Environmentalists launch legal action to force EPA on water pollution, toxic fish

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Anglers enjoy the upper section of the Yakima Canyon, near Ellensburg, Wash.
Credit: Scott Butner/Flickr

Saying Washington is failing to protect fishermen and their families from toxic chemicals in fish -— and that the U.S. Environmental Protection Agency had a legal duty to act within months to fix the problem, instead of the years that have elapsed — environmentalists on Tuesday initiated a formal legal challenge.

At issue is a formula for how much water pollution is allowed by the Washington Department of Ecology, based on how much fish people are likely to eat. The less fish people are assumed to eat, the more water pollution can be permitted under the federal Clean Water Act. EPA oversees Ecology's administration of the federal clean-water law.

EPA repeatedly has told the Washington Ecology Department that the current estimate of Washingtonians' fish consumption — averaging 6.5 grams per day, or about the amount of fish that could fit onto a Saltine — is far out of date. The number is based on "food diaries" filled out by consumers in a few states in the 1970s. Yet studies in Washington over the last two decades have shown that at least some people here, especially subsistence fishermen, members of Indian tribes and sport fishers, eat a lot more — up to 100 times as much among heavy fish consumers.

Oregon in recent years adjusted its rate under similar legal pressure from environmentalists. And the EPA stepped in to make Idaho do the same thing.* 

Ecology started to fix Washington's formula in late 2011 but hit heavy resistance among business interests and some state legislators. The state agency proceeded anyway but changed course shortly after a high-ranking executive of The Boeing Co. met with then-Gov. Christine Gregoire, as an InvestigateWest series based on government documents obtained under the Washington Public Records Act revealed.

"Fishing is very important to our region. We have a right to eat the fish and not get sick," said Chris Wilke, executive director of Puget Soundkeeper Allliance, one of four Waterkeeper groups in the Northwest represented by the Earthjustice nonprofit law firm in the action launched Tuesday. "This is unacceptable."

The Washington Department of Health has expressed concern about the current pollution formula, based in part on a national study that estimated that some 3.5 million women nationwide are overexposed to the neurotoxic agent mercury — women who are estimated to give birth to 400,000 children annually. Mercury is known to cause learning disabilities, affecting the brain and nervous systems of fetuses and children. 

Indian tribes also have raised grave concerns about the state's actions. They have asked the EPA to intercede based on their rights to fish under federal treaties. Wilke said environmentalists also met with EPA on the issue last week. 

EPA "seemed basically on our side. They believe it's taken too long, that the Department of Ecology needs to do this," Wilke said, "but they stopped short of being able to provide us with a specific time frame for what needed to happen when."

Gov. Jay Inslee recently got involved in the controversy, tapping a "stakeholder group" of varied interests — but not environmentalist activists — to advise him on the issue. 

In 2012, Boeing came in as the closer on a previously unsuccessful campaign, endorsed by business interests including the timber industry, against the changes Ecology proposed. After Boeing executive Jim Albaugh's meeting with Gregoire, Ecology kicked any tightening of Washington's water-quality standards to a process that isn't scheduled to start until 2014 and could take years after that to come to completion. 

Boeing felt strongly enough about the issue that in 2013 it tried to delay tightening of the standards even further. The aerospace company's allies in the Legislature attempted to require a years-long study before that process even could begin, and the dispute came close to shutting down state government as budget negotiations teetered back and forth in the waning days of this year's legislative session, as reported by The Herald in Everett and others. Inslee's representatives and House Democrats fought back the proposed study.

EPA spokesman Mark MacIntyre said the agency was "respectfully declining" to comment on the notice filed by the environmentalists on Tuesday, which gives the agency 60 days to negotiate a settlement before the groups file a lawsuit in federal court. (Such a suit appears to be unprecedented under the Clean Water Act.)

But earlier this year Angela Chung, water quality standards manager for EPA's Seattle-based Region 10, told InvestigateWest: 

We think, even with knowing the long history of commitments that have been made and the frustration with how slow the state has been... we think the process the state has identified is one we want to support.

* This story originally reported that EPA had taken over the process in Idaho. EPA rejected the  Idaho Department of Environmental Quality's fish-consumption rate and directed it to use a higher rate, but did not take over the rule-making process.

See the full letter from Waterkeepers Washington:

 
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Industrial waste pollution.

When Congress passed the CWA it paid 85 percent of the construction cost of new sewage treatment plants. Many cities used this to either expand or build new plants, with much larger capacity as needed. This over capacity then was offered to industries as an incentive to locate in their community. President Reagan (not entirely) ended this practice by only subsidizing new construction for existing needs. EPA originally also had a disinfection requirement and that meant that new as well as old plants installed chlorination equipment. Chlorine does kill bacteria, but also reacts with organic matter and forms chlorinated organics, now identified as carcinogens or endocrine disrupters. In 1978 EPA dropped this requirement, but left it up to individual states to drop or maintain this requirement. only a few states dropped this requirement, while it gave a boost to the UV industries, as an alternative to chlorination. Most of the industrial waste (now highly diluted) entering municipal plants is not treated and leave the plant either directly with its effluent or is adhered to the sludge. Testing for such waste is extremely difficult, due to the dilution and the presence of so much other chemical compounds. We now only witness the results, but the cause will be hard-to prove and even harder to admit.