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WA State Supreme Court Denies Clark County’s Stormwater Appeal

Mar 6th, 2013
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Washington State Temple of Justice

In a unanimous decision, the Washington State Supreme Court has declined to review Clark County’s appeal of the WA State Court of Appeals stormwater ruling.

In September 2012, Washington State Court of Appeals upheld the Pollution Control Hearings Board ruling that Clark County’s weak stormwater plan allowed too much polluted runoff and violates both State and Federal laws to protect clean water. For more on that ruling read here: WA Court of Appeals Rules County’s Plan to Manage Polluted Runoff Illegal

Clark County subsequently appealed that decision to the Washington State Supreme Court which on March 5, 2013 issued a 2 page decision denying Clark County’s petition.

View the Washington Supreme Court ruling here: WA Supreme Court Rosemere v Clark County Order

Related articles:

From The Columbian:

“Rosemere Neighborhood Association, an environmental advocacy group that, along with Columbia Riverkeeper and Northwest Environmental Defense Center, have been winning at every level in their attempt to force Clark County to follow state default standards for managing polluted runoff.” ……….Read the full article here: Clark County dealt stormwater setback: State high court refuses to review unfavorable ruling

From The Oregonian: Washington Supreme Court rejects Clark County’s stormwater appeal

Posted in: Breaking News, Media/Press, Storm Water, Water Quality.
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Federal Judge Lifts Stay on Clark County Stormwater Case

Mar 2nd, 2013
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US District Court Tacoma

U.S. District Judge Ronald B. Leighton has lifted a stay on a federal lawsuit against Clark County regarding their stormwater management plan. The injunction was issued against Clark County in December 2011, ordering it to follow the state’s default stormwater rules while its stormwater plan was under review by the state Court of Appeals. The stay had been put in place pending the outcome of state court appeals of proceedings before the Pollution Control Hearings Board due to concerns the federal and state cases would conflict.

From Leighton’s decision:

“The case involves Clark County’s municipal storm sewer system, and the Department of Ecology’s 2007 Phase I Stormwater General Permit for that system. Ecology subsequently issued Clark County a Notice of Violation, alleging that the flow control policy was inadequate.

In 2010, Clark County and Ecology entered into an Agreed Order. Rosemere successfully challenged that Agreed Order before the PCHB, claiming (among other things) that it was not compliant with the Clean Water Act. The PCHB’s determination that the Agreed Order violated the Phase I permit and the Clean Water Act was affirmed by the Court of Appeals.

While those proceedings were pending, Rosemere brought this federal case. It seeks to enforce the Phase I permit, and penalties. This Court stayed the proceedings pending the resolution of the state court action.”

In September, the Court of Appeals upheld a ruling by the state Pollution Control Hearings Board, which said a compromise developed between the county and the state Department of Ecology was not backed by science and was insufficient under federal and state clean water laws.

Judge Leighton lifted the stay saying,

“The issues in these cases were never overlapping; they were simply similar. That similarity has been greatly diminished in the aftermath of the Court of Appeals’ decision, and the limitation of the issues the County seeks to litigate further in state court.”

To read the full decision: Judge Leighton Order Lifting Stay 2-21-13

Related articles:

From The Oregonian: Clark County could face tens of thousands of dollars in stormwater fines

From The Columbian: Lawsuit against county to proceed: Federal courts can hear stormwater dispute, judge rules

Posted in: Breaking News, Storm Water, Water Quality.
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EPA Rights Complaint Process Changes Fail To Ease Petitioner Concerns (reprinted w/permission from Inside Washington Publishers)

Feb 26th, 2013
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This article originally appeared in Inside EPA Weekly Report on February 22, 2013. It is reprinted here with permission of the publisher, Inside Washington Publishers. Copyright 2013. No further distribution is permitted.

