City of Spokane wastewater treatment plants. All five entities have discharge pipes that are permitted by the Washington State Department of Ecology (DOE). Currently the State’s pollution permits contain no limits on PCBs flowing into the Spokane River.  The TMDL will change how PCBs are regulated in the Spokane River watershed.
 

“We need clean, flowing water for the return of salmon,” said Kathy Dixon of the Spokane River Team. “Salmon along with our children and the river’s life are compelling reasons to comply with federal law and move forward with a science-based, river-protecting cleanup plan.

“The Spokane River will need ongoing community vigilance with government processes,” continued Dixon. “River advocates will need to ensure that the EPA develops a legally defensible PCB TMDL to meet all applicable water quality standards, including those of the Spokane Tribe of Indians.”

“We are happy to see this court case closed and look forward to a cleaner healthier Spokane River,” said Trish Rolfe, Center for Environmental Law & Policy’s (CELP) Executive Director.

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


Washington Water Watch: End of Year Edition

Dear Friends,

We are wishing you very happy holidays and hope you are doing well!

This year, as we all continued to be impacted by the COVID pandemic, CELP went through some big changes and accomplished exciting victories. We welcomed two new staff members, Maggie Franquemont as Staff Attorney, and Hillary Jasper Rose as Water Policy & Outreach Coordinator. We have adopted a hybrid working style as we build our team and the world continues to largely run over Zoom.

With the help of an incredible support system we achieved great things in 2021. CELP successfully encouraged the Department of Ecology to select the Nooksack River Basin (WRIA 1) as well as the Roosevelt Lake and middle tributaries (WRIA 58) as the next Washington basins to be adjudicated in coordination with the Nooksack Indian Tribe and Lummi Nation. We hosted our 3rd annual Clean & Abundant Water Lobby day as a virtual week long event helping pass bills for funding river basin adjudication, reducing plastic pollution, preventing seabed mining, and water re-use. CELP helped get a Watershed plan for WRIA 9 approved that would replace water used by new permit exempt well in the Green River watershed. We protected the Skagit River by submitting comments to Ecology in support of their denial of the proposed Golden Eagle water permit. We reached a settlement with the EPA on the Spokane River PCB levels. CELP also submitted comments to Ecology urging reform of Water Banking and the Trust Water Rights programs to curb water rights speculation.

We have accomplished a lot to protect our rivers. As we wrap up the year and look forward to our work in 2022, CELP has big goals. We plan to not only continue our work protecting waters in Washington but take a more proactive role in restoring our waters and fighting for more sustainable and equitable water policies and management.
You can help protect our waters by making an end of year gift to CELP. We are incredibly thankful to have met our $10,000 goal and match! Now our loyal supporter is increasing their donation to match donations dollar for dollar up to $15,000. Help us reach our new goal and be ready to tackle the legislative session and year ahead. You can also help further our mission by sharing our work with your friends and family.

You make our work protecting, preserving, and restoring waters in Washington possible! We are incredibly thankful for our supporters, members, partners, Board of Directors, volunteers, sponsors, staff, and community. Thank you for your dedication to protecting our water resources.

In this issue you will find an update on the Spokane River PCB case with a call to action, our comments on an Airway Heights water right application, information on the Salmon Recovery Plan, our thoughts on Puget Sound Partnership’s State of the Sound report, an article on water speculation, water and fish news, a recap on our Celebrate Water event, an announcement that we postponed our CLE workshop series with new dates TBA, and information on ways to support CELP.

Sincerely,
Trish Rolfe

Executive Director

Read Full Newsletter Here


Spokane River PCB Win & Call to Action

Spokane River wins long-overdue PCB pollution cleanup plan in EPA settlement

30-day public comment period opens:  please write in support

On December 1 in the Federal Register, the U.S. Environmental Protection Agency (EPA) published its settlement with Sierra Club, Center for Environmental Law and Policy, and plaintiff-intervenor, the Spokane Tribe of Indians, committing the agency to prepare a cleanup plan for cancer-causing PCBs that severely pollute the Spokane River.  For the River and life that depends on it, this settlement caps 25 years of advocacy, including 10 years of litigation filed by Sierra Club, the Center for Environmental Law & Policy, and intervenor Spokane Tribe of Indians. Our lawsuit sought to enforce the Clean Water Act mandate for an EPA cleanup plan, necessary because of decades of inaction by the State of Washington.

