Spokane River Gets Its Day In Court

By Rachael Paschal Osborn, CELP Senior Policy Advisor

“This is the worst PCB contamination problem of any river in the state.” With these opening words, on Monday July 21 expert Clean Water Act attorney, Richard Smith of Smith & Lowney, argued to federal Judge Barbara J. Rothstein that the U.S. Environmental Protection Agency (EPA) failed in its duty to adopt a PCB cleanup plan for the beautiful but troubled Spokane River.Spokane River Fish Advisory

In 2011, CELP joined with Sierra Club to sue the EPA for failure to prepare a PCB clean-up plan (known as a “total maximum daily load” or TMDL) for the Spokane River. At issue is PCB pollution so severe that public health advisories warn against eating fish from the river.

PCBs are a group of industrial compounds associated with liver dysfunction and cancer.  Wildlife are also vulnerable to PCBs. Manufacture of these compounds is now banned in the United States, although they continue to persist in the environment due to past use.

The Spokane Tribe, whose reservation is downriver of the dischargers, intervened as co-plaintiff, in part because of the EPA’s failure to protect tribal water quality standards for PCBs and other toxic chemicals.   The Tribe’s standards are the first fish consumption-based standards adopted in Washington.  EPA’s disregard for these human health-based standards provides a cautionary look into how federal and state agencies will implement the newly announced fish consumption standards for the rest of the state.

On Monday, July 21, the matter of Sierra Club and CELP v. Dennis McLerran was heard by Judge Rothstein at the federal courthouse in Seattle. In her questions to attorneys for EPA and the Washington Department of Ecology, Judge Rothstein articulated her understanding of what is at stake in this case. Ecology has created a local “task force,” made up of Spokane River polluters, who now control what to do about PCB pollution. Ecology established the task force to substitute for both a cleanup plan and placing limits on PCB discharges from the five treatment plants on the river.

Judge Rothstein questioned whether the task force approach can achieve actual cleanup, given that there are no milestones, deadlines, or criteria for progress, and the consensus approach gives the polluters a veto over any action of the group. The Judge also noted the absence of PCB limits in pollution permits, which normally operate to control toxic discharges from treatment plant pipes. Additionally, Judge Rothstein expressed interest in the threats posed to members of the Spokane Tribe, who consume fish from the Spokane River. PCB concentrations increase as the river flows downstream, putting Spokane Reservation residents at particular risk.

Following argument, Judge Rothstein invited lawyers for all parties to her chambers and suggested the parties attempt to settle the case before she rules.  Stay tuned for what happens next.