Click here to view article (pdf format): EPA Rights Complaint Process Changes Fail To Ease Petitioner Concerns

Posted in: Breaking News, Media/Press, Water Quality.
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Communities Letter RE Sportsmen’s Act of 2012

Nov 24th, 2012
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This letter, signed by 35 environmental activists in 16 states and territories, was sent to Senators Tester, Reid, and Boxer:

Excerpt:

Dear Senator:
It has come to our attention that S. 3525, the Sportsmen’s Act of 2012 – scheduled for a U.S. Senate floor vote immediately after Thanksgiving 2012, contains language that appears to exempt certain munitions constituents, such as lead and propellants, from the Toxic Substances Control Act. [See Section 121 (a).] We are concerned because the releases of such substances, including lead, perchlorate, RDX, DNT, etc., have been widely released into the environment, posing serious risks to both human health and the natural environment.

To view the full letter, click here Sportsmen’s Act S3525 Communities Letter

Posted in: Breaking News, Media/Press, Safety, Water Quality.
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Letter of Support for Ho-Chunk Nation Land Claim

Oct 23rd, 2012
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Ho-Chunk Nation

In 1988, the Ho-Chunk Nation, a federally recognized Indian Tribe indigenous of Wisconsin, filed a claim for excess property at the Badger Army Ammunition Plant, an area within their aboriginal territory.  The Ho-Chunk Nation’s plans for the land, which are strongly supported by the surrounding community, include historic and cultural resource protection, natural resource enhancement, education, employment and economic development.  But last year, the U.S. Bureau of Indian Affairs refused to transfer the land from the U.S. Army to the Ho-Chunk, claiming it could not afford to conduct an environmental assessment.

Rosemere Neighborhood Association, along with over 50 community, environmental and citizens’ groups signed a letter in support of the Ho-Chunk Nation’s claim for this land containing significant historical, cultural and sacred resources to the Ho-Chunk people.

To view the letter: Ho-Chunk Letter of Support BIA 2012

Posted in: Letters of Support, Media/Press.
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OPB Announces Results of Its EarthFix Poll: NW Residents Rank Stormwater as Greatest Source of Water Pollution

Oct 20th, 2012
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OPB EarthfixOPB has published the results of their environmental news segment, EarthFix, water pollution survey.

Results show respondents ranked stormwater runoff as the greatest source of water pollution.

From OPB:

A new poll by Earthfix suggests growing awareness in the Northwest of some of the problems associated with nonpoint source pollution- the diffuse chemicals, bacteria, and sediment carried by rainfall and snowmelt moving downstream through a watershed.

Urban stormwater runoff beat out a number of other water pollution sources as a top concern in a poll commissioned by EarthFix and conducted by Davis, Hibbitts & Midghall (DHM Research).

The poll listed a number of sources of water pollution: industrial waste, agricultural chemicals, and sewage, among others.

When asked what the most significant source of water pollution was in their state, 25 percent of people in the Northwest chose the polluted runoff from roads and paved surfaces.

To read the full story go to: EarthFix Poll: Do NW Residents Care About Stormwater?

Survey results can be viewed or downloaded here: EarthFix CWA Survey 2012 PDF

Posted in: Media/Press, Safety, Storm Water, Water Quality.
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WA Court of Appeals Rules County’s Plan to Manage Polluted Runoff Illegal

Sep 26th, 2012
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FOR IMMEDIATE RELEASE:

September 26, 2012

Contacts:
Jan Hasselman, Earthjustice
Dvija Michael Bertish, Rosemere Neighborhood Association
Brett VandenHeuvel, Columbia Riverkeeper
Mark Riskedahl, Northwest Environmental Defense Center

WA Court of Appeals Rules County’s Plan to Manage Polluted Runoff Illegal

Taxpayer subsidy, fish-killing loopholes scrapped by judges
as violations to clean water laws

Tacoma, WA – In a major decision with statewide impacts in Washington State, a court of appeals ruled Clark County’s weak development rules that allow too much polluted runoff violate state and federal laws to protect clean water. The ruling, announced late Tuesday, signals an end to the county’s on-going failure to protect rivers, streams and salmon threatened with extinction.

