Puget Soundkeeper statement on Washington Supreme Court decision in Seattle Iron and Metals Case - Puget Soundkeeper Alliance

To protect the lower Duwamish River and repair damage to the river and surrounding community, Soundkeeper took legal action to ensure that water quality monitoring adequately reports levels of toxic contaminants discharged to the river. Today, the WA Supreme Court ruled against Soundkeeper and in favor of the WA Department of Ecology – holding that state law does not require Ecology to demand that industrial pollution dischargers who dump PCBs into Puget Sound use a lab monitoring method to test for those PCBs that is sensitive enough to detect levels known to be unsafe for fish and people.

Soundkeeper is incredibly disappointed in this verdict, which threatens the health of the Duwamish River and the communities living nearby. Allowing the current PCB monitoring method to continue supports the constant discharge of PCBs into the Duwamish at rates that violate state standards and fail to protect human health. The community that uses this river for sustenance, recreation and enjoyment deserves better, and the discharge of PCBs threatens the ongoing recovery and cleanup of the river.

“This ruling makes it okay for Seattle Iron and Metals to continue adding unacceptable amounts of PCBs into a river that cannot and should not contain any more of these harmful toxic pollutants. This is a failure on behalf of the courts and our public agencies to protect human health and the environment. The public deserves better, and we will keep fighting for this,” said Puget Soundkeeper Executive Director Chris Wilke.

In the case, Puget Soundkeeper argued that methods for measuring toxic discharge to public waterways must be sensitive enough to truly protect human health and the environment – and alleged that there is no excuse for not using the best available method, particularly when measuring contaminants known to have a serious and long-term impact on human health. Today the Court’s majority ruled against that argument, enabling permits that don’t require polluters to test for dangerous levels of PCBs.

Importantly, Justices Gonzales and Yu issued a strong dissenting opinion that got this issue right.

From the dissent (bolding added):

“The heavy contamination of the Waterway, coupled with the tenacious bioaccumulative properties of PCBs, illustrates the significant hazard this pollution poses to aquatic life and to the health of Washington citizens, especially Native American peoples, who consume and commercially harvest Waterway fish and shellfish. To combat and protect against these risks, we must zealously guard our natural resources. Granting an effluent permit that fails to ensure compliance with our strict water quality standards does little to protect these resources and will ultimately contribute to the continued contamination of the Waterway. Entities have no right to pollute state waters.”

Soundkeeper will continue to fight for requirements that truly protect public health and public waters.

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Supreme Court Case

Seattle Iron and Metals, a metal recycling facility on the Duwamish, discharges toxic polychlorinated biphenyls (PCBs) to the river in wastewater and stormwater. PCBs are known to be carcinogenic and persist in the environment for decades.

The current method required in SIM’s wastewater discharge permit for measuring PCB levels can only detect levels of PCBs at 5,000 nanograms or above. The permit limit is set at 8.9 nanograms for daily discharge. The use of an outdated monitoring method effectively raises the permit limit to 5,000 nanograms, a level that violates state water quality standards.

Soundkeeper, represented by Smith & Lowney PLLC, argued before the Washington Supreme Court in October 2017 that SIM’s wastewater discharge permit should require a more advanced monitoring method developed and recommended by the Environmental Protection Agency.

The lack of an appropriate monitoring method is especially concerning because past data on SIM’s discharge of PCBs shows violations of their permit limits and state water quality standards.

  • Records show discharge of up to 1,590 nanograms of PCBs from SIM’s main site. The permit limit is 8.9 nanograms for daily discharge and 5.1 nanograms as a monthly average.

Background

Soundkeeper first filed the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) suit against Seattle Iron and Metals on July 12, 2012. The suit is ongoing and seeks to enforce provisions of these acts to stop pollution and repair damage to the river and surrounding community.

Seattle Iron and Metals is a scrap metal and vehicle recycling facility at 601 S Myrtle St, Seattle, Washington, in Seattle’s Georgetown neighborhood. The facility is a large industrial yard with a high-volume open air metal shredder, large piles of scrap metal, and substantial heavy machinery and truck traffic. It discharges wastewater and stormwater to the Lower Duwamish Waterway. In the past, the facility has discharged metal debris and scrap directly to the river during loading and unloading, in addition to violating permit limits for PCBs in treated wastewater discharged to the river. The site also generates dust and debris.

  • As a result of our lawsuit, an expert is currently monitoring SIM’s dust to evaluate its reach and toxicity, and ways to control it.
  • Until 2013, SIM’s permit contained an illegal “mixing zone” for PCBs, allowing much higher levels of PCBs under the mistaken theory that they could be diluted over time in the river. Soundkeeper successfully appealed the inclusion of a mixing zone in the permit.
  • SIM’s permit limits (since 2013) for PCB discharges from its Main Lot to the river are 8.9 nanograms (daily) and 5.1 nanograms (monthly average).
  • Since 2013, SIM has discharged as much as 1,590 nanograms PCBs to the river through its main outfall.
  • SIM has discharges as much as 1,100 nanograms PCBs to the river from its annex site.
  • Seattle Public Utilities has measured as much as 4,870,000 nanograms PCBs in the dust that accumulates on SIM’s roofs, 4,020,000 nanograms PCBs in sediment from catchbasin in SIM’s employee parking lot, and 2,950,000 nanograms PCBs in the dust and trackout SIM discharges to the street.

The Duwamish River was designated a federal Superfund site by the Environmental Protection Agency in 2001, identifying it as one of the nation’s most toxic hazardous waste sites. Over 40 contaminants, including PCBs, are found in the river’s sediment at levels unsafe for human health. The river originates as the Green River at the crest of the Cascade Mountains and is the traditional land of the Duwamish Tribe. The Muckleshoot and Suquamish Tribes have treaty fishing rights on the river. All resident fish in the Duwamish are unsafe to eat because of PCB levels in the river, and health advisories recommend limiting consumption of migratory species that return to the river. The river supports populations of seven salmon and trout species.

Polychlorinated Biphenyls (PCBs) are a class of toxic man-made chemicals that were manufactured from 1929 until their production was banned in 1979. They do not readily break down in the environment and accumulate in sediment and in the fatty tissue of animals and people. Studies show that PCBs can cause a number of adverse health effects, which include effects on the immune system, reproductive system, nervous system, and endocrine system. They have been shown to cause cancer in animals and studies in humans support evidence that they are carcinogenic. As Governor Inslee noted in his Executive Order creating the Southern Resident Killer Whale Recovery and Task Force, PCB contamination is one reason for the endangered status of Southern Resident Orca Whales.

Puget Soundkeeper’s ongoing Clean Water Act and Resource Conservation and Recovery Act case against Seattle Iron and Metals aims to protect the river and surrounding community from ongoing discharge of toxic PCBs. The lawsuit continues, and is scheduled to go to trial in federal Court in Seattle in February 2019. Soundkeeper is represented in this case by Smith & Lowney PLLC.