How Boeing, allies torpedoed state’s rules on toxic fish

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Gov. Chris Gregoire signs a 737 used to test new technologies at Boeing's
Renton, Wash., facility during "Aerospace Day," June 20, 2012.  Later that day she met with
a Boeing executive who had complained about the state's proposed rules.
Credit: Gov. Chris Gregoire/Flickr

Entering her final year in office, former Washington Gov. Christine Gregoire found herself in a difficult spot: Indian tribes, powerful supporters of the governor, wanted stricter water pollution rules. Why? Because the current regulations mean tribal members, along with sport fishermen and some other Washington residents, regularly consume dangerous amounts of toxic chemicals in fish from local waterways.

But Gregoire’s supporters in the aerospace industry—spearheaded by The Boeing Co.—were dead set against tightening the rules. The Washington State Department of Ecology pushed mightily to strengthen the pollution limits before Gregoire left office, successfully outmaneuvering Republican legislators, only to see the plans dashed one day after a high-level meeting between the former governor and former Boeing Executive Vice President Jim Albaugh, according to newly released government records.

“It was my expectation that this was not going to be a top-tier political issue,” Ted Sturdevant, the former Ecology director who tried unsuccessfully to shepherd through the changes, told InvestigateWest.

He was wrong.

The documents obtained this month by InvestigateWest under the Washington Public Records Act further pull back the curtain on a controversy that continues to simmer. This week Indian tribes will go over the state’s head to bring their protests to the U.S. Environmental Protection Agency.

The heart of the tribes’ complaint is how the state sets water-pollution standards. A key part of that process is estimating how much fish people eat; the less fish consumed by residents, the more pollution can be dumped into waterways. But Washington’s estimate is decades out of date, as the EPA has repeatedly warned Ecology. More recent surveys show some residents eat a lot more than the official numbers.

“This is a public health issue and our current rate on fish consumption is just unacceptable,” said Shawn Yanity, chairman of the Stillaguamish Tribe and co-leader of a state-tribal environmental committee. “The science is very sound. It’s all there.”

I'm eating less fish now that I know about this issue.

Email from Alex Pietsch, aerospace aide to
Gov. Gregoire

June 8, 2012

Boeing asked to delay the process last year and allow more discussion because the company believed it would result in pollution limits that were “not economically viable, not technically feasible, and there’s questionable environmental benefit as well,” said Terry Mutter, Boeing’s director of environmental strategy.

“We were looking for a much more balanced approach in rulemaking. This was moving along extremely fast and it’s very complex,” Mutter said in an interview. “We want to make sure that not only the environment is protected, but also that the economy is viable for aerospace.”

Some 128,000 Washington jobs are tied to aerospace, according to the Aerospace Pipeline Advisory Committee, with Boeing the 85,000-worker behemoth at the top. Boeing’s suppliers employ thousands more. In the run-up to the decision to delay updating the fish consumption number, as InvestigateWest first reported two weeks ago, a Boeing executive said the change would “cost the company hundreds of millions of dollars and severely hamper its ability to increase production in Renton and make future expansion elsewhere in the state cost prohibitive,” according to an email from the governor’s office.

Oregon updated its fish consumption estimate in 2011 as recommended by EPA to account for the fact that Americans are eating more fish, and that some groups such as Native Americans eat significantly more fish than typical Americans. In contrast, the current Washington numbers are based on Americans who filled out three-day food diaries in 1973 and 1974. Oregon figures people eat 27 times more fish than Washington’s official estimate—the one used in setting water-pollution limits.

The tale of how Boeing and its allies beat back Ecology’s attempt to change a fish consumption rate that pretty much everyone involved acknowledges is too low provides a fascinating look at how the levers of power are pulled in Olympia. One key lesson: Don’t underestimate the impact of a coalition between titans of industry like Boeing, lobbyists for other businesses, and local governments.

The state knows that industry will push back but we should not worry about the political winds because it’s the right thing to do.

Ted Sturdevant, in notes from a meeting with tribal leaders
September 2011

From the beginning of this story, it was clear that Ecology’s Sturdevant knew the state was going to face opposition.

