At least twice, the department has been told by its overseers at the U.S. Environmental Protection Agency to fix the problem and better protect people's health. It was close to finally doing that last year -- until Boeing and other business interests launched an intense lobbying campaign aimed not just at the department but also at the Legislature and then-Gov. Chris Gregoire. That is the picture that emerges from recent interviews as well as government documents obtained by InvestigateWest under the Washington Public Records Law.
The problem lies in the Ecology Department's estimate of how much fish people eat. The lower the amount, the more water pollution it can legally allow. So by assuming that people eat the equivalent of just one fish meal per month, the department is able to set less stringent pollution limits.
Meanwhile, citing the health benefits of fish, the state Department of Health advises people to eat fish twice a week, eight times as often as the official estimate of actual consumption. The state knows that some members of Indian tribes, immigrants and other fishermen consume locally caught seafood even more often than that and are therefore at greater risk of cancer, neurological damage and other maladies.
The Boeing Co. looms large in this story. In June 2012, Boeing said if Ecology went ahead with plans to make fish safer to eat, it would "cost the company hundreds of millions of dollars and severely hamper its ability to increase production in Renton and make future expansion elsewhere in the state cost prohibitive," according to a Gregoire aide's reconstruction of a conversation with a Boeing executive that month.
In July 2012, the Department of Ecology announced it would not go forward with a new rule to adjust the fish-eating estimate as planned. Instead the agency launched a "stakeholder process" that would delay any new rules for at least two years. Last week that process plodded on in Spokane, where state and local government officials and others spent more than three hours discussing the many contaminants that for years have prompted official state warnings against eating Washington fish too regularly.
"All we've seen is delay," said Bart Mihailovich of the Spokane Riverkeeper environmental group, one of several that have refused to participate in the new series of meetings. "Why are we going back and doing what was already done?"
At the meeting in Spokane on March 28, a representative of Indian tribes called the Ecology Department's conduct "a betrayal" and explained that the tribes are boycotting the current process because it is unnecessary.
"Our tribal leadership's main responsibility is simply to protect our people," said Marc Gauthier, a representative of the Upper Columbia United Tribes, before leaving the meeting. "It comes down to that basic human desire to protect your family."
The Ecology Department had at least one other false start in fixing the rules, back in the mid-1990s, an effort that petered out even before a rule change was proposed, said Melissa Gildersleeve, the manager overseeing the current stakeholder process. That followed a 1994 study by the Columbia River Intertribal Fish Commission that documented how the national estimate of one fish meal per month was greatly and regularly exceeded by some members of Indian tribes.
While who eats how much contaminated fish is a slippery and much-debated corner of science, few of the parties involved in the current dispute in Washington contend that the current fish consumption rate accurately reflects the true amount eaten, especially by some groups such as members of Indian tribes, subsistence fishermen and immigrants. The figure came from a 1973-74 federal study that asked consumers to fill out "food diaries" for three days, according to the U.S. Environmental Protection Agency.
Gildersleeve said the Ecology Deparment had hoped last year to estimate a more realistic fish consumption rate as part of a process to update rules on how toxic sediments must be managed. But a storm of protest from industry and local government officials who operate sewage-treatment plants convinced the agency to slow down, she said. The sediment rules went into effect without changing the fish consumption estimate.
"In July 2012 our director realized that this was going to be incredibly controversial and that people wanted to talk about how that new fish consumption rate would be implemented," Gildersleeve said. "We tried to move fast on the sediment management standards … but people realized we're not going to be able to have a conversation around how to implement this."
Ecology Department emails show that by mid-summer, the agency already had been trying for months to assure Boeing and other business interests that it was coming up with "implementation rules" that would make it easier to comply with the new pollution limits. Among the ideas floated was allowing businesses up to 50 years to reduce their toxic pollution loads. Such so-called "variances" of up to 40 years still are under consideration, Gildersleeve said in an interview this week.
It's clear from internal emails obtained by InvestigateWest that Department of Ecology staffers were hearing from industry a lot in the run-up to changing course. For example, the head of the agency, Ted Sturdevant, commented on a Forbes article that identified Washington as one of the top states likely to boom over the next five years.
"Not if we pass new fish consumption rates! At least according to industry," Sturdevant wrote in an email to co-workers.
Environmentalists and Indian tribes had hoped for a new start when Gov. Jay Inslee came into office this year. But so far Inslee, who chose Sturdevant as his executive director for legislative affairs and policy, has been silent on the issue.
Emails from the governor's office turned over by the Department of Ecology, however, hint at the political pressure that Boeing was exercising. Correspondence between former Ecology Director Sturdevant and Gregoire aides on the issue is replete with references to Boeing's stance on the issue, and the subject line of one email is "Albaugh," a reference to Jim Albaugh, CEO of Boeing's Commercial Airplanes Division.
"The rhetoric from The Boeing Company on this topic is becoming increasing (sic) severe and Jim is expected to raise the issue," Gregoire lieutenant Keith Phillips wrote June 19 to Sturdevant just before Gregoire's meeting with a Boeing executive.
