Saturday, December 30, 2006

Grant County PUD Gears Up for the Coming of Microsoft and Yahoo Server Farms

Grant County Public Utility District, in central Washington, has adopted a $469.8M budget for 2007, a 14% increase over 2006. As reported by David Cole of the Columbia Basin Herald, the budget addresses the increase in demand due to the coming of Microsoft and Yahoo to this rural county, as well as the expenses involved with the FERC relicensing of its Priest Rapids Dam.

"• The district has to respond to increasing growth and customer demand, including expansion of the electric system for businesses locating to Grant County like Microsoft Corp. and Yahoo!, [PUD spokeswoman]Bjork said.

• The PUD anticipates receiving its new operating license in 2007 for the Priest Rapids Hydroelectric Project from the Federal Energy Regulatory Commission. The PUD expects to meet additional undetermined FERC requirements accompanying the license. The budget reflects projected costs to meet those requirements, Bjork said."

Grant Co. PUD owns and operates two dams on the Columbia River, Priest Rapids and Wanapum. Wanapum is currently undergoing a major turbine upgrade.

Thursday, December 28, 2006

"He'll have days where he's in trouble, but he won't have any trouble."

Columbia Basin Herald -- By Matthew Weaver
"[Dick] Erickson retires [as Manager of the East Columbia Basin Irrigation District] in May 2007. In the meantime, he is working with his replacement, the irrigation district's engineer, Craig Simpson, who recently assumed the title of senior assistant manager and deputy secretary for the interim. Ian Eccles assumes the position of district engineer.'

My headline, a quote from the article, is what Mr. Erickson said about what his replacement can look forward to. And it is my own hope for myself for the New Year. Happy New Year to all.

Tuesday, December 26, 2006

SCOTUSblog On the Coming Wave of Environmental Cases

Marty Lederman at SCOTUSblog has a roundup of environmental law cases at the US Supreme Court.

WA Ecology unhappy with EPA's "relaxed toxics reporting"

"FOR IMMEDIATE RELEASE - Dec. 22, 2006 06-268 Relaxed federal toxics reporting affects Washington residents OLYMPIA - The head of Washington Department of Ecology (Ecology) expressed disappointment today that the federal Environmental Protection Agency (EPA) has relaxed pollution-reporting rules requiring industries to report the toxic substances they create. "This change means that the people of Washington state will lose valuable information regarding up to 1.5 million pounds of toxic releases annually in and near communities throughout the state," said Ecology Director Jay Manning. "Additionally, we could lose all release data for eight of the top 40 facilities with the highest relative risk ranking, based on 2002 information." Manning added: "The Toxics Release Inventory is part of the federal Community Right to Know Act, and the new, relaxed EPA reporting requirement denies our citizens information they have a right to. This federal decision not only reduces our ability to protect public health and the environment, but it also threatens the public's trust in their government." On Monday, EPA adjusted pollution-reporting requirements for manufacturers that it keeps in an information database called the federal Toxics Release Inventory (TRI). Federal law requires that industrial facilities and manufacturing plants report specific toxic chemicals discharged based on their use of the chemical, even if they are not discharged in toxic amounts at any one time. The changes, issued in the name of reducing burden to industry, won't result in a significant reduction in the time it takes industry to meet the requirements, Manning said. However, it will deprive the public of information they have been entitled to since 1987. The new federal requirement allows more businesses to use a short form to report the name of the chemical used or released. Previously, these businesses were required to report detailed information about how a chemical was used, released, transferred, burned for energy recovery, recycled or disposed off site. The TRI tracks 650 chemicals that are in commercial use. Manning said the current TRI reporting requirements have worked well. They have helped regulators keep track of releases of pollution and helped agencies such as Ecology focus resources on areas where pollution-prevention efforts can pay off. In fact, many businesses use the inventory as an opportunity to show how little pollution they release. The inventory provides critical information to Washington residents and to the news media regarding toxics produced in their communities. "To weaken these regulations is a step backwards and a disservice to the public and increases the risk toxic chemicals pose to human and environmental health," he said. Ecology is particularly concerned about certain long-lasting, toxic substances, such as mercury , that build up in the tissues of humans and animals. Statewide mercury releases dropped 11 percent from 2001 to 2002, a trend Ecology wants to see continue, Manning added. Ecology is working to reduce toxic chemicals in Washington. There are about 80,000 chemicals in use in the U.S. today and while many of them have added to society's quality of life, the health effects from the thousands of these chemicals, particularly on young children, is not known. # # # Media contact: Sandy Howard, public information manager, 360-407-6408"

Here is the link to EPA's explanation of the new rule.