“We applaud the court of appeals for recognizing that Clark County’s refusal to comply with clean water laws is unfair to other cities and counties in our state, not to mention industries, that continue to work hard to clean up our polluted waterways,” said Dvija Michael Bertish of the Rosemere Neighborhood Association. “As residents of Clark County who enjoy fishing and swimming in our local rivers, we’re fed up with our elected officials’ attempts to compromise our health and safety—especially when the law requires otherwise.”

Rosemere Neighborhood Association, Columbia Riverkeeper, and the Northwest Environmental Defense Center, represented by Earthjustice, challenged Clark County’s adoption of development standards that were too weak to prevent significant harm to the county’s already-stressed rivers and streams. “The Court of Appeals ruling comes down to this—clean water is our future and everyone needs to do their share to keep our water clean,” said Jan Hasselman from Earthjustice, who is representing the groups.

Polluted runoff, or stormwater, is a toxic stew of metals, oil, grease, pesticide, herbicides, bacteria and nutrients. When it rains, the toxic runoff drains off roofs and streets in amounts that seriously degrade water quality and kill marine life. The county and an association of developers appealed a January 2011 ruling of the state Pollution Control Hearings Board (PCHB) that the county is out of compliance with federal clean water laws and shifted the burden of protecting clean water from developers to local taxpayers.

Specifically, the PCHB found Clark County’s stormwater program:

  • Is not based on any science and failed to protect water quality and salmon.
  • Unlawfully exempts development projects that “vested” prior to April of 2010.
  • Unlawfully allows Clark County to shift resources from its existing retrofit program to mitigate for new development.
  • Unlawfully fails to require “low impact development” at new development and mitigation sites.

The Court of Appeals concurred. “Not only has Clark County violated the law, it is ignoring the very real economic and quality of life costs associated with dirty stormwater pollution,” said Brett VandenHeuvel, Executive Director of Columbia Riverkeeper. “The County’s rogue approach to dealing with stormwater pollution ignores the very real costs of increased flooding, polluted drinking water, and toxics in fish. It’s time stop using outdated thinking and transition to much greater reliance on low impact development and better land use planning. The stakes are too high for delay.”

The county has 30 days to appeal the decision to the state Supreme Court if it chooses. Additionally, a federal court has stayed an enforcement action against the county until the appeals court rules, and is likely to open the case now that the appeal is resolved.

A copy of the Court of Appeals ruling can be downloaded here: WA COURT OF APPEALS D2 41833-9-II PUBLISHED OPINION

A copy is available online here: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=418339MAJ

Other news links:

Editorial: County Keeps Hearing ‘No’ – Stormwater rules fight is being lost in the courts; it’s time to give up

Clark County loses stormwater ruling

Washington court rules against Clark County in polluted runoff case

Clark County loses polluted runoff case

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Posted in: Breaking News, Media/Press, Sole Source Aquifer, Storm Water, Water Quality.
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Communities’ Letter on EPA’s Final Vapor Intrusion Guidance

Jul 28th, 2012
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Vapor Intrusion: image source epa

Vapor Intrusion: image source epa

On July 26, 2012, a letter was sent to EPA’s Richard Kapuscinski from environmental organizations and citizens groups from all over the country – including Rosemere Neighborhood Association – concerned about EPA’s pending Final Vapor Intrusion Guidance.

The letter begins:

We, the undersigned are concerned that pressure from polluters, chemical producers, and property owners may weaken elements of EPA’s pending Vapor Intrusion Guidance, and we urge EPA to adopt an investigatory approach that is truly protective of Americans exposed to highly toxic vapors in their homes, schools, workplaces, and other buildings.

On July 6, 2012, Inside EPA, reported:
Industry is criticizing EPA’s approach to calculating the potential for subsurface contamination to migrate to indoor air, raising concerns over a technical document expected to be a component of the agency’s final vapor intrusion guidance and over a Region III proposal to offer government-funded mitigation for vapor intrusion at homes near a Superfund site in Pennsylvania.
Industry argues the so-called attenuation factors in the EPA documents are unnecessarily conservative and flawed because of incorrect assumptions of the rate at which contamination flows into residences.