PCBs are a dangerous chemical that harms aquatic and human life, causing cancer and other diseases. Tiny amounts of the toxin concentrate as it moves up the food chain. The Washington Department of Health’s public health advisory, issued many years ago and still in effect, warns against consumption of PCB-contaminated fish in the Spokane River.

Under the settlement, called a “Consent Decree,” EPA will complete a Total Maximum Daily Load (TMDL) by September 2024. A TMDL is a science-based pollution cleanup plan.  This one will be designed to ensure that the Spokane River meets protective water quality standards issued by Washington state and the Spokane Tribe.

PCB manufacture is banned in the U.S. Most PCBs entering the Spokane River pre-date the ban, with one major exception: Inland Empire Paper Co. (IEP) recycles paper printed with imported inks that contain PCBs. 

The TMDL will require significant reductions in PCB pollution discharged to the Spokane River by the five industrial and municipal treatment plants located in Washington. In addition to IEP, Kaiser Aluminum and the Liberty Lake, Spokane County, and City of Spokane wastewater treatment plants each discharge PCBs to the river. All five discharge pipes are permitted by the Washington Department of Ecology, but these permits contain no limits on PCBs flowing into the Spokane River. The TMDL will change that.

The PCB cleanup plan is especially significant because of heavy use of the Spokane River by the public for recreation and the consumption of fish.
 

The settlement includes a 30-day public comment period. We will then present the settlement to the federal court for approval. Sierra Club and CELP are represented by Marc Zemel and Richard Smith of Smith & Lowney PLLC, a Seattle law firm specializing in Clean Water Act litigation. The Spokane Tribe of Indians is represented by Ted Knight.

Take Action and help a distressed river!  Deadline is January 3, 2022.

Click here to write your comment:

https://www.regulations.gov/commenton/EPA-HQ-OGC-2021-0828-0001

Consider making the following points:

  1. Most importantly, thank EPA and express your support for preparation of the PCB cleanup plan.  Public uses require a clean river.
  2. Insist that the cleanup plan be based on sound science. 
  3. Ask EPA to use state-of-the-art testing technology to measure PCBs.
  4. As a matter of human health and environmental justice, ask EPA to ensure that the cleanup plan complies with applicable water quality standards.

Contact the Spokane River Team for further questions:

John Osborn john@waterplanet.ws

Kathy Dixon kathleengdixon@gmail.com

John Allison  jdallison@eahjlaw.com

Tom Soeldner  waltsoe@allmail.net

Rachael Osborn. rdpaschal@earthlink.net


News Release: Federal judge asked to compel cleanup of cancer-causing chemicals in the Spokane river

News release

For immediate release

Federal judge asked to compel cleanup of cancer-causing chemicals in Spokane River

Lawsuit filed 10 years ago has not moved government to protect river, community

Link:  Motion for Summary Judgment

Spokane – River advocates are asking a federal judge to rule on their 10-year-old lawsuit to compel the U.S. Environmental Protection Agency (EPA) to issue a cleanup plan for one of Washington State’s most polluted rivers. The Spokane River is heavily polluted with PCBs. The lawsuit began in July 2011, when river advocates notified EPA of their intent to sue on behalf of the river unless EPA complied with federal law. In 2015, a federal judge ordered EPA to come up with a schedule for a cleanup plan. EPA has yet to write a cleanup plan for the Spokane River.

“The days of using the Spokane River as a chemical dump are over,” said Tom Soeldner of the Spokane River Team. “Year after year we waited patiently. Now we are asking the federal courts to stop polluters from flushing PCBs into the River.”

