This month, we’re celebrating—because Puget Soundkeeper won not one, but two legal victories that will set a precedent for stronger regulations on toxic pollution in our waterways. The decisions in these two cases will give Ecology the tools to write stronger pollution permits for industrial facilities and will protect people and wildlife in Puget Sound from dangerous chemicals.

BP Cherry Point Oil Refinery

Soundkeeper, along with Friends of the Earth and North Sound Baykeeper, challenged the wastewater discharge permit issued to BP’s oil refinery at Cherry Point because our research revealed that the permit was not strong enough to be truly protective of waters in the area around the sensitive Cherry Point Aquatic Reserve. Discharges from the oil refinery flow directly into this protected area, which is designated as sensitive bird habitat and sustains a critically important population of herring. These tiny fish may not look like much, but larger species rely on them for food. Without the herring, birds, seals, salmon and orcas are in danger, and the herring population at Cherry Point has declined by 90 percent since 1973.

BP’s wastewater discharge permit allowed the refinery (the largest in Washington State, built in 1971) to fail a WET (whole effluent toxicity) test, without that failure being considered as a violation of the Clean Water Act. A WET test is the only tool that measures the combined impact of individual pollutants on aquatic life, which is important because some chemicals interact in ways that can’t be predicted by other types of analysis. To conduct the test, researchers expose small organisms (usually fathead minnows and daphnia) to a wastewater sample and count how many die as a result of the contamination level.

Under their permit, BP could kill all the fish in their WET test sample and still avoid a violation of the Clean Water Act. In 2014, Soundkeeper won a ruling on this same permit that clarified the language, but left too much wiggle room. Soundkeeper pushed for more, and in late July we got it. The Washington Court of Appeals came down strongly on the side of clean water, issuing a verdict that forces the Department of Ecology to consider a single failure of a WET test a violation of the Clean Water Act. Every time a violation occurs, it sets in motion a process to improve water quality at that site and bring the discharger into compliance with their permit.

The Appeals Court decision also contains strong language admonishing Ecology for failing the public trust to uphold the goals of the State Environmental Policy Act and to protect our common waters. The verdict doesn’t only impact BP. It sets a precedent for other oil refineries and major industrial facilities statewide, helping to better protect all of our waterways from toxic chemicals.

Seattle Iron and Metals

It’s widely known by now that the solution to pollution is not dilution – especially for highly toxic chemicals like PCBs. Yet some regulations allow that belief to persist. Mixing zones allow facilities that discharge pollutants to violate water quality standards at the point where their discharge enters a river or stream, as long as samples from concentrations outside an established boundary are diluted enough to satisfy the conditions of their permit.

Why is this a problem, if the water outside the mixing zone is clean enough? Because some chemicals don’t dilute in water, but build up in sediment and in the tissue of aquatic organisms. Pollutants like these are known as persistent, bioaccumulative and toxic substances, and they are a major issue on the Duwamish River, which carries a heavy burden of industrial pollution.

The Soundkeeper boat passes by Seattle Iron and Metals

On July 28 the Pollution Control Hearings Board of Washington ruled in Soundkeeper’s favor in a case against Seattle Iron and Metals (SIM), the city’s largest scrap metal facility. The SIM scrap yard discharges wastewater directly to the Duwamish, and their permit included a mixing zone for polychlorinated biphenyls (PCBs), which are persistent, bioaccumulative, and highly toxic. A potent carcinogen, PCBs are the main driver for fish consumption advisories on the Duwamish and around Puget Sound, and ongoing cleanup of Superfund sites on the river requires removal of sediment contaminated with PCBs and other toxics. The ruling declared that the state should not allow mixing zones for PCBs, requiring a new permit for SIM, and potentially for a number of other facilities on the Duwamish. The Hearings Board also went farther, stating that mixing zones for any persistent bioaccumulative toxin should seldom, if ever, be granted.

Soundkeeper’s work in this case is far from finished—we now are focused on getting a better testing process put in place for PCBs, one that is more sensitive and therefore better protects waterways and human health. But we’re still counting this a victory for clean water.

We’re incredibly grateful to Soundkeeper’s legal team at Smith & Lowney PLLC: Richard Smith, Claire Tonry, and Elizabeth Zultoski represented Soundkeeper in these two cases.


Photos: (1) Washington Department of Natural Resources (2) Puget Soundkeeper