The determination whether vapor intrusion poses a health threat at any existing building should not be based solely upon models and predictions. Models cannot account for changes in operating conditions, occupancy, building modifications, or structural changes such as adding utility lines that penetrate floors or settling that cracks slabs. One test is worth 1000 expert opinions. Decisions should be based upon multiple lines of evidence, including indoor air testing, subslab soil-gas sampling, and outdoor air monitoring.

To read the entire letter: Communities’ Letter on EPA’s Final Vapor Intrusion Guidance

Posted in: Breaking News, Energy, Media/Press.
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EPA Roundly Criticized Over Draft Supplement To Civil Rights Plan (reprinted with permission from Inside Washington Publishers)

Jul 19th, 2012
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This article originally appeared in Inside EPA Weekly Report on July 20, 2012. It is reprinted here with permission of the publisher, Inside Washington Publishers. Copyright 2012. No further distribution is permitted.

Click here to view article (pdf format): EPA_Roundly_Criticized_Over_Draft_Supplement_To_Civil_Rights_Plan_IEPA_07-12

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To view Rosemere Neighborhood Association comment letter on Title VI Supplement please go here: RNA Comments on EPA Draft Title VI Supplement

Posted in: Breaking News, Media/Press, Water Quality.
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RNA Comments on EPA Draft Title VI Supplement

Jul 19th, 2012
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On July 17, 2012, Rosemere Neighborhood Association submitted a public comments letter to EPA Administrator Lisa Jackson on EPA’s Draft Supplement: Advancing Environmental Justice Through Title VI of the Civil Rights Act

 
 

The public comments letter in part includes:

Despite Rosemere’s lawsuit and the subsequent national debate of the failures of the OCR, and despite your continued promises for EPA to increase efficiency in that office to make Environmental Justice a national priority, the OCR continues to fail in its intake and investigation guidelines in regard to Title VI complaints. To date, the EPA has ignored Rosemere’s various requests to meet with you and to voice our concerns and share our experiences in order to offer suggestions to improve OCR’s operations. And to date, only one case has ever attained a ruling of discrimination in support of Title VI claims [Angelita C. v. California Department of Pesticide Regulations] and it took more than ten years to achieve that result. Most cases are dismissed outright, claiming jurisdictional issues or other bureaucratic problems. Many groups across the country wonder why the OCR functions under such a dismal record, and this points succinctly to how OCR is disconnected from the disparate impacts that can be suffered by Environmental Justice populations nationwide.

Environmental Justice Enforcement is a very important tool that should be used to address discrimination that can cause adverse health impacts and environmental harm to neighborhoods where low income and minorities live and work. Whereas we appreciate the Title VI Supplement’s attempt to begin to fine tune the various agency failures, we feel that the timelines are vague and deficient and that they need to be more detailed to ensure future compliance success. We offer the general comment that EPA’s enforcement model under the supplement attempts only gentle compliance — collaboration, and conciliation rather than the promise of clearly defined relief. For example, in the Angelita case, the state of California did not experience the withholding of federal funds as required under Title VI guidelines when a real first-time case discrimination was established. We acknowledge that the state of California is currently experiencing a serious budgetary crisis, and that a freeze of federal funds as mandated under Title VI could be very serious, but without consistent penalties for discriminatory behavior there can be no success in altering the on-the-ground conditions that contributed the disparate impacts.

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It is reasonable for the community to request EPA to be more open, to collaborate with the complainants as well as the agencies that are the target of complaints. Please don’t let this process degrade further into a debate limited to state’s rights of self government v. federal regulation. That argument is easily used to dismiss valid claims of discrimination and only points out how civil rights violations continue unabated in our nation.

To view the letter in its entirety (pdf format):  Rosemere Neighborhood Association Comments on EPA Draft Title VI Supplement

Posted in: Breaking News, Media/Press, Water Quality.
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