Months before the controversy erupted, huddling with insistent tribal leaders, Sturdevant’s position was captured in meeting notes: “The state knows that industry will push back but we should not worry about the political winds because it’s the right thing to do.”

That was in September 2011. In the ensuing months opposition began to build, and by the time of a December 2011 panel discussion it was apparent that industry was set for a fight, said Catherine O’Neill, a Seattle University expert in tribal law.

Gov. Gregoire didn’t get the memo. Once the 2012 legislative session started, she was surprised to hear complaints from Republican legislative leaders. She dashed off a two-sentence email on January 18 to Sturdevant under the heading “fish consumption”:

“Republicans are very concerned about this issue and brought it up at a leadership meeting. What is it?”

Lobbyists and lawmakers continued to bring up the issue and two weeks later Sturdevant sent what he characterized as a “calm-down” letter, saying that the rulemaking to adjust the fish consumption numbers would be slowed down. It didn’t work. Three days later, proclaiming himself “breathless” at the level of opposition, he confided to Gregoire advisor Keith Phillips: “In pursuit of finding that line between bold and stupid, I’m wondering if I misjudged.”

Shortly thereafter, another Gregoire aide met with House Republican leader Richard DeBolt and reported: “(h)e doesn’t want Ted to slow down. He wants him to stop.”

Soon a provision found its way into the Senate’s version of the state’s annual budget. The provision would have thrown up roadblocks to Ecology moving forward, likely making it impossible to adopt the rule before Gregoire left office 10 months later, as the department hoped to do.

It’s unclear who drafted the provision; tribal attorneys blamed the pulp and paper industry, their internal correspondence shows, while Sturdevant said in a February 27 memo to the governor that it originated with the Association of Washington Business.

In any case, the tribes launched their own lobbying campaign, focusing on the Democratic leaders in the House and Governor’s Office. Within a week they’d beaten back the draft provision and it was removed from the Senate’s budget proposal.

But Boeing was keeping a close eye on the issue and a Boeing representative complained about a week later in a note to a Gregoire aide that the fish consumption rule changes were “still on a fast track,” and due to be adopted by year’s end. The Association of Washington Business followed with a formal letter of complaint to Gregoire, and a day later, on April 20, Boeing representative Susan Champlain asked to meet with Sturdevant and Gregoire’s chief of staff.

By now, the legislative session was over and Sturdevant thought he still had time to get the changes adopted before Gregoire’s exit from office, he told InvestigateWest.

The issue was far from dead, though.  When a Renton city official asked Gregoire aerospace adviser Pietsch in early June if the issue was still on his radar, Pietsch replied, “Oh yeah.”

He added: “I’m eating less fish now that I know about this issue.”

(The Washington Department of Health continues to recommend that people eat fish twice a week, while choosing fish and shellfish with low contamination levels.  More information is available on the department’s website.)

Explore the fish consumption debate with records from
business, tribes, Ecology and the governor's office.

Gov. Gregoire appears at Aerospace Day, recommends a “pivot”

The nightly television news on June 20 of last year broadcast images of Gregoire on a visit to Renton, Wash., site of a Boeing factory and a big win for the governor. It’s where Boeing, in November 2011, agreed to build a new jetliner after long negotiations with the company’s biggest union. Gregoire stopped by a Renton Technical College class where she put on an eye mask and practiced with a rivet gun. And she toured the 737 production line, a photo op designed to “highlight [her] work to ensure the 737 MAX would be built in Washington state as well as other big wins,” according to records.

“We’re going to do everything we can to keep securing Washington State as the home of aerospace in the United States,” Gregoire told a reporter that day.

What didn’t make the news was that Gregoire also held a long-planned meeting with Jim Albaugh, the Boeing vice president. A flurry of emails the day before between among Gregoire aides and others shows Ecology still was poised to go forward with the rule changes by the end of the year.

The plan was for those changes to be incorporated into rules for cleaning up toxic waste sites. Meanwhile, Ecology would get together the tribes, Boeing and other businesses, EPA and anyone else concerned about the issue in a series of meetings to hash out how to move forward. A second rule would follow, to assure industry that it would not be too adversely affected. Only then would a third rule change happen, based on the new fish consumption rate, to govern toxics in industrial water-pollution discharges, such from stormwater runoff from Boeing’s plant operations and uphill properties in Pierce, King and Snohomish counties.

