Chris Wilke, Puget Soundkeeper Alliance
(206) 297-7002; firstname.lastname@example.org
On July 28 the Pollution Control Hearings Board of Washington ruled in Puget Soundkeeper’s favor on the controversial issue of mixing zones for the discharge of toxic PCBs (polychlorinated biphenyls) on the Duwamish River, declaring that the state should not allow “mixing zones” for persistent, bioaccumulative, and toxic substances (PBTs). While the ruling was specific to the Seattle Iron and Metals metal recycling plant located on the Lower Duwamish Waterway, it is expected to impact pollution permits for many additional facilities. Ecology is now required to rewrite the permit for Seattle Iron and Metals and eliminate the mixing zone allowance for PCBs.
This is a huge victory for water quality on the Duwamish, as well as the health of communities and wildlife that rely on the river.
A “mixing zone” provides pollution dischargers with higher permit limits, which are easier to comply with. Mixing zones are based on the premise that pollutants discharged from a point source will be diluted beyond a certain boundary such that levels fall within an acceptable range. A core characteristic of PBTs including PCBs is that they accumulate over time in sediment and animal tissue, and are not diluted. For this reason, there is real danger that discharge of PCBs from the Seattle Iron and Metals facility would result in recontamination of the Duwamish, a waterway that already is heavily impacted by pollution. The Department of Health has already issued fish consumption advisories for the Duwamish prohibiting consumption of all resident fish and shellfish. This was based on testing that revealed extremely high levels of PCBs in fish tissue, posing a public health hazard. PCBs were banned in the 1970s but are still present in some products and industrial waste streams. They are a potent carcinogen and a major focus of ongoing cleanup efforts on the river.
“Granting mixing zones in permits is essentially to accept the corrupt idea that ‘dilution is the solution to pollution.’ Its particularly egregious because the Clean Water Act nowhere authorizes the use of mixing zones to allow pollution,” says lead Soundkeeper attorney Richard Smith, Smith & Lowney PLLC. “Now, finally, the Pollution Control Hearings Board has said no to PCB mixing zones in the Duwamish and more generally to mixing zones for PBTs. It’s kind of incredible that Ecology could not reach and implement this conclusion on its own.”
“This case is a victory for community oversight,” said Chris Wilke, Puget Soundkeeper and Executive Director. “The goal of the Clean Water Act is to ensure swimmable, fishable and (where designated) drinkable waters. Discharging more PCBs into an area where fish consumption advisories exist is ludicrous and not in keeping with this goal. Fortunately the framers of the Act understood that local residents would be the ones to best stand up for goals of swimmable, drinkable and fishable waters.”
While this ruling is a solid step towards a cleaner Duwamish River, and holds promise for other waterways as well, a shadow is cast on the victory by the fact that facilities are not currently required to use a laboratory analytical method that is adequate to detect PCBs to the levels that will be required to protect waterways. Although improved methods exist and are available for use, our state and federal agencies have not yet required them. As a result, discharge monitoring data from facilities discharging PCBs doesn’t even tell us if they are meeting the permit limits. Soundkeeper has appealed the Pollution Control Hearings Board decision on this issue and other remaining issues to the Superior Court of Washington State.
Puget Soundkeeper has an existing Clean Water Act enforcement action against Seattle Iron and Metals for violations of its existing permit and the Resource Conservation and Recovery Act (RCRA).
Puget Soundkeeper was represented in this appeal and in its ongoing litigation by Richard Smith and Claire Tonry, Smith & Lowney PLLC.
Puget Soundkeeper is a community advocacy group whose mission is to protect and preserve the waters of Puget Sound. Established in 1984, Soundkeeper is a founding member of the international Waterkeeper Alliance.