State regulators delay final decision on pollutants in Spokane River, citing ongoing legal battles

Washington state regulators say they can’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.

The move comes as conservation groups and native tribes have launched new legal salvos in the now decades-long fight over the presence of polychlorinated biphenyls, or PCBs, in the Spokane River.

Still, the Ecology Department last week issued what it is calling “preliminary draft rules” for five entities with permission to release wastewater into the river in Spokane County, setting their goals for PCB reduction as percentages that ecological groups say defy the purpose of environmental law. The rules, specific to each group with a waste pipe emptying into the river, call for reductions of the chemicals of between 85% and 97% following treatment. But those limits cannot take effect until the legal wrangling is concluded, state regulators argue, and Ecology still wishes to move forward with issuing new permits for each of the entities by the beginning of next year that limit other types of pollutants in the river.

“That process will not be delayed as part of the pause for this legal challenge,” said Ryan Lancaster, spokesman for the department’s Eastern Region.

That likely means those permits will include the disputed federal standard for PCBs in the river, which stands at 170 parts per quadrillion. The standard approved by the Obama administration at the end of 2016 was 7 parts per quadrillion, a goal hailed by conservation groups as recognizing the danger of the chemical in harvested fish but critiqued by those who would have to meet it, who argue that amount cannot be measured with current technology and would require economically crippling investments to meet.

As an example, the test that Ecology will deploy to determine whether dischargers are in compliance with their permits can only measure PCBs to 50,000 parts per quadrillion. A more granular test exists that could show levels of PCBs in the water down to single digits in parts per quadrillion, but it’s not an accepted test for compliance with EPA rules.

“We’ve been making excellent progress and had measurable success in identifying and removing PCBs,” said Doug Krapas, environmental manager for Inland Empire Paper, one of the five entities seeking a reprieve from the strict standards on PCBs. Inland Empire Paper is a subsidiary of the Cowles Co., which also publishes The Spokesman-Review.

For governments, including the city of Spokane and Spokane County, making those investments would likely require substantial hikes in utility fees, officials say.

Recent developments in the ongoing dispute have stirred the Sierra Club, the environmental group that originally sued the EPA in 2011 in an attempt to get the agency to set limits for PCBs, to take legal action of its own. PCBs were banned from production by federal law in 1979 but remain in several industrial products and continue to leach into waterways. A Western Washington judge put the Sierra Club case on hold in 2015 so that state and federal regulators and a regional task force made up of private companies, government agencies and local tribal representatives could work to reduce toxins in the river.

The Sierra Club filed notice in February that it was dissatisfied with the progress of the group and intended to reopen its case.

“They are doing anything and everything they can to avoid putting the limits in,” said Rachael Osborn, the litigation chairwoman for the Washington chapter of the Sierra Club. A longtime activist in the environmental community in Spokane who moved to the West Side three years ago, Osborn pushed the original lawsuit nine years ago.

Meanwhile, Spokane Riverkeeper has joined a second lawsuit challenging the EPA decision to revert to the 170 parts per quadrillion standard. That litigation was filed last week by conservation groups in the Puget Sound area and the Makah Indian Tribe. It is similar to a lawsuit filed by Washington Attorney General Bob Ferguson alleging the EPA has overstepped its authority under the federal Clean Water Act by overriding the more stringent standard.

Jerry White Jr., Executive Director of Spokane Riverkeeper, said he agreed that the work of the task force hadn’t given him confidence that the PCB issue would be resolved.

“We’ve got some good science, I think,” White said. “But really substantive action, I’m not seeing it.”

While White and other groups have been critical of Ecology’s work to provide a variance for meeting the PCB standard in the past, he said the issuance of permits was a positive development, giving the public clear paths for involvement in making future rules.

“We need to write good permits so it’s not a crazy quilt of numbers that are easily manipulated,” White said.

The approach that Ecology is taking with its preliminary draft rules creates uncertainty for both those discharging into the river and those who would like to see the practice stopped altogether, like White’s organization.

None of the entities discharging into the river, including both Kaiser Aluminum and the Liberty Lake Sewer and Water District, create PCBs. They enter the water treated at each site through other sources. At Inland Empire Paper, the PCBs enter the wastewater stream when paper is recycled, being turned into new products. The variance process itself creates uncertainty for the mill, Krapas said, because it’s unclear whether the target is aiming to be possible to attain within the 20-year window provided for in the process.

“Variances aren’t forever, and you have a lot of obligations in that time frame that you have to meet,” Krapas said. “They need to be taken very seriously. There’s no certainty whatever the standard can be met. That puts us in a very uncomfortable situation.”

For conservation groups, concern comes from the variance process in Eastern Washington potentially setting a precedent allowing entities across the country to continue discharging waste into waterways. White said it’s also unclear whether his organization should submit feedback to Ecology on the latest rules, as those comments aren’t being formally recorded because of the uncertainty surrounding the federal guidelines. Ecology will be taking comment on the preliminary rules through July 25.

“It’s a deep concern that this could be a game-changer,” White said.