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Magic Pollution, Part 1

How the Environmental Protection Agency Used a Paper Trick to Clean Up the Spokane River

If it were movie, and if it were about a less serious subject, the controversy over phosphorus pollution and the Spokane River might have a scene in it like the magic grit scene in the 1992 classic comedy “My Cousin Vinny.”

Joe Pesci, playing the role of a street-smart but almost hopelessly out of place Brooklyn lawyer (Vinny) in a rural Alabama court room, cross examines a good ol’ boy, a mister Tipton. Tipton has testified, for the prosecution, that from his kitchen window he has witnessed two young men (Vinny’s clients) enter and leave the Sack o’ Suds convenience store, where the clerk had been murdered.

With Tipton having testified that the time lapse from when he saw the young men enter the store to the time he saw them leave was the five minutes that it took him to cook his breakfast, Pesci’s Vinny puts to use something he’d learned from a cook at a diner in Wazzu City, Alabama. Vinny had learned about making grits.

When Tipton tells him he’d had eggs and grits for breakfast, Vinny asks: “Instant grits?”

“No self-respectin’ Southerner uses instant grits,” Tipton replies, and wins a nodding chuckle from the jury. “I take pride in my grits.”

“So Mr. Tipton,” Vinny asks, “how could it take you five minutes to cook your grits when it takes the entire grit-eating world twenty minutes?”

Tipton becomes flustered and replies that he must be a fast cook.

“Well,” Vinny replies, “I guess the laws of physics cease to exist on top of your stove. Were these magic grits? Did you buy them from the same guy who sold Jack the magic beans for his beanstalk?”

“I guess the laws of physics cease to exist on top of your stove,” Joe Pesci’s Cousin Vinny says in the movies. Here, in real life, the nation’s top environmental agency pretends that the laws of math and biology cease to exist where the Spokane River flows out of Idaho.

The analogy from the southern fried comedy to the Spokane River controversy is not perfect. For one thing, the math is simpler for the river than it is in the movie. This is because the Environmental Protection Agency (EPA) and the Washington Department of Ecology (WDOE) are standing by a policy decision that literally proposes that, when it comes to the Spokane River, 2 + 2 = 2. [Click here to read CFJ attorney Rick Eichstaedt's summary of this issue].

It’s also not about magic grits. Instead, it’s about seemingly magic pollution, specifically phosphorous and other oxygen depleting nutrients in treated sewage that, in the authoritative but nonetheless contrived view of the two agencies and their consultants, are now made to vanish as the Spokane River flows under Interstate 90 just west of Post Falls, Idaho

How did it come to this?

The decision to adopt the magical math approach is a recent one. But the pressures and temptations and politics that led to this ruse go back 36 years to the adoption of the Federal Clean Water Act (CWA).

Under this landmark law, states like Washington that have delegated CWA enforcement responsibilities are responsible for formally designating waterways that are out of compliance with a state’s surface water quality standards. Once designated as out of compliance, a water body becomes subject to a cleanup plan (regrettably termed a TMDL for Total Maximum Daily Load) the purpose of which is to sufficiently lower pollution levels in the river or lake, so that it complies with water quality standard(s).

Among the water quality standards that the Spokane River currently does not meet is that for dissolved oxygen (DO). Dissolved oxygen is critical for fish. Because fishing is one of “uses” of waterways to be protected under the Clean Water Act, the Spokane River was first listed as out of compliance for dissolved oxygen in 1996. But the knowledge among polluters and regulators that DO was a problem for the river and would have to be dealt with, by law, actually goes back thirty years. The first effort to systematically address the problem–a 1989 phosphorus management plan–failed.

The reasons for the low dissolved oxygen levels are a bit complicated. But the problem is almost entirely due to two factors:

1) Dams operated by Avista create pools of relatively stagnant water behind them in the warmer months;

2) Phosphorus from sewage treatment plants and industrial polluters is discharged into the river in large enough quantities to fuel algae growth and this, in turn, leads to lower oxygen levels because oxygen is consumed as dying algae decomposes.

It took most of a decade for EPA and the Washington Department of Ecology to agree on how they wanted to deal with the dissolved oxygen problem on the Spokane River. The stakes were high because of the vise-like pressure between the law and the science.

The science was unyielding. Absent a decision to remove Avista’s Long Lake dam, discharges of phosphorus into the Spokane River would have to come down to essentially background levels in order to meet state and tribal water quality standards.

This news was highly unwelcome by the public and private entities (sewage treatment plants in Idaho and Washington, and two private industries in Washington) who were either discharging polluted effluent into the river or, in the case of Spokane County, had plans on the books to do so. They formed a consortium and hired big law firms and a nationally powerful technical consulting firm–CH2M Hill–to push back on the regulators.

The science and the scientists didn’t budge easily. At least, not at first. In 2004, the Department of Ecology published its draft TMDL that proposed to limit phosphorus discharges into the Spokane River to ten micrograms per liter, a concentration so small that most river dischargers believed, and still believe, it would not be attainable with modern effluent treatment technology.

