Ecology Department may use more stringent water testing for contaminants on Spokane River, Washington Supreme Court rules

A unanimous Washington state Supreme Court earlier this month approved a method of testing for potential cancer-causing chemicals in water spilling into public waterways over the objections of business, farming and paper mill interests.

The decision endorsing a more stringent and costly testing method for polychlorinated biphenyls, or PCBs, came three weeks after federal regulators announced the adoption of a stricter water quality standard that was rolled back during the Trump administration. Both rulings will factor into future permits allowing discharge of wastewater into the Spokane River and elsewhere in the state, a public battle that dates back decades and pits conservation and tribal interests against local municipalities and businesses over what is a safe amount of fish to eat harvested from the river.

The 13-page ruling by the Washington Supreme Court, issued Thursday, allows the state’s Department of Ecology at its discretion to use a method of testing for PCBs that is more expensive and difficult to perform than one used by the Environmental Protection Agency to ensure compliance with federal law. The Northwest Pulp & Paper Association, the Association of Washington Business and the Washington Farm Bureau had argued that, if the testing method was to be included in state-issued permits for discharging wastewater, it should be subject to a public rule-making process before adoption.

Writing for the unanimous nine-member Supreme Court, Justice Susan Owens wrote that Ecology could use the method in writing a permit, but didn’t have to. That means it’s not a rule for purposes of state law and public comment.

“Here, different monitoring requirements apply depending on the circumstances of the facility, so no standard for testing is applied uniformly to all dischargers,” Owens wrote.

The Ecology Department applauded the decision, saying in a statement that it allows state regulators to institute testing for the chemicals that make sense for each permit holder.

“This means our staff will continue to have the tools they need to work with individual permittees and protect human health and aquatic life that rely on Washington’s waters,” Stephanie May, communications manager for the Ecology Department’s Eastern Regional Office, wrote in an email.

Chris McCabe, executive director of the Northwest Pulp & Paper Association, said the organization was “disappointed.”

“Our thinking is we’re starting to see a lot of permits show up with the (more stringent testing standard) in them,” McCabe said.

That includes five permits that were finalized last year for discharge into the Spokane River. Those are from the city of Spokane, Spokane County, the Liberty Lake Water & Sewer District, Kaiser Aluminum and Inland Empire Paper. Inland Empire Paper is a subsidiary of the Cowles Co., which publishes The Spokesman-Review.

All of those permits have had provisions in them appealed to the state’s Pollution Control Hearings Board, though not all are because of testing standards for PCBs.

The Ecology Department uses the more stringent method, known as 1668, for monitoring what types of PCBs are being released into the waterway, May said. Another, less stringent method is used for determining whether the amount released is in compliance with pollution limits, she said.

Those limits will now be based on a standard adopted by the EPA on Nov. 15, after several years of public comment and action by three presidential administrations see-sawing permissible amounts of the chemical between 170 parts per quadrillion and the more stringent 7 parts per quadrillion. Northwest Pulp & Paper and other interests have continued to argue the 7 parts per quadrillion standard is not able to be detected with available testing methods, and subjects governments and private organizations to exorbitant regulatory costs.

“It puts your whole permit renewal in question,” said McCabe, noting that at Inland Empire Paper, the introduction of PCBs into the waterway comes from recycling existing paper products that are permitted to be manufactured with PCBs in inks and dyes at levels much greater than those allowed for in wastewater. “If we don’t get those permits, we can’t operate.”

Jerry White Jr., Spokane riverkeeper, called the decision “nothing but good news” for the future health of the Spokane River.

“We ultimately want the best scientific methods used to measure this tight water quality standard that just got passed to protect communities,” he said.