Saturday, December 23, 2006

First Circuit Case on RCRA Citizen Suits: Possible Relevance to the Columbia?


In this 12/22/06 opinion, the U.S. Court of Appeals for the 1st Circuit upheld a district court decision ordering a risk assessment of mercury contamination in the Penobscot River. (HT to Howard Bashman at How Appealing)

From 1967 to 1982, Mallinckrodt, then called International Minerals and Chemicals Corporation, owned and operated a chlor-alkali plant (the Plant) situated on the banks of the Penobscot River in Orrington, Maine. Thereafter, the Plant continued operations under other owners, namely, Hanlin Group, Inc. and HoltraChem Manufacturing Co.,2 until it closed in 2000. During the period of its operation, the Plant deposited tons of mercury laden waste into the Penobscot River.[p.3]

To evaluate the feasibility of remediation

[A] 1993 consent decree contemplated a tripartite process comprising site investigation, evaluation of possible corrective measures, and remediation. In line with the first phase of this process, Mallinckrodt compiled and submitted a site investigation report. In March of 1997, EPA and MDEP, acting in concert, issued a draft notice of disapproval. Mallinckrodt countered with a supplemental site investigation report but, in 2000, EPA and MDEP again disapproved. Among other things, the regulators instructed Mallinckrodt to study the effects of mercury downriver from the Plant. Within a matter of months, Mallinckrodt commissioned a study aimed at examining downriver mercury contamination. It conducted a second downriver study during the summer of 2001. Notwithstanding the submission of these studies, however, the district court supportably found that Mallinckrodt made only minimal efforts to pursue the designated line of inquiry and that the decision to forgo more vigorous efforts was deliberate. [cit. omitted] In the midst of this sparring, two environmental groups — the National Resources Defense Council and the Maine People's Alliance — joined forces to commence a citizen suit under RCRA § 7002(a)(1)(B). The plaintiffs alleged that mercury contamination downriver from the Plant "may present an imminent and substantial endangerment to health or the environment." Acknowledging the possibility that remediation might eventually prove to be either unnecessary or infeasible, their principal prayer for relief was that Mallinckrodt be ordered to fund an "independent, comprehensive, scientific study to determine the precise nature and extent of the endangerment."[p. 4]

This case revolves around the meaning and purport of RCRA § 7002(a)(1)(B), a statute that ... allows citizens to sue persons or firms whose handling of solid or hazardous waste "may present an imminent and substantial endangerment to health or the environment." Id. The district court read this language as meaning that such suits could be brought to alleviate reasonable medical or scientific concerns. Me. People's Alliance, 211 F. Supp. 2d [237] at 252. Mallinckrodt urges a more circumscribed interpretation. [p.19]

The Court, at footnote 11, does remind us, however:

that a private party can[not]interfere with an EPA prosecution or disturb the finality of a negotiated settlement. ... See Supporters to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d 1320, 1323-25 (7th Cir. 1992).
Has the Teck Cominco-EPA agreement with respect to Lake Roosevelt foreclosed the possibility of a similar citzen suit for mercury contamination in the Columbia? This agreement is highly unusual in that it is a contract between a foreign company and a US government agency. Is it a "negotiated settlement"?

Governor Worried about Hanford

Tri-City Herald -- By Annette Cary
"In addition, Gregoire is proposing $1.3 million for additional support of the state Attorney General's Office to make sure it has the money it needs to enforce Hanford cleanup and address other legal issues affecting the nuclear reservation. 'I'm worried, candidly,' she said about Hanford cleanup and litigation in a telephone conversation with the Herald's editorial board Thursday. 'I'm not a big believer in suing. But legal work needs to be done.'"

Thursday, December 21, 2006

CAO Decision from the Washington State Supreme Court

1000 Friends of Washington v. McFarland
"Today, we are asked to decide whether county ordinances enacted under detailed procedures established by the state Growth Management Act (GMA), chapter 36.70A RCW, to designate and protect critical areas are subject to a veto by a local vote. More than a decade ago, this court substantially answered that question. Brisbane, 125 Wn.2d 345. There, we concluded that GMA ordinances, at least those relating to critical areas, are not subject to referenda. We reached that decision on several grounds, including the fact that the county was required by the State to designate and protect critical areas and that the State had established elaborate procedures for public participation that were inconsistent with local up and down votes. The petitioners ask us to revisit and overrule Brisbane. We decline to do so.

