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

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Citizen Action Motivates Spokane PCB Suit Against Monsanto

Caution Label PCBsOn July 31, 2015 the City of Spokane filed a legal complaint against mega-chemical manufacturer Monsanto and associated corporations, claiming the chemical manufacturing giant has engaged in nuisance, negligence, and product liability.  The complaint describes the destructive nature of PCB pollution, and alleges Monsanto knew decades ago that it was manufacturing and distributing a chemical that was not fit for use, the dangers of which it failed to provide notice to its customers.

The complaint, along with a press release circulated by the City’s Dallas, TX attorneys, explains why the City felt the need to file this lawsuit:   “According to a recent federal case, Spokane will become subject to a PCB TMDL, or Total Maximum Daily Load, which is a maximum amount of pollutant that a body of water such as the Spokane River can receive while still meeting water quality standards.”

That federal case is Sierra Club & CELP v. U.S. Environmental Protection Agency.  On March 16, 2015, U.S. District Court Judge Barbara Rothstein ruled that EPA had abused its discretion in failing to require a PCB clean-up plan for the Spokane River, and ordered EPA to file with the court by July 14 a schedule for adopting that plan.  For more info, see our previous post:  Federal Court Rules: Evict Fox from Chicken Coop.

The City is correct.  The court-mandated PCB TMDL will establish waste load allocations that will be translated into limits on the amount of PCBs the City can discharge into the Spokane River via its treatment plant, stormwater system, and Combined-Sewer Overflow (CSO) system.

Spokane is one among several polluters who will be required to substantially upgrade treatment facilities to remove PCBs from effluent before it is discharged to the Spokane River, thanks to the Sierra Club/CELP legal action.  Other affected polluters include the new Spokane County treatment plant, Liberty Lake Water & Sewer,  Kaiser Aluminum, and Inland Empire Paper.

The City’s lawsuit is one of four such suits to be filed against Monsanto in the last few months.  Other municipal plaintiffs seeking damages for harm to the environment include San Jose, CA, San Diego, CA, and the Port of San Diego.

There have been winners and losers so far in the Monsanto PCB liability lottery, including reported settlements for PCB dumping in South Wales, England, and for personal injuries to former employees and others harmed by Monsanto’s Anniston, Alabama manufacturing facility.  However, last month a jury returned a verdict in Monsanto’s favor in a St. Louis, Missouri lawsuit brought by individual’s claiming harm from PCB exposure.

In March 2015, the newsblog ThinkProgress, reporting on San Diego’s lawsuit, described the difficulties of suing companies for historic pollution practices.   Sadly, it’s much harder to prove liability when the “scene of the crime” is a public resource like a river or a bay.

Suing over historic pollution is not a new concept for the Spokane watershed, however, given our history with massive silver and lead mining pollution in the Coeur d’Alene Basin, and the Midnite Mine uranium Superfund site on the Spokane Indian Reservation, not to mention Teck Cominco’s discharge of 9 million tons of toxic slag into the Lake Roosevelt.

Usually it is Native American Tribes and conservation groups engaged in the battles to clean up public resources like the Spokane River.   Welcome to the club, City of Spokane.

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

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.


Airplanes vs. Fish: Boeing Seeks Special Laws to Pollute

Biomagnification of Mercury up the Food Chain

Biomagnification of Mercury up the Food Chain
(National Park Service graphic)

What do the Spokane River and a Boeing 777 have in common?   A lot of toxic pollution, and that’s not a joke.

Washington Governor Jay Inslee just announced a special legislative session (starting Thursday, November 7) with the goal of keeping Boeing’s 777X airplane manufacturing business in Washington.  The governor wants a special package that will persuade Boeing from moving on to a friendlier tax and transportation state.Some of the package makes sense.  Investment in infrastructure to reduce Puget Sound freeway gridlock, workforce education, and tax incentives all connect to the goal. But the package also includes a “human health and water quality” element that will undermine proposed updates to water quality laws that are supposed to protect the health of the many Washingtonians who eat fish.

Notwithstanding the bureaucratese, the message is clear:  clean rivers are not as important as jobs.  Unfortunately, this formulation does not account for the benefits of clean water to the economy, and the costs to public health of toxic rivers.

