Spokane River advocates push court to compel cleanup plan for PCBs: ‘It’s time for action’

Thomas Soeldner has had enough.

Ten years ago, the Upper Columbia River chapter of the Sierra Club and the Center for Environmental Law and Policy asked a federal court to compel a cleanup plan for carcinogenic pollution in the Spokane River.

They never got a definitive answer.

So on Tuesday morning, Soeldner announced they are asking again.

“It’s really time for action,” Soeldner said.

The plaintiffs in that unresolved 2011 lawsuit are seeking to force regulators to comply with the Clean Water Act and set total maximum daily loads, or TMDLs, that would quantify the amount of PCBs polluters can discharge into the Spokane River each day. They have requested a U.S. 9th Circuit Court of Appeals judge to order regulators to set those limits.

The entities that would be subject to such limits include Kaiser Aluminum, Liberty Lake Sewer and Water District, and Inland Empire Paper Co., a Millwood newsprint facility owned by Cowles Co., The Spokesman-Review’s parent company.

The question of how to deal with PCB pollution has been the subject of a protracted back-and-forth between environmental groups, the state Department of Ecology, the federal Environmental Protection Agency and the entities responsible for continuing to emit the toxins into the river.

Even apparently fundamental questions like whether state regulators can set the limits have remained unanswered since Washington officials ruled in 2010 the state would not require Spokane River dischargers to meet standards for PCBs in their wastewater.

Instead, the state set up a task force comprised of manufacturers, environmental groups, health officials and local governments that was tasked with a plan to reduce the cancer-causing toxin’s presence.

While Department of Ecology monitoring produced some evidence of declines in PCB levels in 2014 and 2015, debate persisted over whether discharge limits were strict enough to protect fish and the environment.

A judge ruled in 2015 that the federal government erred in allowing the state to create a task force as a substitute for setting discharge limits and ordered the EPA to do so.

While Ecology allowed the task force’s work to continue, the EPA filed a plan with the court that would require PCB limits in discharge permits by July 2030, if the river isn’t meeting water quality standards by then.

That timeline wasn’t acceptable, however, to the Upper Columbia River chapter of the Sierra Club and the Center for Environmental Law and Policy, which continued to press for faster timelines for discharge limits.

In 2016, during President Barack Obama’s administration, the EPA did so, establishing a standard of 7 parts per quadrillion.

Three years later, however, the agency under President Donald Trump decided to revert previous standards set by state officials, despite claims from conservation groups and Native tribes arguing those rules were too lenient to protect the health of those who eat large quantities of fish exposed to the chemical.

In response, Washington Attorney General Bob Ferguson sued the EPA, alleging that the agency violated provisions in federal law that require regulators to make the case that revisions are needed to protect human health.

Then, last year, state regulators said they couldn’t move forward with plans to set final limits for a carcinogenic pollutant because of a federal dispute with the Trump administration over what is healthy. Instead, the Ecology Department issued goals for each discharger to reduce their PCB emissions by certain percentages. But those goals weren’t binding.

Last month, EPA responded to Ferguson’s suit, telling a judge that the agency “intends to reconsider” the reversal of the limits initiated during the Trump administration and seeking more time to “propose a rule establishing protective federal human health criteria,” court documents say. EPA intended to have the rule signed within nine months of the court granting its request for more time, according to court filings.

All of those decisions and reversals have created a lack of regulatory certainty that is “bordering on lawlessness,” Soeldner said Tuesday, during a news conference in Riverfront Park.

Kathy Dixon, of the Spokane River Team, which includes members of both the Upper Columbia River chapter of the Sierra Club and the Center for Environmental Law and Policy, said the state ecology department’s task force has “let the polluters decide” how much they pollute.

She said defined discharge limits are necessary to provide clarity and consequences that will finally create a safe river.

Jerry White Jr., executive director of Spokane Riverkeeper, said total maximum daily load rules are “absolutely the best path forward” for reducing PCB discharges.

White said Riverkeeper supports “sunsetting the task force” and putting regulations “back in the hands” of state and federal regulators.

Soeldner said the rules are clear and should be imposed.

“With the Clean Water Act, (the setting of discharge limits) is not discretionary,” Soeldner said. “They have to set a TMDL and not an alternative to a TMDL. And that’s why we went back to court.”

But Colleen Keltz, a spokesperson for the state Department of Ecology, said it’s not that simple.

“There’s a lot of different paths to clean water in the Clean Water Act,” Keltz said.

She defended the task force as a successful alternative to the setting of total maximum daily loads, arguing that “a great deal of progress has been made on identifying and reducing PCBs in the Spokane River.”

Keltz said her department has “the data to show” that measurable progress, and that dischargers have made “a lot of upgrades and investments” to limit their release of the toxins.

“PCBs are incredibly difficult to tackle,” Keltz said. “This isn’t exactly an easy project with a quick solution.”