HT to Stefan at Sound Politics, who does not concur.

Don't miss Justice James M. Johnson's dissent:

"The King County Council (Council) adopted three controversial ordinances. The three were a "critical areas" ordinance, a clearing and grading ordinance, and a stormwater ordinance, which regulated the use of land only in unincorporated areas of King County. Those ordinances were adopted only by the votes of council members representing incorporated King County; council members representing the affected areas opposed each ordinance. Appellant Rodney McFarland filed referenda to allow voters to determine the council ordinances at election. Advocacy groups opposed to the referenda filed to enjoin the referenda and were joined by King County, which has taken over the case. The King County Superior Court by order prohibited election on the proposed referenda. A majority of this court now approves this denial of the people's exercise of their right to check legislative power."

And later in the dissent:

"Operating akin to an executive veto, the people’s exercise of the right of referendum on GMA-related local ordinances is entirely permissible. Referenda calling for a “yes” or “no” vote on nonmandatory, local ordinances passed pursuant to the GMA are consistent with GMA procedural requirements."

Update 12/22/06: Comments from the parties: Keith Ervin -- Seattle Times staff reporter

"In Washington state and maybe other places we're simply moving away from the concept of private property into more collectivist control of everything," said Rodney McFarland, of May Valley, the president of the Citizens' Alliance for Property Rights. "I don't think that's good." McFarland had submitted the petitions requesting that King County put its 2004 land-use rules on the ballot. Tim Trohimovich, planning director of the pro-growth-management group Futurewise, which went to court to block the referendums, welcomed the court ruling. (Futurewise's suit against McFarland was filed under the group's former name, 1000 Friends of Washington. The case title is 1000 Friends of Washington v. Rodney McFarland.) "We need effective growth management," Trohimovich said. "The voters have recognized it and the courts have recognized it — and in all those cases by a pretty wide margin."

Wednesday, December 20, 2006

Small-Lot Development in Manchester Draws Commissioners' Attention Local
"Dateline:Manchester Kitsap County commissioners have issued a 90-day moratorium on development permits for small residential lots in the county’s rural zones, if they are to be served by on-site sewage systems designed to serve more than six dwellings. The moratorium, announced Monday morning shortly after the commissioners broke the news to the development community, is in response to efforts by owners of century-old lots in the Manchester Heights area of South Kitsap to build homes on them. But there are hundreds of similar historic lots in North Kitsap, as well. It’s an emergency action that won’t get a public hearing until Feb. 16, the commissioners said."

Suit Challenging Puget Sound Orca ESA Listing Dismissed for Lack of Standing

AP Wire - Washington | By PEGGY ANDERSEN
"A federal judge on Wednesday dismissed a lawsuit in which building and farm groups had challenged the federal listing of Puget Sound's resident killer whale population as an endangered species. U.S. District Judge Thomas S. Zilly dismissed the lawsuit, filed by the Building Industry Association of Washington and the Washington Farm Bureau, with prejudice, meaning it cannot be refiled. The BIAW and the farm bureau failed to prove they had standing in the case — that is, they failed to prove 'perceptible harm' from the listing, Zilly wrote. "

Sunday, December 17, 2006

A Personal Note

This past week I was elected to the Board of Directors of the Pacific Northwest Salmon Center.
"Our mission is to establish and conduct a research and learning center which will enhance public knowledge and appreciation for the values of Wild Salmon and related ecosystem health. The Preservation of Wild Salmon is directly linked to the preservation of other life and ecosystems. The Salmon Center will promote public knowledge and enhance appreciation for the value of Wild Salmon. The Center will facilitate a better understanding of ecosystem health through leading-edge research, interactive education, accessible information, unique displays, environmental seminars, and our annual Wild Salmon Hall of Fame celebration. Our 90 acre location is in Belfair, Washington, "where Hood Canal begins". As part of our hands on learning experiences we will be naturally treating stormwater from the Belfair Urban Growth Area, and returning 45 acres of hay fields to the orginal state of salt and freshwater marshes. Come learn with us!"