The federal Clean Water Act, passed in 1972, requires that polluted waters be fishable and swimmable. Although the State of Washington and EPA have been aware of PCB pollution for decades, the Spokane River still does not have a cleanup plan for PCBs.  Washington State Department of Ecology (WADOE) has continued to issue permits to polluters allowing them to dump PCBs into the Spokane River with no controls.

Washington Department of Health has issued a health advisory on PCB-contaminated fish in the Spokane River that has been in place for many years. PCBs have adverse effects on animals and human populations, including causing cancers in humans.  PCBs move up the food chain. Low concentrations in river water result in high concentrations in fish and other river life.

“‘Patience’ is the one word describing river advocates,” said John Allison, a Spokane River Team member. “Year after year we’ve waited. We’ve run out of hope and time with the agencies responsible for the Spokane River. We are returning to the courtroom to ask the federal judge to rule for the river and life.” 

“We need a clean, flowing water for the return of salmon,” said Kathy Dixon of the Spokane River Team. “Salmon along with our children and the river’s life are compelling reasons to comply with federal law and move forward with a cleanup plan.”

BACKGROUND:  10 YEARS OF LITIGATION TO CLEAN UP THE SPOKANE RIVER

PCBs are a group of industrial compounds associated with liver dysfunction and cancer, and are now banned in the United States. Washington State has formally recognized that the Spokane River is impaired for PCBs since 1996. 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.

In 2011, the WADOE 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 and the Center for Environmental Law & Policy (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. In April 2016 the Ninth Circuit Court of Appeals dismissed the Ecology-County-Kaiser appeal in a one-paragraph decision. This meant that the legal challenge to the EPA’s “non-cleanup plan” document could move forward in District Court. 

During the past five years, Spokane River advocates have waited patiently for WADOE and EPA to complete a cleanup plan and begin its implementation.  In the absence of a cleanup plan, Sierra Club and CELP are now asking the federal judge to compel a cleanup plan under the law.

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

Contacts:

    Tom Soeldner, Spokane River Team  waltsoe@gmail.com 

    John Allison, Spokane River Team. jdallison@eahjlaw.com 


Honoring Spokane businesses, American Whitewater for River Protection

For Immediate Release (February 26)

Honoring event will launch campaign to protect Spokane River, a test case for rivers statewide

Contacts:

Summary: The 13th annual Winter Waters celebration is jointly hosted by the Upper Columbia River Group of Sierra Club and CELP.  UCR Group, based in Spokane, will honor “Spokane River Flow Champions.”   Link to event webpage.

Who is being honored:

Timing, historical significance:    2020 is a pivotal year for protecting a clean, flowing Spokane River.  Decisions about how to manage water quantity and quality in the Spokane River have consequences for rivers throughout Washington.

Protecting Spokane River summertime flows.   In July 2019, the State Court of Appeals ruled in favor of Sierra Club, CELP and American Whitewater, holding that the Washington Department of Ecology failed to protect Spokane River flows as required by the Water Resources Act. (link). Ecology appealed, and on May 14 the state Supreme Court will hear oral argument on the case.

Spokane businesses – ROW Adventures (Peter Grubb), Silver Bow Fly Shop (Sean Visintainer), and FLOW Adventures (Jon Wilmot) – actively assisted in the petition and lawsuit asking the State to recognize and protect impacted businesses when setting flows for the Spokane River.  

The Upper Columbia River Group is also honoring Thomas O’Keefe of American Whitewater, for his central role in protecting the Spokane River.  American Whitewater is the primary advocate for the preservation and protection of whitewater rivers throughout the United States.  

Cleaning up the Spokane River’s PCB pollution.  Water quality in the Spokane River is already compromised, and now faces two major threats, from both the Trump Administration and the State of Washington.  The U.S. Environmental Protection Agency has rolled back fish consumption standards that control toxic PCBs.  These watered-down standards threaten public health.

The Department of Ecology is also weakening clean water standards through its new “Variance” process, which will allow municipal and industrial polluters to continue to put large quantities of PCBs into the Spokane River.  In 2020, the State will hold public meetings and take public comment on the Variance proposal. 

