July 22, 2010 in City

County to fight river lawsuit

Treatment plant depends on contested EPA regulations
By The Spokesman-Review
 
Christopher Anderson photo

Water spills over the Spokane River Avista North Channel Dam on Wednesday.
(Full-size photo)

About the suit

The lawsuit asks the federal court to suspend EPA discharge regulations while deciding whether to declare them invalid.

Spokane County plans to oppose a federal lawsuit that could impair its ability to open a new sewage treatment plant in January 2012.

Commissioners moved to defend the county’s interests after learning late Tuesday that Post Falls and the Hayden Area Regional Sewer Board had sued to block new Spokane River water quality standards.

The county will be represented by the regional Foster Pepper law firm, which helped the county negotiate the new regulations.

The Idaho dischargers’ lawsuit, filed Friday in U.S. District Court in Boise, names only the U.S. Environmental Protection Agency.

In May, the EPA approved the standards developed by the Washington Department of Ecology to regulate the total maximum daily load of contaminants allowed into the river.

The lawsuit asks the federal court to hold the TMDL regulations in abeyance while deciding whether to declare them invalid.

Implementation of the regulations, aimed at reducing oxygen-robbing contamination, would allow the county to get a discharge permit for the treatment plant it is building.

Much of the incorporated and unincorporated Spokane Valley faces a construction moratorium if the treatment plant’s opening is significantly delayed.

Post Falls, the Hayden sewer board and Coeur d’Alene view the standards as a threat to growth.

The Coeur d’Alene City Council voted Tuesday to join the litigation.

Boise attorney Gary Allen, who represents Post Falls and the Hayden sewer board, declined to comment on the lawsuit.

The complaint seeks to overturn the standards on 15 counts, including allegations that they place a disproportionate burden on Idaho dischargers.

Regulators say the standard actually is the same for all dischargers, but problems with statistics, computer modeling and testing frequency create an apparent discrepancy between large and small dischargers.

However, regulators acknowledge their explanations have been unconvincing.

Department of Ecology spokeswoman Cathy Cochrane said environmentalists made that point Wednesday in a meeting of a dozen interested organizations and government agencies.

“It was obvious that we do need to rephrase for the Idaho dischargers and politicians so they understand why there’s that difference,” Cochrane said.

Even Sierra Club spokeswoman Rachael Paschal Osborn said the standards are more stringent for Idaho dischargers.

“The model that they have used has been played with and manipulated,” she said in an interview. “You really kind of wonder what assumptions have gone into it.”

However, Osborn agreed with Spokane County officials that implementation of the new regulations should not be delayed.

“That would be terrible because there are some things that need to be done,” Osborn said. “While we have concerns about the TMDL in some respects, we certainly would not want to see all work stop.”

The Sierra Club thinks the standards are too lenient, but Osborn said the group hasn’t decided whether to file a lawsuit of its own.

Meanwhile, Avista spokeswoman Anna Scarlett said the utility has no plan to challenge the TMDL regulations.

The company will be required to pick up some of the river cleanup burden previously limited to dischargers. Avista’s dams trap contaminants, such as phosphorus, that feed oxygen-consuming algae.

“We will stay engaged as these appeals go through the process so we can protect Avista’s interests,” Scarlett said.

Doug Krapas, environmental manager for Inland Empire Paper, said the company, which has a mill that discharges into the river at Millwood, will resort to litigation only as a “last-ditch effort” to stay in business.

Krapas said Inland Empire Paper – owned by the Cowles Co., which also owns The Spokesman-Review – can’t meet the new standards with available technology. To comply, mill officials need a proposed program for trading phosphorus-elimination credits.

Christine Psyk, regional EPA assistant watershed director, said her agency will continue working with Washington and Idaho environmental regulators to develop a trading program. However, she said the lawsuit will “put a damper” on the effort by siphoning resources and inhibiting discussions.

Psyk said EPA officials were disappointed that the Idaho dischargers didn’t wait for final details before suing.

“It’s in the permits that all this will flesh itself out, and it would be good if the dischargers would wait to see what those permits look like,” Psyk said.

The EPA issues discharge permits in Idaho, while in Washington, the task falls to the state Department of Ecology.

If the court does not hold the regulations in abeyance pending the lawsuit’s outcome, Cochrane said the DOE expects to issue permits to existing Washington dischargers within a month.

Spokane County’s application for a permit would be expected about the same time. State officials would have six months to review the application.

After public review, the county could receive its discharge permit next spring or summer, Cochrane said.


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