Puget Sound Partnership's Recommendations to the Governor

The Puget Sound Partnership has sent its final recommendations to Gov. Gregoire. Quoting from the Executive Summary:
"What is a healthy Puget Sound ecosystem? In developing goals for the Puget Sound, the Partnership recognized that human well-being and natural systems are intimately connected. A healthy ecosystem means that fish and shellfish are plentiful and safe to eat, air is healthy to breathe,and water and beaches are clean for swimming and fishing. Well-being means that people are able to use and enjoy the lands and waters of the Puget Sound region, tribal cultures are sustained, natural resource-dependent industries such as agriculture, tourism, and fisheries thrive, and the region is economically prosperous. In a healthy ecosystem, the rich diversity of species flourish and are supported by plentiful, productive habitat, as well as clean and abundant water."

Tuesday, December 12, 2006

Hanford Reach National Monument Comprehensive Conservation Plan

Comprehensive Conservation Plan
"The U.S. Fish and Wildlife Service is pleased to announce the release of the Hanford Reach National Monument Comprehensive Conservation Plan and Environmental Impact Statement. This is the overall plan that will guide management of the Monument for at least the next 15 years. The entire plan, or any of its components may be downloaded [by clicking link above.]"

The Executive Summary is a good place to start. Quoting from this Summary:

"The Monument was created from buffer lands that were no longer necessary for the mission of the DOE’s Hanford Site in eastern Washington. These buffer lands form a horseshoe around lands still needed by the DOE for its current missions. Being a buffer for the Hanford Site, the lands within the Monument have remained largely untouched, or at least undeveloped, for over six decades. It was this remnant of the vast shrub-steppe that once covered the interior Columbia Basin that lead to Presidential Proclamation 7319 on June 9, 2000, establishing a 195,000-acre national monument, managed by the FWS and DOE, superimposed over the outskirts of the 375,040-acre Hanford Site. The FWS administers the Monument as on overlay national wildlife refuge.

The Monument encompasses a biologically diverse landscape containing an irreplaceable natural and historic legacy. The limited development over the years has allowed for the Monument to become a haven for important and increasingly scarce objects of scientific, historic and cultural interest. It supports a broad array of newly discovered or increasingly uncommon native plants and animals. Migrating salmon, birds and hundreds of other native plant and animal species,some found nowhere else in the world, rely on its natural ecosystems. The Monument also includes 46.5 miles of the last free-flowing, non-tidal stretch of the Columbia River, the 51-mile “Hanford Reach.”

Comments are welcome. The comment period ends February 23, 2007.

Saturday, December 09, 2006

Microsoft sues the City of Quincy

Not exactly environmental law, but an interesting Public Disclosure Act case is now brewing in Quincy. Columbia Basin Herald -- By David Cole
"EPHRATA -- Internet and computer giant Microsoft Corp. hopes to block a public records request seeking design and building plans for its jumbo data center by suing the city of Quincy. The lawsuit, filed in Grant County Superior Court on Nov. 30, claims documents being sought via the state's Open Records Act contain confidential and proprietary information."

Sunday, December 03, 2006

Grant Co. PUD raises funds for improvements at Wanapum and Priest Rapids dams

Columbia Basin Herald -- By Chrystal Doucette
"COLUMBIA BASIN -- The Grant County Public Utility District is selling $253 million in bonds for improvements to two dams on the Columbia River. The PUD Board of Commissioners unanimously approved the sale of $186.4 million in bonds for the Wanapum Hydroelectric Development and $66.6 million in bonds to the Priest Rapids Hydroelectric Development Thursday. Bond Counsel for the PUD Nancy Neraas said the PUD expects to have the money in hand by Tuesday."

Saturday, December 02, 2006

Moving ahead with Yakima River basin storage feasibility study

"The Bureau of Reclamation and Washington Department of Ecology announced today [11/28/06] their decision to move forward into the feasibility phase of a storage study designed to bring more water to the Yakima River basin.

Further information, including the latest study document, Storage Study Team Technical Information and Hydrologic Analysis for Plan Formulation, is available from Reclamation at [storage study].

Meetings will be held after January 1, 2007 to explain Storage Study progress and to gather information for the NEPA and SEPA scoping process. At the end of these processes, results of the analyses will Be made available in a draft feasibility/environmental impact statement report."