Water Quality, Who Should Decide?

by: Posted on: July 08, 2013

Editor’s Note: A written conversation between Read the Dirt editor Simon Davis-Cohen and John Osborn MD, Board President, Center for Environmental Law & Policy, Director, Sierra Club’s Columbia River Future Project. They speak about Tribal power to set cleaner water quality standards than U.S. and State law, and the fight over the health of the Spokane River. Osborn guards that the Spokane River Regional Toxics Task Force, which the Washington Department of Ecology has promoted as an alternative to the Clean Water Act—could be replicated elsewhere. Industrial polluters control the Task Force. Osborn argues that ‘local control’ in the Spokane River Basin “means that local and powerful industrial and municipal polluters of the Spokane River are in control.”


Simon Davis-Cohen: To what extent should people who eat fish be in charge of the quality of the waters from which they fish?

John Osborn: For cleaning up polluted water the question, “who should decide?” is partly a question of ethics. People who eat sufficient quantities of contaminated fish are at increased risk for cancers, neurobehavioral problems and other maladies and therefore should have a controlling (or at least significant) voice in setting cleanup levels. In Washington State, they do not.

Washington State’s position on cleaning up polluted waters is controlled by companies such as Boeing Corp. and Inland Empire Paper Co. who are putting toxics and other contaminants in state waters. (See Robert McClure, Business Interests Trump Health Concerns in Fish Consumption Fight, Investigate West. March 30, 2013 www.invw.org)

The Public Trust’s responsibility in cleaning up water pollution (and protecting waters generally) is evident in the federal Clean Water Act. This law established a national goal that all waters of the U.S. should be fishable and swimmable. The Clean Water Act provides the basic structure for setting standards for clean water, and for regulating the discharge of pollutants from point sources to waters of the United States to meet those standards. www.epa.gov/region6/6en/w/cwa.htm

For waters located on Indian reservations, Native American Tribes have sovereign authority to set water quality standards. These standards can function to control upstream pollution. Just as Idaho must uphold Washington’s water quality standards when water flows across the state boundary, so too is Washington compelled to uphold the Spokane Tribe’s standards when the Spokane River flows onto the Spokane Indian Reservation. As such, Tribes are positioned to act for the greater public interest when states such as Washington – influenced by polluting industries – fail to uphold their Public Trust duties to protect water.

SDC: Federal law authorizes native tribes to set cleaner standards for water quality on their reservations. In 2003, the Spokane Tribe of Indians set such cleaner standards. How did they pass these standards and what obstacles are preventing the standards from being realized?

JO: In 2003 the Spokane Tribe of Indians approved the first water quality standards within Washington State that are based on fish consumption and human health concerns.

The Tribe’s process is similar to other states: the public had an opportunity to review and comment on draft water quality proposals, Tribal Council (the Tribe’s legislative body) approved the final standards, and then the U.S. Environmental Protection Agency (USEPA) reviewed and approved them.

Tribal members face multiple pathways for toxic exposures. The Spokane Reservation is located at the confluence of the Spokane and Columbia Rivers. Uranium mining on the Spokane Reservation left large open pits and extensive radioactive pollution. Food sources (including deer and plants) are potential routes of radioactive exposure for Tribal members.

On the Spokane River side, upstream of the Reservation about 500,000 people flush their toilets to sewage treatment plants that discharge into the Spokane River. Raw sewage overflows and industrial facilities (e.g., Kaiser and Inland Empire Paper) also discharge to the river. Toxic pollutants such as Polychlorinated Biphenyls (PCBs) accumulate in sediments, fish, birds and mammals – and humans who eat fish, including Spokane Tribal members and immigrant populations.