WA DOH Statewide Fish Consumption Advisories Map (11-5-13)

Statewide Fish Consumption Advisories
(WA Dept of Health 11-5-13)

The problem in a nutshell:  Washington’s water quality laws are based on calculations of how much fish is safe to eat from polluted waters.  Many state rivers are polluted to the point that fish consumption is unhealthy.  For example, people who eat fish from the Columbia River and its tributaries (once home to some of the most abundant fisheries on earth) are now reading public health advisories posted at their long-time fishing spots.

The more fish you eat, the greater your toxic exposure.   This affects a lot of people in Washington, including Native Americans (who have dietary traditions going back thousands of years), along with a lot of non-tribal citizens who appreciate the abundance of our fresh and marine waters.   But, contrary to practical knowledge, the current standards assume people eat only 6.5 grams of fish per day, or about 8 ounces per month.

6.5 grams

From left to right, 6.5, 54, 157 and 250 grams of fish
(Photo: Heather Trim)

It’s an environmental justice issue, as Prof. Catherine O’Neill of Seattle University Law School documents in a recent blog post.  And, the current assumptions are just plain wrong.  Calculating water quality standards based on “just one fish meal per month grossly understates contemporary consumption rates.”

Given the inaccurate baseline for fish consumption quantities, the Department of Ecology began to update the standards a few years ago.   But along the way, Boeing, Inland Empire Paper (in Spokane) and other polluting industries demanded that Ecology slow or halt the revision process.   It is true that updated standards would impose stricter limits on the amount of pollution these industries are allowed to pipe into state rivers.   It is also a fact that the new standards would be based on what is needed to protect public health.

Boeing’s lobbying efforts succeeded – its intervention stalled the update process.   In March 2013, Seattle-based InvestigateWest published a riveting account of Boeing’s influence over the governor’s office:  “Boeing Interests Trump Health Concerns in Fish Consumption Fight.”

State efforts to dodge accountability are impressive.  Ecology convened a “stacked deck” advisory group, but environmental groups and Tribes boycotted.  Boeing went to the governor’s office, and got the delay it wanted.  Legislative skirmishes ensued in 2012 and 2013.  Public interest law firm Earthjustice filed suit on October 11, challenging the U.S. Environmental Protection Agency’s failure to step in when Washington failed to adopt standards that protect public health.

Janette Brimmer, Earthjustice attorney, puts it succintly:  “EPA’s inaction continues to allow polluters to discharge mercury, PCBs, lead and other toxins at levels that contaminate fish, pollute our waters, and threaten public health.  Everyone agrees Washington’s fish consumption rate and human health standards are under-protective. We can’t allow EPA to continue kicking the clean water can down the road.”

Ecology’s public information meetings continue to whitewash the problem.  If and when Ecology does adopt standards that protect public health, it has announced it will also adopt various loopholes that could allow polluters to delay compliance for decades.   At his press briefing, Gov. Inslee indicated that there would be no legislation on this issue, raising concerns that a backroom deal may have been struck.

Boeing Renton facility

Why does Boeing care about fish consumption rates to the point that this is part of Governor Inslee’s package?  According to Ecology’s permit website, Boeing holds more than a dozen pollution permits for its industrial facilities in Everett, Renton and Auburn.

These permits allow the company to discharge polluted stormwater into Puget Sound and air pollutants that inevitably return to earth.  Link here to view Boeing’s water pollution permits (type “Boeing” into the “Facility/Project” tab, then click on “search”).  And here for air pollution permits.

Apparently, airplane manufacturing causes a lot of pollution.  When it rains, that pollution runs off of Boeing’s industrial tarmacs and into Washington state waterways.

Native American leader Billy Frank Jr. sensibly suggests in his November Being Frank column that Boeing needs to join the larger community in a discussion about how to solve this Gordian knot.  “We don’t want Boeing to leave the state or go out of business. We want them to keep making planes here in western Washington, but at the same time we have to protect the health of everyone who lives here by adopting a more realistic fish consumption rate.”

So far, it’s “my way or the skyway” with Boeing planes pitted against clean water and healthy fish.  Unfortunately, I can’t serve a 777X at my dinner table.