It was at this point that the pressure on the agency and the agency scientists who’d produced the draft cleanup plan began to shove the regulatory discussion, such as it was, in a new direction.

Ken Merrill, the Ecology scientist who’d drafted the 2004 plan, became a marked man, subject to intense and personal criticism from officials and consultants representing river dischargers. The same was true of Dave Ragsdale, the EPA scientist who’d participated in the scientific reviews of the developing plan and who oversaw the development of Merrill’s 2004 draft plan. It didn’t matter at all that there was high public turnout at hearing’s on the 2004 draft, and that the public comment was overwhelmingly favorable.

The threat from the consortium of Spokane River dischargers is that if the cleanup plan wasn’t changed, they would pursue legal action against the state to lower the water quality standard for the Long Lake portion of the Spokane River. State regulators and experts for environmental groups like the Sierra Club both were highly skeptical that a legal challenge to lower water quality standards would succeed on the merits. But, by this time, the issue had far less to do with the law, than it had to do with politics–specifically the political power wielded by the companies and municipal corporations who discharge phosphorus into the river.

In February 2005, in exchange for an agreement with the consortium of river dischargers not to initiate a legal challenge to the 2004 TMDL, the Washington Department of Ecology agreed to assemble a Spokane River TMDL collaboration.

The ostensible purpose of the collaboration was to arrive at a consensus plan for implementing a Spokane River cleanup plan that met the requirements of the law and mollified river dischargers. As the Spokesman-Review’s James Hagengruber documented in a September 9, 2007 story, however, behind the scenes the science was being bent to a breaking point. Both Ken Merill and EPA’s Dave Ragsdale had been silenced, and Merrill’s replacement at Ecology, hydrologist Drea Traeumer, would eventually resign (see The Whistleblower) rather than lend her name to a new version of the plan.

So Much for the Math

EPA’s role in the collapse of the science is important for several reasons, not the least of which is its lead role, nationally, in broadly setting the terms upon which the nation’s bulwark environmental laws, like the Clean Water Act, are enforced. This matters more in the context of the Bush Administration’s well-documented hostility to environmental regulation and science.

Specifically with regard to the Spokane River, EPA has two important roles to play. As it does nationally, EPA is supposed to take the lead in orchestrating federally required cleanup plans that transcend state boundaries. Secondly, because the state of Idaho has never requested delegated authority from the federal government to enforce the Clean Water Act, it falls to EPA to write the waste water permits for Idaho’s dischargers.

What this means is that when EPA quietly made a unilateral decision six months into the Spokane River Collaboration about how it was going to regulate Idaho’s waste water, it turned the whole process on its head. Whereas the spirit and letter of the Clean Water Act call for EPA to take the lead in collaboration among states, here the agency not only forfeited that role, but actually undermined the collaboration.

The ostensible purpose of the collaboration was to arrive at a consensus plan for implementing a Spokane River cleanup plan that met the requirements of the law and mollified river dischargers. As the Spokesman-Review’s James Hagengruber documented in a September 9, 2007 story, however, behind the scenes the science was being bent to a breaking point.

By the conventions of modern journalism, it would have been difficult for reporters to simply state that EPA had just erased provisions of the Clean Water Act and tortured the math in a way that would embarrass a second grader. There has to be balance, and there has to be a deadpan deference to the weight of a federal agency, with a long name and logo, with well-educated officials and scientists on its payroll.

Except that what EPA had done was every bit as far farcical as Mr. Tipton’s fast-cooking claim in the magic grit scene in My Cousin Vinny. We just don’t have it on film.

What we have, instead, is a poignant and amusing email.

The sender was Mark Hicks, a senior analyst in Ecology’s water quality program who oversees compliance with the state’s water quality standards.

“I am a little bewildered about how EPA is dealing with dissolved oxygen issues right now,” he wrote to a list of Ecology and EPA officials on September 1, 2005.

Hicks’s bewilderment was this. Up until that point, the clear premise of the Spokane River cleanup is that phosphorous discharges into the Spokane River above Long Lake could only result in a small and carefully calculated decline in dissolved oxygen levels. That decline–Hicks and other scientists refer to it as a “depression” against natural background levels–had been calculated at 0.2 milligrams per liter of water. Anything more than that and the cleanup plan would be a failure, because the water quality standard needed to protect fish would be violated.

Yet, stunningly, EPA was taking the position that it could allow a 0.2 decline for Idaho pollution into the Spokane River, and another 0.2 decline for Washington dischargers.

“For the Spokane River,” Hicks continued, “EPA appears poised to grant a 0.2 mg/l depression from naturally low dissolved oxygen levels to the point source dischargers in Idaho, and then grant anotheor 0.2 mg/l depression for the Washington dischargers. However, our standards only allow a cumulative 0.2 mg/l depression below naturally occurring low oxygen levels for all human sources combined (point and non-point), not 0.4 mg/l.”

Hicks then carefully listed eight poignant questions with bullet points that, to put it charitably, highlighted the absurdity of what EPA was proposing and how it was likely to play out.

“The current dialogue on dissolved oxygen does not appear either defensible or logical,” he concluded.