How healthy is it when you’re only allowed to consume so much before you start taking on a risk of cancer and other sicknesses?

Shawn Yanity, chairman of the Stillaguamish Tribe
April 2013

Coming out of the meeting with Albaugh, though, the governor thought differently, records indicate.

The most telling sentence in the post-meeting emails is from Gregoire environmental advisor Phillips to Alex Pietsch, her aerospace aide, using government jargon that means the process will be delayed: “The Gov wants the ‘process now/102 later’ option included in the mix of options. Ted is rallying his folks to develop the options, and he’s assuming the Gov will want to pivot to some amended direction on this.”

The “102” shorthand refers to CR 102, the point in rulemaking at which an agency formally proposes the rule and solicits public comments. The “pivot” is what happened. The change to the pollution rules that Ecology had been working on for at least nine months was stopped, delayed to at least 2014.

Sturdevant said that he wasn’t at the meeting between Gregoire and Boeing’s Albaugh, but that he was hearing from opponents other than Boeing at the time. They included the Association of Washington Business, the Northwest Pulp and Paper Association and the Association of Washington Cities, the latter because most towns operated sewage-treatment plants subject to water-pollution rules.

Even though Gregoire aides had described Sturdevant in internal emails as being surrounded by thin ice and said he had “been on the sharp point of the spear since last year” because of his advocacy for updating the fish consumption number, Sturdevant said the decision to slow down adoption was his.

He said he was afraid that if controversy continued, it could torpedo the updating of the fish consumption numbers as well as the update to toxic cleanup rules and the rule to give industry and local governments assurances that the new rules would not prove overly burdensome. Another blowup could well delay a decision on all three rules into the term of the next governor—and maybe that governor would just walk away from all three rules, he said.

Sturdevant told InvestigateWest that he tried repeatedly to assure Boeing and others that the state would come up with “implementation tools” that would ensure the new fish-eating rate didn’t cripple their businesses.

“Here’s why I can still look at myself in the mirror: I believed then and I believe now that had we proceeded and said we’re going to answer the question on the (fish consumption) number before we have answers to (industry and local government) questions, I didn’t think that was true to the public process.”

He added: “Politically, it would have been unsustainable.”

Businesses, including Boeing, argue they don’t have the technology that would be required to meet what they expect to be the new limits, and so they were not assured by regulations promised in the future to help them comply.

“There’s no evidence as to what those (rules) would be, and (no) certainty that those things are economically viable and are going to allow us to stay competitive in this state,” Boeing’s Mutter said in an interview.

Significantly, Ecology’s new director, Maia Bellon, will attend Thursday’s meeting with the tribes. She and the new governor, Jay Inslee, both issued non-committal statements in response to comment for this article.

Yanity, of the Stillaguamish Tribe, previewed the tribal leaders’ message:

“Seafood is a staple of a lot of people, as well as freshwater fish here in the Pacific Northwest. And it’s supposed to be a healthy alternative to other food sources. But how healthy is it when you’re only allowed to consume so much before you start taking on a risk of cancer and other sicknesses?”

For its part, Boeing has resisted state suggestions to meet with the tribes to discuss the issue. Boeing’s Mutter said the company stands ready to join a broader process, though.

“We’re ready to engage and work with them,” he said. Asked why Boeing hasn’t met with tribes on the issue, Mutter said, “We really think that’s the government’s role to convene the stakeholders.”

“That’s not our role,” he said.

“In the end the government is going to come up with the rule, so when we’re asking for this balanced approach, we’re assuming they are convening the stakeholders and getting something that works to meet the needs of everyone, which is obviously hard to do.”

Attempts to reach Gregoire, Albaugh and Loesch for comment were unsuccessful.

Inslee’s office released the records requested by InvestigateWest a day after Seattle lawyer Katherine George emailed the governor’s legal advisor. Fulfilling the request took the governor’s office 73 days.

 

Jason Alcorn contributed to this report.