Northwest Environmental Advocates Files Suit
After ten years of on and off court action, a lawsuit was filed this week to force the U.S. Environmental Protection Agency to protect Oregon waters by adopting limits on four toxic pollutants.
Northwest Environmental Advocates, a Portland-based environmental law group, filed the suit Tuesday in U.S. District Court for the District of Oregon in Portland.
At issue is four toxic pollutants that NOAA Fisheries has determined jeopardizes salmon and steelhead listed as threatened or endangered under the federal Endangered Species Act, given the current standards that have been in place for 25 years.
Those pollutants are copper, cadmium, aluminum and ammonia.
"Once again we must return to court to make sure that the EPA and State of Oregon carry out their responsibilities under the Clean Water Act," said NWEA executive director Nina Bell. "Given that EPA is required to protect Oregon waters from these four toxic pollutants specifically because of their effects on threatened and endangered species, it is shocking how slow the agency's response has been."
"It appears we have to sue them on nearly every required action," she added
The battle over Oregon's water quality standards has been a long one for NWEA and has included, since 2004, such issues as toxic contaminants, temperature standards in rivers and the amount of fish from Oregon water bodies that is safe to eat.
This lawsuit, filed in District Court by Jamie Saul and Allison LaPlante of the Earthrise Law Center at Lewis and Clark Law School, specifically addresses the four pollutants and asks for injunctive relief under the Clean Water Act, naming EPA and EPA administrator Gina McCarthy as defendants for failure to perform mandatory duties under the Act.
The case was assigned to Judge Anna J. Brown (No. 3:15-cv-00663-BR).
The issue over the four pollutants began in July 2004, when the Oregon Department of Environmental Quality submitted water quality standards for a number of toxic pollutants to the EPA. This was the first attempt by Oregon to update its aquatic life water quality criteria for toxic pollutants since 1988, according to the court brief.
However, the EPA, even after being dogged by NWEA, didn't act on Oregon's standards until Jan. 31, 2013. EPA approved most of Oregon's standards, but disapproved seven for toxic pollutants, including aluminum, ammonia and copper "intended to protect aquatic life from acute and chronic toxicity and the acute aquatic life criterion for cadmium," the court brief says.
Oregon failed to adopt these EPA standards within 90 days, which automatically required EPA to set the water quality standards that Oregon failed to adopt. EPA passed the responsibility back to Oregon to set standards on copper, cadmium, aluminum and ammonia in May 2013. The state then had 90 days to set those standards. At this point, according to the brief, Oregon has no "public proposal for revising the toxics criteria. . .."
EPA's disapproval of the four toxins was based on findings by NOAA Fisheries that the criteria "cause significant adverse toxicological and biological effects" on listed species and would jeopardize their continued existence, the brief says.
Oregon adopted new water quality criteria for ammonia Jan. 7, 2015, but EPA has failed to act on the new criteria.
NWEA informed EPA Feb. 12, 2015, of its intent to sue within 60 days for the failure to set Oregon toxics standards. This current lawsuit is the result of that announcement.
"Everything the State of Oregon does to carry out its responsibilities under the Clean Water Act moves at a glacial pace and the federal agencies must be sued on everything to get them to put one foot in front of the other, as the law requires," Bell said of Oregon's 25-year old toxics standards.
"Oregon's forest practices are in the dark ages. Only a tiny trickle of water pollution discharge permits are being renewed. Oregon taxpayers and the environment deserve better."
The inaction leaves Oregon with toxic pollutant standards for aluminum, copper and cadmium that were last set in 1988. The standard for ammonia was last set in 1991.
Even at these low standards, the Klamath, South Umpqua, Lower Owyhee, Lower Columbia, Middle Willamette and Tualatin rivers fail to meet the standards for at least one of the four toxic pollutants, the brief says.
Copper is one of the most toxic metals for salmon. It causes them to lose their sense of smell, which is important to their ability to return to spawn, NWEA says. It also causes salmon to lose their instinctive response to avoid predators. Copper is present in sewage discharges, stormwater, and agricultural chemicals.
Aluminum ions act as surface toxicants, the brief says, binding to or coating a fishes' gills. Aluminum is introduced into Oregon waters by industrial waste and wastewater treatment plant discharges.
Ammonia occurs naturally and can be an important source of nitrogen for plants, but at higher levels can cause neurological effects on fish, particularly salmon. Sources are agricultural and municipal runoff.
Cadmium is especially toxic for fish. A carcinogen, it can affect respiration, growth and reproduction. Sources are mining, smelting, discharges from electroplating and the manufacture of batteries and electronic components.
Northwest Environmental Advocate Challenges Oregon's Clean Water Act Decisions by Staff, Columbia Basin Bulletin, 10/5/12
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