In short: 2+2 cannot equal 2. It has to equal 4.

But EPA had made its decision.

Having made a mockery of the math. EPA would next make a mockery of the law and, indeed, the whole purpose of the interstate Spokane River TMDL “collaboration” which the agency had given its support to and participated in.

Under the Clean Water Act, the federal government through the EPA is supposed to be fostering interstate cooperation and coordination to restore polluted rivers and other water bodies in watersheds that cross one or more state boundaries.

An obvious concern for river cleanup advocates immersed in the struggle to resolve the complex pollution problems of the Spokane River is how this decision will affect future decisions. As Bonne Beavers points out, coming right behind the dissolved oxygen cleanup plan will be cleanup plans that will have to confront toxic contaminants like PCBs.

A good example of this is EPA’s leadership in the Mid-Atlantic region in putting together a cleanup plan for dissolved oxygen in the Christina River basin in Pennsylvania, Delaware and Maryland. This is a role EPA took on eight years ago at the invitation of the three states involved. Not a problem. As EPA’s own write up of the Christina River TMDL lays out, “the Clean Water Act requires for interstate waters that the water from the upstream state meet the water quality standards of the downstream state at or before the state line.” Moreover, EPA notes that in putting the cleanup plan together it established pollution load allocations “in order to attain and maintain the applicable water quality standards of both upstream and downstream waters consistent with our authority” under the Clean Water Act.

This fits with what are known as the Clean Water Act’s “antidegredation” philosophy and how that philosophy is set forth in rules (40 CFR §122.44(d)(1)(i)) that prohibit EPA from granting permits for pollution sources in upstream states that “cause or contribute to the violation of water quality standards” in downstream states. This is important because, again, with the Idaho dischargers it is EPA itself that gets to write the permits.

Center for Justice attorney Bonne Beavers, who works with CFJ colleagues Rick Eichstaedt and Shallan Dawson on the Center’s river project, succinctly describes how EPA sidestepped the rule. Because the Idaho dischargers use up slightly less than all of the allowable 0.2 mg/l dissolved oxygen depletion for the river, they technically don’t “cause” the rule to be violated. But the federal rule also requires all contributions to be accounted for and properly regulated. And that didn’t happen.

“There’s clearly no way that the Idaho dischargers are not contributing to the downstream violation of Washington water quality standards,” Beavers says. “What EPA did, essentially, was white-out the word ‘contribution’ from the federal regulation. It’s very conspicuous. In the permit fact sheets for the three treatment plants EPA discloses that these discharges have the potential to cause or contribute to water quality violations in Washington. But when it gets down to setting the actual permit limits EPA repeatedly asserts the discharges will not cause violations of the standard in Washington. That allows Idaho to use up almost all the available phosphorus pollution loading. Washington can’t legally put any in now. We were aghast.”

Ecology Takes a Pass

One would think, then, that the Washington Department of Ecology–which had the opportunity to weigh in on the Idaho permits and protect Washington’s right–would have strenuously objected. And, at least in one sense, that’s what Mark Hicks’s September 1, 2005 email (which was distributed to at least three EPA officials) did.

But then, nothing happened. Even though EPA was proposing to allow Idaho dischargers to take up virtually all the very limited capacity of the Spokane River to absorb phosphorus, Ecology didn’t object. Nor did Washington dischargers.

The reason for this was part of what scientist Drea Traeumer tried to explain to the Washington legislature earlier this year when she tesitified in support of the state’s new whistleblower protection bill. By just arbitrarily wiping the slate clean at the Idaho line, EPA and Ecology would be giving Washington dischargers a fresh new allotment of 0.2 mg/l of oxygen-depleting pollution to work with. In other words, the payoff for giving Idaho its number, was to give Washington its number, undiminished by the Idaho pollution contribution. The heck with reality. The heck with the math. The heck with the river.

An obvious concern for Beavers and other river cleanup advocates immersed in the struggle to resolve the complex pollution problems of the Spokane River is how this decision will affect future decisions. As Beavers points out, coming right behind the dissolved oxygen cleanup plan will be cleanup plans that will have to confront toxic contaminants like PCBs.

“What’s now to stop EPA and Ecology from using the same ruse to essentially double the PCB pollution allowance in the Spokane River?” she asks. “Moreover, what’s to stop EPA from using the bogus math of the Spokane River dissolved oxygen TMDL as a precedent for other regional and national watersheds that transcend state boundaries?”

As egregious as the bogus math of the Spokane River dissolved oxygen TMDL is by itself, there is more to come. As both Trauemer and Beavers point out, the plan adopted under the Spokane River TMDL Collaboration doesn’t actually pack up all the new pollution allowance and give it to point source dischargers like the Spokane wastewater treatment plant and Inland Empire Paper Company. Instead, it gives all this new pollution loading allowance to so-called non-point pollution sources, mainly agricultural sources in the Hangman Creek watershed.

That would seem to make no sense, until you look at the history of the Spokane River TMDL and see that what’s being cooked up is a con game, inside a con game. This will be the subject of Magic Pollution, Part 2.

–Tim Connor