In a remarkable public meeting, agency apologizes and takes brunt of criticism for reversing course on how it will regulate Spokane River pollution.
One tip-off that Friday’s overflowing meeting in east Spokane would be different is that the Environmental Protection Agency (EPA) opened the session with a short prep session by an agency facilitator. Noting the “very stressful situation” that most of the dozens of officials, attorneys, and engineers present found themselves in because of recent Spokane River
developments, he explained that part of his role was “to provide a safe and respectful environment for the exchange of information.”
It took nearly 15 minutes for everybody in the standing room only hall to identify themselves but once that was out of the way, Christine Psyk (pronounced “Pike”), wearing a bright red coat with her hand made name tag on it, stood at a podium in the front of the room and, on behalf of the U.S. Government, did a most unusual thing. Psyk, the EPA associate regional director for EPA’s Office of Water and Watersheds, acknowledged her agency made a mistake, and she apologized.
“So what happened?” Psyk said. “Why the change? The newspaper headlines said that ‘EPA made a mistake.’ What was the mistake that they were referring to?”
Psyk then patiently walked back through the labyrinth of stakeholder and river discharger meetings over the past four years. In her account, the decision that set the stage for the mistake was the one in which EPA separated its work on permitting Idaho discharges to the Spokane River, from the process convened by the Washington Department of Ecology to work on solving Washington’s water quality problems in general and the dissolved oxygen problem in Lake Spokane (Long Lake) in particular.
The reasoning, she said, went like this. Because the river could handle phosphorous and other nutrients causing decreases in dissolved oxygen (DO) up to a 0.2 mg/L diminution in DO, EPA thought it could permit the three Idaho river dischargers because modeling “showed the effect was approximately 0.15 mg/L.”
The blunder, such as it was, that Psyk was owning up to on behalf of EPA was to interpret that number as being inconsequential.
“Concurrently,” she explained, “this enabled Washington in their draft TMDL [the state's mandatory plan to come into compliance with water quality standards for DO] to allow pollution sources in the State of Washington to decrease dissolved oxygen concentrations by the amount allowed under Washington’s water quality standard, which is 0.2 mg/L.”
In other words, if the Idaho pollution could be counted at zero because it wouldn’t, by itself, cause water quality violations sixty miles downstream in Lake Spokane, then Washington dischargers could use the full 0.2 mg/L allotment on their side of the state line to put the maximum allowable load of nutrient pollution into the river.
If the logic in that is dizzying by the standards of common sense, it should be, because it doesn’t make any sense. And that is what Psyk squarely acknowledged Friday, that the critics led by the Sierra Club and the Center for Justice had it right.
“Many people may think that comments they make to the government are not heard,” Psyk said. “This is not true. Public comments can really make a difference in what happens and does not happen in our environment. After a thorough review of public comment and extensive internal deliberation we concluded that, from a legal perspective, we had erred in our interpretation of the Washington water quality standards by not considering the Idaho and Washington sources cumulatively in determining the effluent limits for the Idaho dischargers.”
Yet, the heartburn in the room wasn’t limited to the Idaho dischargers who, obviously, were less than pleased by EPA’s reversal. Actually counting Idaho’s pollution as it enters Washington will not only affect how the Idaho dischargers get permitted, but it also substantially restricts the “load” of phosphorous [the primary nutrient contributing to the dissolved oxygen problem] that Washington dischargers can put into the river. In short, after four years it sends everybody back to the drawing boards to find new ways to either reduce pollution to the river, or to try to change the rules of the game yet again.
Certainly the public entity with the most to lose is Spokane County. The County is planning to build a new sewage treatment plant to handle development growth and the removal of septic tanks over the Spokane valley aquifer. The plan is for that plant to have a new discharge pipe into the Spokane River but under the Clean Water Act it will be extremely difficult, if not impossible, for the County to get a permit for a new discharge so long as the river is out of compliance for dissolved oxygen.
For that reason, one of the most forceful comments Psyk and the other regulators fielded Friday came from Spokane County Utilities Director Bruce Rawls.
“The County is in the unique position of actually wanting to get this thing done and move forward,” Rawls said during the meeting. “We’re about to sign a contract for a very expensive waste water treatment plant that can’t get permitted without this TMDL. So, I understand that you don’t know what you’re going to do exactly and you need to have some meetings but it would be helpful if today you could tell us how soon are you going to have those meetings and be prepared to come back to us with a much more tangible road map forward that has actually a schedule attached to it.”
Rawls then went over the steps in the process since 2004 and how much longer each took than originally anticipated.
“I’m starting to feel like this is another two years of delay,” he said. “Based on the performance that has happened in the past.”
The man who stepped up to the podium to field Rawls’s forceful question was Dave Peeler, the Washington Department of Ecology official who, for most of the past four years, has guided the state agency’s decision-making on the Spokane River. Peeler is now a special assistant to Ecology Director Jay Manning. He introduced himself Friday with the news that he would be retiring from state government next week.
Peeler’s answer to Rawls was a year: six months to revise models needed to allocate pollution loads, and another six months to have them reflected in a revised TMDL.