Launching a statewide campaign for a clean, flowing Spokane River.  At the March 6 honoring event, Sierra Club will launch a statewide effort to involve the public in agency decisions regarding the Spokane River.  With tribes leading efforts to restore salmon to the Upper Columbia Basin, Sierra Club’s campaign seeks clean, flowing water to support the return of spawning salmon to the Spokane River.

When: Friday, March 6th, 2020 6:00 pm- 9:00 pm 

Where: Spokane’s Historic Patsy Clark Mansion, 2208 W. 2nd Ave

Tickets: $40 per person, $70 for two (purchase online or at the door-please RSVP).  

Quotes (from the legal challenge to protect summertime flows, Spokane River):

       Peter Grubb, ROW Adventures:

“The importance of the Spokane River to those living and recreating in the area cannot be overstated. In fact, I believe that the Spokane River offers the best natural whitewater experience available in a major U.S. city. It offers a whitewater experience that is accessible to a broad cross-section of users, from beginning rafters to experienced whitewater paddlers.” 

“The 850 cfs [cubic feet per second] flow that was enacted as a minimum flow in the final Spokane River Instream Flow Rule could eliminate a major portion of our business. We have found that the whitewater trips at higher flows are more popular with clients than the float trips at lower flows. Because the Instream Flow Rule only protects low river flows (e.g. 850 cfs) for much of the summer season, it would reduce the amount of time that we can run whitewater trips and our business would be adversely affected.”

       Sean Visintainer, Silver Bow Fly Shop:

“River flow is critical for my business. In addition to absolute water levels, the aesthetics of the river determine how likely clients are to want to fish. At 750 cfs fishing the Spokane is far less attractive, and even at 850 cfs people are likely to choose other activities over fishing.  I believe that a higher minimum summer flow would be very helpful to my business. The river habitat is more productive for fish at higher levels, and the aesthetics are much better than at lower flows. At or below 850 cfs, the habitat where fish are found is more fragmented, water temperatures may be higher in some stretches, which is not good for trout, and the water moves at a much slower pace.
I estimate that we lost approximately 40 guiding days in the summer of 2015 due to the low river flows. At times we were unable to navigate portions of the river due to low water. Fishing restrictions due to the low flows and high temperatures (fishing was restricted to before 2:00 PM) also reduced fishing opportunities.”

       Jon Wilmot, FLOW Adventures:

“The Spokane River is a critical amenity for the city of Spokane and the surrounding area, and is one of the most popular recreational features of the area. Because of its proximity to the city, it is possible to run half-day or one-day trips without the need to drive significant distances. This outstanding accessibility makes Spokane River trips feasible for visitors with limited time. I am not aware of any other city that has this kind of local whitewater experience available to visitors. I depend on the River for a major portion of my business, and my ability to operate on the River is dependent on adequate instream flows.”

Event sponsors:  * Upper Columbia United Tribes * Adventure Travel Trade Association/Adventure 360 * Eymann Allison Jones Law Firm * Northwest Whitewater Association * American Whitewater  * Hydropower Reform Coalition * Columbia Institute for Water Policy * Rachael & John Osborn * Linda Finney & Tom Soeldner * Morton Alexander & Paige Kenney * Joyce & John Roskelley * Suzy Dix-Windermere * Allen “AT” Miller-Lukins & Annis Attorneys at Law * Jeff Lambert * Kathy Dixon & Barbara Rasero * Fred Christ *


Appeals Court: clean up Spokane River PCB pollution

News Release – August 17, 2016

Dept of Ecology must redo permit for Spokane County’s Wastewater Treatment Facility consistent with water quality laws

Contacts:

  • Rachael Paschal Osborn (Sierra Club) 509.954-5641 rdpaschal@earthlink.net
  • Dan Von Seggern (Center for Environmental Law & Policy) 206.829-8299 dvonseggern@celp.org

Spokane – On August 16, the Washington State Court of Appeals issued the third legal decision in favor of Spokane River advocates seeking to stop more PCBs from being added to the Spokane River from the Spokane County’s wastewater treatment facility. Three courts have now ruled that the Department of Ecology (“Ecology”) failed to do what the law requires: analyze whether the County’s discharge of PCBs has potential to violate state water quality standards, and if so, then impose appropriate limits to prevent such violations. The Appeals Court left intact an earlier ruling that the Spokane River Toxics Task Force is not an adequate or legal substitute for pollution control limits.

