The Washington Supreme Court ruled 7-2 Thursday that the Department of Ecology can continue testing for PCBs by using a method too imprecise to detect water-quality violations but more reliable than the alternative.
The Puget Soundkeeper Alliance argued that Ecology should adopt a method of laboratory analysis that can detect smaller amounts of PCBs, industrial chemicals banned in 1979 but which persist in the environment.
The court’s majority said that the method proposed by Soundkeeper has not been approved by the Environmental Protection Agency and can’t tell whether the PCBs are in the wastewater, test container or circulating in the air.
“Any polluter subject to an enforcement action stemming from Ecology’s use of such method of detection would predictably be able to challenge the validity of the agency’s actions because of the inability to identify the source of the pollution,” Justice Charles Johnson wrote in the majority opinion.
The case stems from a wastewater and stormwater discharge permit Ecology issued to Seattle Iron and Metals, an auto shredder and metal recycler. At issue was how Ecology monitors the discharge of PCBs by facilities with permits to release pollutants into water under the federal Clean Water Act. Businesses required to have permits include agricultural related manufacturers.
In a brief supporting Ecology’s position, the Northwest Pulp & Paper Association, Association of Washington Business and Association of Washington Cities argued that tossing out Ecology’s method for measuring PCBs would bring the permit program to a standstill.
Existing permits could become invalid and new permits couldn’t be issued while Ecology sought EPA approval to use the alternative proposed by Soundkeeper, according to the brief.
“It would have really thrown the water-quality program in this state in complete turmoil,” said Seattle lawyer James Tupper, who helped prepare the brief. “It would not a small thing to derail that program.”
Ecology uses the most sensitive PCB-detection method approved by the EPA, though it’s not precise enough to ensure compliance with the state’s clean water law, Justice Steven Gonzalez wrote in a dissent.
“In Washington, there is no right to discharge pollutants. Accordingly, an entity is not permitted to discharge unless it can prove that there will be no resulting pollution in our waterways,” he wrote. Justice Mary Yu joined in the dissent.
Soundkeeper Executive Director Chris Wilke said that precisely measuring PCBs would lead to cleaner water.
“It would reveal more violations and force facilities to take additional steps to remove highly toxic pollutants from our waters,” he said. “We’re disappointed in the decision.”
In his majority opinion, Johnson said Ecology sets limits on certain pollutants at levels that are currently undetectable to encourage scientific progress that will make water cleaner.