poisoned waters

Jay Manning

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He is director of Washington State's Department of Ecology. This is the edited transcript of an interview conducted on Sept. 3, 2008.

“The '70s were a lot about we're the good guys, we're the environmentalists; we're going to go after the polluters. And it's not really about that anymore. It's about the way we all live.”

How would you describe the state of Puget Sound today, the general ecosystem, its state of health?

I think if the Puget Sound was a patient in a hospital, it would be in serious condition, and some of the most important signals of health would be heading in the wrong direction. ...

What I'm speaking of primarily are the number of species that are in decline. Whether it's marine birds, marine mammals, various fish species, there aren't very many of them that are on a good trajectory, and there are a number of them that are on a very negative trajectory. And some of these are some of the icon species of Puget Sound -- orca whales; Puget Sound Chinook salmon, … Pacific herring stocks and smelts. Some of the very basic building-block species are not doing well, and we know some of the reasons, but we don't know all of the reasons why it's happening. ...

… Are the declines of those species a signal, a canary in the coalmine if you will, to human beings and our society?

I think they definitely are. If we were talking about some obscure species of jellyfish that had no economic value unto itself, that would be worrisome. But when the species that from an economic standpoint -- Puget Sound Chinook, the most important economic species in Puget Sound by far and a symbol of Puget Sound to most Northwesterners, to most people around the world -- when that species is in decline to the point of being listed as threatened under the Endangered Species Act, if that's not speaking to us as a society, then we're not listening. …

... What do you remember about the public mood and the public attitude [toward the environment in the 1970s]? ...

I think the environmental movement took root here in the Northwest in a way that maybe it didn't in other places, and that I think was a consequence of why so many people came here in the first place. But while Congress was passing the Clean Water Act and the Clean Air Act, the state Legislature in Olympia in 1970, '71, '72 was passing legislation that to this day is remarkable. I'm not sure we could pass it today. They were passing statutes in '70, '71, '72 that were at least as progressive as what they were doing in Washington, D.C. ...

... If you had to compare the decade of 2000 onward to the decade of 1970 onward, how would you compare the public mood and the political climate?

I think the '70s was the high-water mark for idealism and for optimism and belief that anything was possible, and this decade has been much more realistic. The easy stuff, to the extent there was ever easy stuff, that got done in the '70s. We got the big factories with their big pipes discharging into Puget Sound under control, treating their wastewater so that it wasn't harmful. ...

But in this decade, we are into an era of diffuse sources, where the sources aren't a few big pipes, but they are every car on the highway, every farm field, every person's lawn. They contribute very little individually, but taken together, they are the big, uncontrolled sources. ...

The '70s were a lot about we're the good guys, we're the environmentalists; we're going to go after the polluters. And it's not really about that anymore. It's about the way we all live. And unfortunately we are all polluters. I am; you are; all of us are, because we live in an industrialized society that puts us there. And all of us have to strive every day to make those differences. And our job now, in a lot of cases, is giving people the information and the options to change the way they impact the Puget Sound and the world around them. ...

... How much of the problem is that the pollution we have today or the disruption of the human footprint is not readily visible?

That's a huge -- I mean, think about an oil spill. Oil spills, even small ones, especially here in Puget Sound, they are such a big deal. They are huge. People go nuts over a 50-gallon oil spill because you can see it, and it's really nasty-looking. Fifty gallons doesn't sound like very much, but when you see it on the water, it is impressive how horrible it looks. And oil spills aren't invisible. They are highly visible, and they galvanize people like nothing else.

What about the invisible? What about the auto traffic? What kind of "oil spill" is there from our ordinary living by way of comparison?

... Based on actual sampling in the Puget Sound basin, we have estimated that the volume of oil that is carried into Puget Sound by stormwater runoff is equal to the oil spill in Prince William Sound, the Exxon Valdez spill. Every two years the stormwater in Puget Sound carries that volume of oil into Puget Sound. ...

When you say "brought to the Puget Sound," you mean runoff from roads and cars?

Rain comes down, hits the road, starts moving sideways. It picks up whatever is on that road, and there is a lot of oil and lot of grease on every single roadway, on every single parking lot, every driveway. And as those molecules of water move across the pavement, they pick that oil up. … That water runs into a drainage ditch, into a small tributary, into a larger tributary, into Puget Sound. ...

We have seen video of underwater stormwater pipes during a storm -- scuba divers took the video -- and it's anything but invisible from underwater. It's incredibly nasty-looking, and if people could see that, they would know the problem that stormwater presents. But it's underwater; it's submerged; it's hidden. ...

It is a huge problem, but how you convey that to people and create a sense of urgency is a big challenge for those of us in the environmental business these days.

… You said the Washington state Legislature had passed a number of acts in the early '70s that were trailblazing in terms of the state being ahead of other states, and just parenthetically [you said,] "I'm not sure we could pass them today." Has the political environment changed so much that protecting the ecosystem is no longer as salient a priority with the public as it was 30 or 40 years ago, or is it this problem of we don't perceive the problem? ...