The Spokane River is Washington’s most contaminated river for PCBs. Exposure to PCBs through ingestion of Spokane River fish represents a public health hazard. (Washington State Department of Health, ATSDR: www.doh.wa.gov/Portals/1/Documents/Pubs/334-147.pdf)

In 2008, the Washington State Department of Health issued fish consumption advisories, recommending limited or no consumption of fish from Lake Roosevelt and the Spokane River. (See: Health Advisory for Spokane River Fish Consumption: www.doh.wa.gov/Portals/1/Documents/Pubs/334-164.pdf)

Spokane tribal members are also exposed to pollutants on the Columbia River side of the Reservation. The largest lead smelter in North America is located just north of the U.S.-Canada border on the Columbia River. Owned by Teck Metals LTD, the smelter has discharged pollutants to the Columbia River, contaminating the 150-mile-long reservoir behind Grand Coulee Dam called Lake Roosevelt. The Colville Tribes is taking legal action to restore these polluted waters and hold Teck accountable.

These multiple pathways of exposure – uranium mining wastes, PCBs, heavy metals – underscore the need of the Spokane Tribe to protect tribal members: including adopting and enforcing water quality standards based on fish consumption.

SDC: What has been the response from Washington State to meet the Tribe’s water quality standards?

JO: In 2011, Ecology was on track to issue a clean-up plan that would meet the Spokane Tribe’s water quality standard for PCBs. The agency did an about-face, however, and without completing the clean-up plan, re-issued four discharge permits that contain no discharge limits for PCBs. None. Ecology also issued a new permit to Spokane County to discharge sewage effluent to the Spokane River, directly violating the Clean Water Act.

In 2011, Sierra Club’s Upper Columbia River Group and the Center for Environmental Law & Policy filed companion lawsuits in state and federal court to compel Washington State and USEPA to uphold water quality laws. The Spokane Tribe supports the litigation, and has formally intervened in support of the federal lawsuit.

The Washington Dept of Ecology has promoted a Spokane River Regional Toxics Task Force as an alternative to an effective Total Maximum Daily Load (TMDL) – and as a potential model to use elsewhere in the state to dodge the Clean Water Act. The polluters are firmly in control of the Task Force, including determining how much PCB pollution they can put into the Spokane River.

In March 2012, USEPA announced that participation in the Task Force cannot be required. In May 2012 the Spokane Tribe abandoned the Task Force, citing that it lacked legal authority and funding while being subject to political pressures in favor of pollution.

For decades and still today, “local control” in the Spokane River Basin means that local and powerful industrial and municipal polluters of the Spokane River are in control. The State has been effective neither as an advocate for the public interest in a clean Spokane River, nor in upholding the Clean Water Act.

SDC: The State of Washington seems to be arguing that because the pollution of the Spokane River is a tragedy of the commons, no one polluter can be held responsible. Similar arguments have been made by the State with regard to the cleanup, or lack thereof, of contaminated bays like Willapa. What are the flaws of such an argument?

JO: The State is actually repudiating the specific tool that should be used to equitably allocate clean-up among multiple pollution sources. When a river like the Spokane fails to meet standards, the Clean Water Act requires that a TMDL be developed for the pollutants of concern such as PCBs. A TMDL is the appropriate mechanism to determine the amount of pollutant that can be discharged to a water body and still meet state and tribal standards (loading capacity) and allocate that load among the various sources.

The Clean Water Act provides the necessary framework for cleaning up polluted waters – including the Spokane River Basin where multiple municipal and industrial entities have pipes to the river. Washington is in clear violation of the law by failing to use that framework and allowing polluters to add PCBs to an existing contaminated river.


Photo: John Osborn: Spokane River and Sewage Treatment Plant. This facility discharges PCBs to the river; downstream is the Spokane Indian Reservation. In Washington State, the Spokane River is the worst PCB-polluted. PCBs enter the river from multiple sources, including municipal and industrial dischargers in Washington State and Idaho. Seemingly tiny amounts of PCB pollution can magnify in the food chain, bioaccumulating in tissues, and putting wildlife and humans at risk. Sierra Club and the Center for Environmental Law & Policy (CELP), with support from the Spokane Tribe of Indians, have filed companion lawsuits challenging the failure by Washington’s Department of Ecology and the U.S. Environmental Protection Agency to clean up the river’s PCB pollution.


P.S. from the Editor:

Visit http://www.washington.sierraclub.org/uppercol/pcb/overview.html for more information.

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