Sierra Club and the Center for Environmental Law & Policy (CELP) filed the lawsuit against Ecology in 2011, and praised the Court’s ruling. “The Court decision is another important step to clean up PCBs polluting the Spokane River,” said Rachael Paschal Osborn, with Sierra Club and CELP.

In rejecting the appeal by Ecology and Spokane County, the Appeals Court stands with earlier decisions that, because the 2011 permit lacks any limit on PCB discharges, it violates the Clean Water Act, and that other terms of the permit are vague and unenforceable. The Board remanded the permit back to Ecology to do over.

The Spokane River is among Washington State’s most contaminated river for PCBs. Exposure to PCBs through ingestion of Spokane River fish represents a public health hazard.  In 2008, the Washington State Department of Health issued fish consumption advisories, recommending limited or no consumption of fish from Lake Roosevelt and the Spokane River.

In 2011, Sierra Club’s Upper Columbia River Group and CELP filed this suit and a companion lawsuit in federal court to compel Washington State and the U.S. Environmental Protection Agency to uphold water quality laws for the Spokane River. The Spokane Tribe intervened in support of the federal lawsuit. In that case, a Seattle federal judge ruled that EPA was wrong not to require the Washington State to prepare a clean-up plan for Spokane River PCBs.

“The Clean Water Act requires the Department of Ecology to protect our public waters by evaluating a new facility’s potential for pollution and placing appropriate limits on discharges,” said Dan Von Seggern, staff attorney with the Center for Environmental Law & Policy. “Here, the court affirmed that Ecology must evaluate and limit PCB discharges from Spokane County’s wastewater treatment facility. This ruling is an important step in reducing PCB pollution in the Spokane River.”

Sierra Club and CELP are represented by attorney Richard Smith of Smith & Lowney PLLC.

Links:

More on the 2013 ruling upheld by state courts

The state’s pollution court, the Pollution Control Hearings Board (PCHB) ruled that the Toxics Management Program in Ecology’s 2011 permit “is “confusing, vague, and lacks definition of key terms. More importantly, it lacks deadlines by which Spokane County is to undertake and/or complete actions to reduce PCBs in influent to the facility. It lacks mandatory language requiring Spokane County to actually undertake necessary actions to achieve reductions in PCBs in both influent and effluent. . . . [R]ather than requiring Spokane County to meet water quality standards, the [Toxics Management Program] only asks that the County take steps so that ‘in time the effluent does not contribute to PCBs in the Spokane River exceeding applicable water quality standards.’ . . . The Permit must require Spokane County to comply with water quality standards . . . .”” (Paragraph 13, p 23-24) This requirement will need to include compliance with the Spokane Tribe’s downstream water quality standards that were adopted by the Tribe and approved by the U.S. Environmental Protection Agency in 2003.

Additionally, the Board ruled that the Regional Toxics Task Force fails “to require that “goals be achieved by a specified date. Nor does [this permit condition] establish an objective standard against which its accomplishments can be measured . . . . [The Toxics Task Force permit condition] does not impose any restrictions on quantities, rates, and concentrations of PCBs being discharged from point sources into the Spokane River. While the Board finds that the creation of the Task Force is a positive step toward bring the Spokane River into compliance with water quality standards for PCBs, it is uncertain that the Task Force will achieve any of its stated goals or achieve a measurable reduction in the discharge of PCBs. . . . Ecology is directed on remand to modify the [Toxics Task Force permit condition] to make clear that compliance with the Permit’s requirements take precedence over the work of the Task Force.”” (Paragraph 17, pp 26-27)

####