... It's very much a pendulum swinging back and forth. In the early '70s maybe was the highest swing of the pendulum in favor of environmental protection, and there has been in Washington state and in Congress this continuous act/react, act/react as the pendulum swings back and forth. ...

The reason I said I'm not sure we could pass a couple of these statutes we could pass in the '70s is, regardless of where the pendulum is, the Legislature and the executive branch and the citizenry and the regulated community are a lot smarter about ... what's really possible. There wasn't much of a sense of that back in the '70s. Now some hard questions will be asked about cost, about incrementability, not only by the regulated community but by us. ...

One of the signal pieces of legislation in American environmental history is the Superfund and the idea of cleaning up a big, bad industrial site. We're taking a look at Superfund down here on the Duwamish River, five miles of a river just jam-packed with industry. ... Here we are eight years after the lower Duwamish River was declared a Superfund site, and the big cleanup hasn't begun. Why?

It's a very fair question, but let's think about the challenge here in front of us. First of all, the big cleanup that I presume you are referring to -- the cleanup of sediments in the river and in the slips around the river -- that you don't do that until you control the sources that are contaminating the sediments. Otherwise you are going to clean it up again and again and again. …

Just the industrial sources around West Seattle and the Georgetown area and the area right around there are probably 10,000 sources just there. They range from the big cement plants and the big auto crushers and the various big industrial facilities to the little -- each and every residential lot, because probably those residential lots are using fertilizers and some pesticides around their property. ... So, you know, 10,000 [of] those are the big sources. There's probably literally a million smaller ones. ...

Figuring out who are the sources and how do you get them to clean up their contribution, it's significantly difficult. Then you get into -- I presume you're going to ask me about Slip 4, and that's a great example of the technological challenge, which really adds to the difficulty here.

What is the nut of the problem at Slip 4?

Slip 4 is a docking berth in the Duwamish, and it has a variety of sources, property surrounding it, that drain into it. These are not industrial pipelines; this is stormwater. It rains a lot in Western Washington. That water has to go somewhere. It runs across the ground and into drains and pipes and ultimately into Slip 4.

PCBs are the big problem contaminant. There are other problem contaminants, but PCB is the big one, and figuring out where are these PCBs coming from into Slip 4 is a formidable technological challenge. You have various parties who, under the Superfund, are jointly and severally and strictly liable for the cost of cleanup, which means you contribute a molecule, you are liable for the whole shooting match. Whether you did anything wrong or not doesn't matter. It's strict liability: You contribute, you pay.

So these folks, who are not stupid, are busy trying to prove that it's somebody other than them that is --

Pointing the finger at everybody else.

That's right. And they have lots of fertile hydrogeologic and geologic and chemical arguments to make, and they bring sophisticated people in to make those arguments. And they are trying to prove probably not that they have no liability, because that's pretty hard to do, but proving that they have very little compared to their neighbor. That's what it's about, and it's about money. ...

This is going to cost millions to clean up Slip 4, maybe tens of millions, and owning 90 percent of that liability is not a place you want to be if you're in down around Slip 4. So you're going to spend some money to try to put the best face on it possible. ...

Now, I will say this in defense of Superfund: It's the most powerful statutory program we have, and it has worked wonders. It gets maligned all the time because things take a long time. These are sites that took 100 years to make, and we're cleaning them up in less than a decade in most cases. Some of them are huge and tremendously complicated, and without the power of Superfund, we couldn't clean them up. So I'm going to sit here and staunchly defend Superfund and its state counterpart, because we have done amazing things with it. Could it be better? Heck, yes.

... Why are PCBs such a worry?

PCBs are highly toxic and are a carcinogen. They were banned from all use in the United States in 1978 by EPA [Environmental Protection Agency], and yet we continue to find them in just about every place we look. They are incredibly persistent, which means chemically they are very stable. They don't break down. It takes decades if not centuries for PCBs to break down. They are toxic, and they --

They build up.

They build up in organisms, in you and me, in orcas in Puget Sound, Chinook. ... The PCBs come with the fish or whatever it is you eat. There are trace levels of PCBs in milk you drink, and it gets into your system. And your liver and your kidneys do a really good job of filtering them out and putting them right into soft tissues in your body, and that's where it's going to reside for a good long time, and it's probably not going to do you any good there.

We don't get rid of them.

We get rid of them extremely slowly. ...

[What were they used for?]

As I understand it, they were industrial chemicals that -- the stability, that persistence that is such a problem now, is what made them so widely used and beneficial in a whole variety of industrial processes. For one, they would fill capacitors and transformers, the boxes at the top of the telephone poles or the power poles where power lines come in. ... Those build up heat, and those will burn if the heat is not controlled. So they fill them with oil, but the oil will break down over time, so they fill that oil with PCBs because the PCBs were so stable they could absorb that heat for decades and sit up there and just work away with no problems, except they leaked. And little dribs and drabs of oil would drop out of those transformers, out of those capacitors, onto the ground. …

Let me get one thing straight here: So the Superfund site gets declared because NOAA [National Oceanic and Atmospheric Administration] or some scientists find PCBs and other bad stuff in the river sediment. But then testing starts to go on as to what's still upland, and there are still PCBs coming into the water. Is that right?