Peeler and Ecology’s participation in Friday’s meeting was in stark contrast to Psyk’s and EPA’s. Whereas EPA laid it on the line and squarely took responsibility for its mistakes, Ecology did not. And that seemed both deliberate and in keeping with an internal Ecology memo circulated earlier this month reporting that Ecology had asked EPA “to take responsibility for the error in talking to reporters.”
But this approach is clearly an attempt to obscure Ecology’s complicity in the half-baked scheme that EPA finally owned up to and squarely abandoned. As we reported earlier this year, it was an Ecology water quality specialist in Olympia who first tried to blow the whistle on the gambit in 2005. The agency, inexplicably, ignored his objection and then made life utterly miserable for the two line scientists, Ken Merrill and Drea Traeumer, who objected to the scheme that EPA apologized for today. Traeumer resigned from the agency rather than put her signature on the flawed TMDL that was published by agency last year.
“Ecology is complicit in the problem that is being exposed today,” says Sierra Club’s Spokane River project coordinator Rachael Paschal Osborn. “They had some choices when EPA said it was going to move forward with its 2 plus 2 equals zero analysis. They could have said ‘no, we’re not going to let you do that’ and elevated, or escalated, or litigated. They had some options there. We know that the state elected not to do that because of the way the draft TMDL came out. And it’s not just that we can surmise it or deduce it. We had conversations with them about it! Instead of saying, ‘you’re right and really what we have to do is go back and push back’ we, Sierra Club and CFJ were left to do the pushing back while the state said, ‘well, we’ll just go along with it.’”
But it wasn’t just Paschal Osborn who drove that point home Friday. The first person to question Psyk and Peeler today was Kris Holm, a lawyer who works with the City of Coeur d’Alene on permitting issues on the city’s waste water treatment plant.
“Frankly,” Holm told Psyk, “as someone who’s been involved in this process for a long time, this is not a new issue. This issue was brought up in 2004, 2005, 2006. This was not just something that was presented to the agencies in [recent] comments on the draft Idaho permits.”
The other elephant in the room was Avista and its Spokane River dams. Ecology has been increasingly criticized for not having done a better job in both the TMDL process and the dam relicensing process to ensure that Avista makes a substantial and enforceable contribution toward helping to solve the Lake Spokane dissolved oxygen problem. Lake Spokane, after all, is the reservoir created by Long Lake dam, the utility’s biggest power generator on the river. That issue was first raised, Friday, by CFJ attorney Rick Eichstaedt, sitting just to the right of Avista’s Bruce Howard at the U-shaped table near the podium.
It was also raised, pointedly, by Wayne Andresen, the long-serving President and General Manager of Inland Empire Paper, which has already invested $5 million in trying to further reduce its phosphorous discharges to the river.
Andresen’s point was that the EPA reversal was, once again, shifting more attention and pressure onto Spokane River dischargers who are clearly pushing the limits of available effluent control technology to try to meet the dissolved oxygen standards for the river. Andresen wanted to know why Ecology hadn’t done more with its state legal authority to compel a commitment from Avista that acknowledges the utility’s contribution to the dissolved oxygen problem. Specifically, Andresen cited a section from the state’s administrative code that squarely requires dam operators to “develop a water quality attainment plan” that accounts the contribution dams make to water quality violations addressed by TMDLs.
In reply to Andresen, Peeler merely referred to his earlier answer to Eichstaedt.
“If we’re really going to have everyone in the tent,” Eichstaedt had noted in his question, “it seems we need to include some sort of allocation to Avista. Do you anticipate that will occur?”
Peeler responded by conceding that Ecology had chosen to address Avista’s contribution to the problem “with a separate kind of path but with linkages between them.” Oddly, Peeler cited two instances he knew of where waste load allocations for dams were included in TMDLs but because neither of those cases involved legal challenges by the dam operators, “the legal basis for those is not at all clear.”
Without a way to account for Avista’s contribution in the TMDL process, it clearly puts more incentive on Spokane River dischargers to reconsider petitioning the state to change how it would apply its water quality standards to the Spokane River through a process called a Use Attainability Analysis or UAA. But that just takes the debate back to where it was four years ago, when Ecology and river dischargers agreed to put the dischargers’ UAA petition on hold while Ecology, dischargers, and other stakeholders tried to work out an acceptable TMDL implementation plan.
I asked Paschal Osborn how she reacted to the discussion, Friday, that both EPA and Ecology might now be open to reconsidering a UAA petition from river dischargers.
“I’m extremely disappointed that every single one of the representatives sitting at the table there said, well, ‘changing the water quality standards is an option,’” she said. “Now, Dave Peeler did come back and say, I don’t want to mislead anybody, it’s very difficult to do but that they would offer it up and say maybe this is where we need to go before we’ve ever gotten to trying to clean up the river, discussing changing the standards before we’ve even attempted cleanup is like throwing in the towel, it’s very disappointing.”
If there is a silver lining that has appeared since 2004, Paschal Osborn says, it is in the area of new treatment technologies for phosphorous.
“While this [process] has dragged on interminably for ten years,” she said, “the state of the technology has improved and there is opportunity now to re-think what kind of technology we can use. We might be able to do it cheaper.”
–Tim Connor
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