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Cow Pie Water Wars Continue

Cattle in Streams (

Washington State ranchers are threatening to go the Legislature in 2014 to defend their “right” to pollute state waterways.

It has long been understood that cows pollute.  A lot.  A mature cow produces between 120 to 150 pounds of manure, etc. each day.  And where the cow has access to a stream, it will cause all kinds of problems, including pathogenic pollution that is harmful to humans and aquatic life.   Cattle trample stream beds and banks, causing erosion and destroying riparian vegetation.

The U.S. Environmental Protection Agency lists livestock manure as one of the last major uncontrolled sources of contaminants in the United States. (See charts at the end of this article).

On August 15, 2013, the Washington Supreme Court ruled that the state water pollution agency does have authority to order cows out of streams to protect water quality and aquatic habitat.  In Lemire v. Department of Ecology, the Court held that the state water pollution act is stronger than the federal Clean Water Act, and authorizes enforcement against ranching operations that pollute public waterways.

According to an article in the Oct. 12, 2013 Spokesman-Review, representatives of the agricultural community are now asserting that they intend to try to change the law, rather than clean up state streams.

Washington has a number of laws and programs to assist ranchers to get their cattle out of state waterways.   State policy allows ranchers to divert water to stock tanks, without a water right, to make sure their cattle have water.  For better or worse, ranchers are allowed to pump unlimited use of groundwater with a permit.  Any argument that ranchers must have access to streams in order to provide water their cattle is simply not true.

The Washington State Conservation Commission  offers several programs to help farmers protect streams.  The Voluntary Stewardship Program provides financial incentives for ranchers and farmers to protect streamside areas in lieu of Growth Management Act critical areas ordinances – a controversial step back from growth planning that was adopted to satisfy the agricultural community.

CREP buffers in Whatcom County (Photo: Washington Conservation Commission)

The Conservation Reserve Enhancement Program (CREP) is a joint state-federal funding program that pays ranchers to restore riparian habitat and create no-cow zones along streams.   The program results are phenomenal, including more than 1,000 projects in Washington, 735 miles of streams protected, 5.2 million native trees and shrubs planted, and 1.5 million feet of fencing.  At no cost to the landowner.

21st century environmental management has moved on from the 19th century mentality that a landowner can do anything he or she wants with her property.   There’s an ancient Latin expression – “sic utere tuo ut alienum non laedus” – which roughly translates to mean that a person’s right to use their property does not include the right to injure the property of others.  (It’s also been described as “your right to swing your fist ends at my nose.”)

Perhaps most important, Washington’s waters are owned by the public. No one has the right to pollute the commons.   This is a principle that should not – and indeed cannot – be legislated away.


From EPA’s Animal Feeding Operation Website:

Table 1 Reference: National Water Quality Inventory: 1998 Report to Congress (EPA, 2000a). AFOs are a subset of the agriculture category. Summaries of impairment by other sources are not presented here.

Table 1. Summary of U.S. Water Quality Impairment Survey
Total Quantity in US Amount of Waters Surveyed Quantity Impaired by All Sources Quantity Impaired by Agriculture
Rivers             3,662,255 miles 23% of total 840,402 miles 36% of surveyed 248,028 miles 59% of impaired 170,750 miles
Lakes, Ponds, and Reservoirs             41,600,000 acres 42% of total       17,400,000 acres 39% of surveyed 6,541,060 acres 31% of impaired 2,417,801 acres
Estuaries             90,500 square miles 32% of total 28,889 sq. miles 38% of surveyed 11,025 sq.miles 15% of impaired 1,827 sq. miles
Table 2. Five Leading Pollutants Causing Water Quality Impairment in the U.S. (Percent of incidence of each pollutant is shown in parentheses, e.g.,  siltation is listed as a cause of impairment in 38% of impaired river miles.)
Rank Rivers Lakes Estuaries
1 Siltation (38%) Nutrients (44%) Pathogens (47%)
2 Pathogens (36%) Metals (27%) Oxygen-Depleting Substances (42%)
3 Nutrients (29%) Siltation (15%) Metals (23%)
4 Oxygen-Depleting Substances (23%) Oxygen-Depleting Substances (14%) Nutrients (23%)
5 Metals (21%) Suspended Solids (10%) Thermal Modifications (18%)