Judge encourages attorneys to explore a settlement in PCBs lawsuit

SEATTLE – A federal judge should order state and federal agencies to set strict limits for the amount of a cancer-causing chemical that can go into the Spokane River because state and federal agencies won’t, an attorney for the Sierra Club said Monday.

“This is the worst PCB contamination problem of any river in the state,” Richard Smith told U.S. District Court Judge Barbara Jacobs Rothstein.

Attorneys for state and federal environmental agencies said they don’t have enough information about how most of the polychlorinated biphenyls are getting into the river. They’ve decided, therefore, to use a different method for controlling that chemical from the five entities that have permits to discharge wastewater into the Spokane River.

“It’s a complex problem,” said David Kaplan, an attorney for the Environmental Protection Agency. “We can’t issue a (daily limit) when we don’t know where 57 percent of the pollutant comes from.”

Instead, the state is setting pollution standards in other waterways where it can get “the best bang for the buck,” Kaplan said.

He added that the state has set limits for more than 70 other chemicals in the Spokane River. Previous court orders to set pollution limits came in cases where states have set no limits at all, not for a single chemical.

The state also has set up a task force to study PCBs, in what Kaplan described as an ongoing process.

Judge Rothstein told Kaplan, “It sounds like it will be an ongoing process long after anyone in this courtroom will be around to see it.”

A task force sounds like a reasonable plan, the judge said. But it might not be a commitment.

In 1997, the state Department of Ecology and the EPA set a goal of having a daily limit for all the PCBs that would be allowed into the river by 2013. A preliminary draft for that standard was ready by 2006, but the Department of Ecology decided it needed more information on stormwater discharges and fish tissue samples. The agency was working on a new draft in 2009 but kept missing deadlines and eventually scrapped the effort to set a daily limit.

“They didn’t want the hassle of fighting with the dischargers,” Smith, the Sierra Club attorney, contended.

Stormwater is thought to be a major source of PCBs as it picks up petroleum products on the roads and washes over some paints. Once a common element of lubricants and degreasers, the federal government now strictly limits the amount of PCBs in products made in the United States. But even those small amounts are many times greater than the amount of chemical thought to increase the risk of cancer if it is in food or water a person consumes.

The chemical tends to stay in a river system’s plants and animals and collects in the fatty tissue of fish, which increases the cancer risk for people like Spokane tribal members who depend on the river for much of their food. The tribe has the right under the presidential order that set up their reservation to hunt and fish for food, said Ted Knight, an attorney for the tribe.

“Tribal rights and interests are inseparable from what happens upstream in the river in Washington and Idaho,” Knight said.

The entities that have discharge permits are looking for ways to remove PCBs from their treated wastewater, said Ronald Lavigne, an attorney for the state Ecology Department. But even if they removed all their PCBs, the river still would violate standards set for other waterways, he said.

Dischargers include the city and county of Spokane, the city of Liberty Lake, Kaiser Aluminum and Inland Empire Paper Co., which is owned by the parent company that publishes The Spokesman-Review.

As much as 30 percent of the PCBs are in the river when it crosses into Washington from Idaho, noted John Nelson, an attorney for Spokane County.

After more than 90 minutes of argument, Rothstein said she hadn’t reached a conclusion but urged the attorneys to “find possible ways of resolving this without me giving you a decision.” She asked them all to meet in her chambers, after which Smith said the attorneys were “encouraged to explore a settlement” rather than get an order from her that one side or the other likely was to appeal.

Smith said it was reasonable to explore a settlement at any point in a lawsuit, but previous settlement efforts failed.