Wheat Growers Called Ag Before Settlement Killed Gregoire Said Lobbyist Threatened Lawsuit Over Field-Burning Accord

Washington state’s top lawyer says wheat growers threatened to sue to block a legal settlement of a Spokane clean-air group’s federal lawsuit against field burning.

Washington Attorney General Christine Gregoire says a growers’ lobbyist called her shortly after Washington Department of Ecology negotiators signed the settlement with Save Our Summers on Aug. 23. Ecology officials later rejected the settlement.

“It was (lobbyist) Ray Schindler who called me. He said they were about to file a lawsuit” challenging the settlement, Gregoire said in a recent interview.

Schindler, lobbyist for the Washington Association of Wheat Growers, denies threatening more litigation.

“I had no authority to pursue a lawsuit. But we were concerned how this was coming down, and I wanted to know why it happened,” Schindler said.

The wheat growers were upset about the settlement because they weren’t present when it was signed by Ecology, SOS and the U.S. Environmental Protection Agency, Schindler said.

The growers had left the negotiating table a week earlier, saying they couldn’t accept the settlement terms, which called for more regulations to snuff burning. The negotiations continued without them.

“I’ve known Chris (Gregoire) for a long time. I wanted to know why the attorney general was doing this. I told her we weren’t too happy. She promised me she’d take a more direct interest in the issue,” Schindler said.

By the end of the week, on Aug. 25, Ecology Director Tom Fitzsimmons declared the pact dead. Fitzsimmons said he’d decided to abort the settlement because the growers hadn’t signed on.

Fitzsimmons’ decision was based on his “immediate gut reaction” that a settlement without the growers was wrong, Ecology spokeswoman Sheryl Hutchison said last week.

“Anything else that happened that week was secondary,” she said.

Gregoire’s involvement in the controversy surfaced for the first time in memos obtained by The Spokesman-Review in a recent public records request.

Ecology withheld some of the memos to Gregoire from the week of the collapsed settlement, citing attorney-client privilege.

Gregoire said it was Fitzsimmons’ decision to kill the settlement, and her only role has been to represent Ecology in SOS’ 1999 lawsuit to curtail stubble burning, filed in U.S. District Court in Spokane.

“It’s our job to defend them,” Gregoire said.

The August settlement would have ended the SOS lawsuit. Now, it is scheduled for trial in July 2001.

Gregoire’s stance is ironic, said Karen Lindholdt, a Spokane attorney for SOS.

“This is the first we’ve heard of Gregoire’s involvement in our case,” Lindholdt said last week. “To the nation, she’s a symbol of fighting Big Tobacco. Yet in her own back yard, there are hundreds of people sick from smoke, but she refuses to get involved.”

Gregoire said she was informed of the SOS-Ecology settlement by Leslie Seffern, an assistant attorney general on her staff who represents Ecology.

Seffern sat in on the five months of mediated talks approved by U.S. District Judge Robert Whaley to settle the SOS lawsuit.

In the lawsuit, SOS claims Ecology isn’t protecting children and adults with lung disease from field burning. The group invoked the Americans With Disabilities Act, saying air quality regulators must act to protect the civil rights of the disabled.

In an amicus brief requested by Judge Whaley and submitted this summer, the U.S. Justice Department sided with SOS, saying relief under the ADA must be considered. The government brief caused a stir among state and federal clean-air regulators.

Although the wheat growers’ association wasn’t a party to the lawsuit, the industry group was invited to participate in the settlement talks.

Ecology and EPA insisted on including the growers and SOS reluctantly agreed, said Roe Roberts, an Eastern Washington University professor and the group’s chairwoman.

“Our feeling was they were going to sabotage the talks. We were right,” she said.

On Aug. 17, in the closing days of the negotiations, the growers balked. They said interim air quality standards in the proposed agreement required a stricter limit for wheat-stubble burning than for other sources of particulate pollution, including wood stoves in Spokane, and were illegal.

The wheat growers also said their 1999 voluntary agreement with Ecology to snuff out half of all stubble burning by 2006 is sufficient to protect public health. SOS says the voluntary agreement is inadequate to clear the air.

Some wheat growers say they need to burn to eradicate disease and clear off heavy stubble. The practice is also cheaper than mechanical methods of removing stubble.

Not all growers burn their fields. The practice is rare in Spokane County, where county air quality regulators frown on the practice for public health reasons. It is more common in Whitman County and the Columbia Basin.

After the growers left the talks, Ecology, SOS and EPA continued to negotiate, reaching a separate agreement on Aug 23. It called for increased air quality monitoring in rural counties and new state regulations to further limit burning.

Gregoire said she was concerned about the costs of the settlement and asked Ecology whether the Legislature had been informed.

“Over the last couple of years, it has become very evident legislators are wary of settlements that implicate them,” Gregoire said.

Gregoire got a pessimistic response from Stuart Clark, the agency’s top air quality regulator in Olympia.

Because the growers hadn’t signed the settlement, they could be expected to “put political pressure on the system through their friends in the legislature,” perhaps attacking Ecology’s air quality program or introducing a bill to cut Ecology’s authority over agricultural burning, Clark’s memo says.

“If an attempt were made to approach the legislature to get money for more enforcement staff for Ecology I don’t think the growers would support it,” Clark said.

Ecology was counting on the EPA for grant money to pay for stepped-up monitoring of agricultural smoke in Eastern Washington, Clark’s memo says.

This fall, the growers have been cooperating with Ecology to erect more air quality monitors in wheat country, said Gretchen Borck, issues director for the 3,000-member growers’ association.

“We think they’ll show we’ve been in compliance all along,” she said.

While the lawsuit continues, SOS has taken another tack. On Nov. 14, SOS petitioned Ecology to start rule-making on stubble burning. The petition was made on behalf of state residents who suffer from field smoke - including some of the children who are plaintiffs in the group’s federal lawsuit.

Ecology is reviewing the request.

Rule-making is a process to implement new state regulations. It requires public hearings and a cost-benefit analysis of the impact of a new rule on industry vs. benefits to the public.

Ecology used rule-making in 1997 to eliminate most Kentucky bluegrass field burning in Eastern Washington.

The bluegrass cost-benefit study conducted by Washington State University researchers concluded that annual medical savings to the public from less smoke in the air outweighed yearly costs to grass growers forced to use more expensive alternatives to burning.

SOS’ proposed rules would establish daily limits for field burning; ban it within five miles of a population center of at least 2,500 people; set up a comprehensive system of air monitors; and establish a uniform permit system.

SOS also wants the state to set up a medical registry for people with heart and breathing problems who require protection from field smoke. No burning would be allowed within 10 miles of their homes unless the wind is blowing away from them.

Also, the wheat growers’ association is appealing Judge Whaley’s recent denial of their request to be included as a party in the SOS lawsuit.

The growers recently wrote to Gregoire, asking if the state plans to present their side in the upcoming SOS trial, Schindler said.

“We got a form letter back, saying Ecology represents the public, not the wheat growers,” he said.

The growers’ national affiliate is part of an industry coalition that’s challenging EPA’s new pollution limits for small particles emitted by industry, cars, wood stoves and field burning. The U.S Supreme Court has heard oral arguments but hasn’t ruled on the case.

EPA says it has proposed stricter limits to protect public health. The small particles, 2.5 microns or less in diameter, are inhaled deeply into the lung, where they can impair breathing. The particles also carry toxic chemicals from the lung into the bloodstream.