InvestigateWest asked Boeing spokeswoman Kate Bergman for comment for this story March 28 but the company had not commented by last Friday.
U.S. Environmental Protection Agency records show that Boeing holds permits to discharge wastewater into local waterways at nearly 20 locations in Snohomish and King counties. The company's Snohomish County locations are at 3220 100th St. SW, Everett and 3003 W. Casino Road, Everett.
Businesses and local governments are nervous about what might result from Washington re-estimating the fish consumption rates in part because Oregon already has boosted its rate and that looks likely to cost many millions, said Chris McCabe, executive director of the Northwest Pulp and Paper Association.
His trade group commissioned a study of Oregon paper mills' likely costs under the higher fish consumption assumptions, and calculated it would cost that industry alone $500 million to make the switchover, plus $30 million to $90 million annually in operations costs. And even then it would not necessarily mean the industry was meeting what are expected to be very tight pollution limits, McCabe said.
The study by HDR Engineering of Boise said some technologies might be able to meet the stricter water-pollution limits that would result but it was "impossible to know for certain whether technologies actually can or cannot meet" the new standards.
McCabe said the Ecology Department's proposal "was cart before the horse."
"Ecology needed to do a lot more thinking about different questions," McCabe said. "What Ecology came up with is a more thoughtful, more reasonable process. … We're trying to be proactive and come up with solutions to this."
Gary Chandler, chief lobbyist for the Association of Washington Business and a former legislator, met several times with Gregoire, her aides or Sturdevant on the issue, he said. His message: don't tighten water quality standards until there is technology available to meet the new standards.
"Let's make sure that whatever standard you come up with is attainable," Chandler said he told the governor and others. "If you set a standard that is 10 times, 15 times, five times the present standard, how are you going to meet it?"
Local governments also fought for a delay. Like the pulp and paper industry, they are worried about tighter pollution limits because municipal sewage-treatment plants are a major source of pollutants and dump toxins that accumulate from myriad sources.
"This could all be very, very expensive and there are a lot of questions about what could be the impact," said Carl Schroeder, a lobbyist for the Association of Washington Cities. "We're not saying don't do this. We're just saying we all want to know what's expected and how we're going to pay for it."
Washington State Department of Health toxicologist David McBride talked about another kind of cost -- that of letting the pollution continue -- at March 28's meeting with the Department of Ecology. He said one national study tested mercury in women and extrapolated that some 3.5 million women nationwide were overexposed to the neurotoxic element. Those women are estimated to give birth each year to 400,000 children, he said. Mercury is known to cause learning disabilities, affecting the brain and nervous system of fetuses and children.
McBride said a smaller Washington state study showed a similar proportion of Washington women are taking in too much mercury. The principal source of mercury for most Americans is seafood.
"We have some overexposed populations," McBride said. "It can affect a person's IQ and ability to learn … We have more people who will have (learning) disabilities, and disabilities come with costs."
Nevertheless, McBride said, health officials encourage eating fish because it is a relatively healthy source of protein, especially compared to red meat. It's important to choose fish species that are less likely to be contaminated, he said.
"We want people to eat fish, be smart, choose wisely," McBride said.
Nina Bell of Northwest Environmental Advocates was part of the work group that dealt with tightening Oregon's fish consumption formula and is the only environmentalist still working through Washington's process.
She said Oregon's process focused heavily on "loopholes" to allow businesses leeway and that she sees Washington looking for even more of those loopholes. She called the Department of Ecology's approach "a wholesale attack on the water-quality program in the hopes of quote 'getting buy in' from industry."
"It's quite startlingly different from Oregon. It's worse," Bell said. "I think they want to push the boundaries more on the offramps and loopholes and they want to throw the doors open for every underlying assumption to be questioned."
Since the Ecology Department changed course last year, environmentalists and Indian tribes have repeatedly called for the federal EPA to step in and take over Washington's process.
"We have the science. We have had all the discussions," said Jim Peters of the Squaxin Island Tribal Council. "Now we're in a situation where we have the state of Washington that continues to stall because of other pressures out there."
Some of that was admitted in an email from Sturdevant to Gregoire adviser Phillips just before the governor's meeting with Boeing. Phillips wrote that the state should argue, "Our current fish consumption rates are inaccurate and need to change. If we don't change them, EPA or the courts will do it for us."
The email went on, "The tribes have a legitimate complaint that our standards ignore them."
A month later the department walked back its plans. It is not known what Gregoire was told at her meeting with Boeing.
EPA plans to meet next month with representatives of tribes as well as the Ecology Department's new director, Maia Bellon, said Angela Chung, water quality standards unit manager for EPA's Seattle-based Region 10. But EPA does not plan to take over the state's process, she said.
"We think that even with knowing the long history of commitments that have been made and the frustration with how slow the state has been, at least from the tribal perspective, we think the process the state has identified is one we want to support," Chung said.
InvestigateWest (www.invw.org) is a new model for investigative journalism for the Pacific Northwest. The nonprofit group was founded in 2009 with a stated goal of strengthening communities, engaging citizens in civic life and helping influence policy policy priorities through independent journalism.
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