Right, right.

In other words, we are talking about legacy pollutants here created by industrial processes that go back 20 or 30 years. And yet the flow of contaminants, of PCBs, is continuing even today, or at least up until a few months ago.

That's right, that's right. Now, it was declared a Superfund site eight years ago, and we started working on this site in earnest about four years ago. ... Our usual approach to a site like this is to go to the parties and say: "It's your site; you are responsible for it. You need to do the following work. You need to investigate the site and clean it up." ... Usually they can get their act together and cooperate and work together, or we just work with one, and one party does it.

In this case, with two properties adjoining, both are sources; we can't really pick one. You've got to work with them both. Since they have been unable to figure out a way to work together, we have said: "OK, then we'll do it. We'll do the work, and we're going to bill you." And they've agreed. They will pay our costs. ...

So you are able to step in and take the lead in investigating and then pushing the cleanup on this site because you've got the power and the money to do it?

That's right: We have the statutory authority to do it. And because the account that supports this program is very healthy right now, we have the resources. We can actually pay contractors to go out and do this work for us, not for them. …

What is stormwater runoff, and why is it such a big problem?

Western Washington is a rainy place. ... Everywhere that rain falls and hits the ground, it's going to pick up something. It might be nothing more hazardous than dirt, or it might be PCBs; it might be some toxic pesticide. And it will travel along with the water into the nearest drainage ditch, into the nearest swale, into a creek, into a river and ultimately into Puget Sound. Puget Sound is the bathtub into which all these different places flow, and whatever pollutants that water picks up on its journey to Puget Sound it's going to deposit in Puget Sound.

And so we have worked for years on factories with big discharges of wastewater or sewage treatment plants where all of our domestic sewage is collected and treated. …

This runoff is basically uncontrolled, or it has been until about seven years ago in this state. As we are in lots of cases, we are sort of the front edge of states dealing with stormwater. But it is absolutely accurate to say that it's a program in its infancy. We are just starting to crawl. We are a long ways from walking. ... And the solutions are hard to come by. There is not a lot of technical solutions; there's not a lot of money to be spent here. …

The King County Council, representing the Seattle area and the uplands beyond Seattle, passed a critical areas ordinance that says in order to preserve the watershed, to preserve the forests, to preserve the Puget Sound, you can only clear up to 35 percent of your property. Was that smart legislation? Because it caused one heck of an uproar.

This is where land use and the quality of the Puget Sound ecosystem intersect in a big way, because how the land is developed, how intensely, will have a direct impact on the quality of stormwater. You take down a forested area and replace it with pavement or a rooftop, and instead of almost all of the water slowly moving through the forest canopy and down to the ground and infiltrating down into groundwater where it will move slowly, it will be cool; it will appear in small streams and rivers exactly when you need it in August and September, cool and clean.

You take that forest down and you replace it with a parking lot, that water, the day it lands, within minutes of it hitting the ground, it's going to be gone.

And that's bad.

It's bad for two reasons. It never makes it down into the groundwater, so it doesn't show up cool and clear in the streams when salmon need it, when people need it in the late summer, early fall. And more importunately, when it comes off, it comes off in a hurry in a big volume. And the damage -- environmental and otherwise -- from that kind of flooding, those high, flashy flows that blast habitat out of these streams --

You get erosion.

You get erosion.

Wipeout of streams.

Habitat damage; you actually get property damage to downstream property owners. The damage from higher volumes of stormwater that come when you take down a forest and put down impervious surface is just as big an issue, maybe a bigger issue than the pollutants that the water picks up in its journey across the parking lot or across the rooftop.

So King County said: "Well, then we're going to limit how much vegetation you're going to take down on any individual lot. We're going to say you have to maintain 65 percent of the property in vegetation." The science absolutely supports that as the right thing to do from a stormwater management [perspective]. …

Was it smart is your question. From an environmental perspective, it was absolutely based on science. From a political perspective, the reaction I think was underestimated, shall we say, by the county. There was a tremendous adverse political reaction to that. ...

Do you think it was a good ordinance?

I think from a saving-Puget Sound perspective it was absolutely the right thing to do. I think if you don't take into account the political reaction to ordinances like that when you pass them, the durability, the longevity of that kind of ordinance may be suspect.

So the politics weren't terribly well handled even if the science was right.

I want to be clear here. I'm not second-guessing the council or [King County Executive] Ron Sims. It took a lot of guts for them to do what they did. They knew that reaction was coming, and they withstood it. We are going to have to make decisions like that, sometimes unpopular ones, to save Puget Sound. That's going to be the acid test. Can we handle that? Can we, the state government, the local governments that are going to have to make the hard decisions, these sometimes unpopular ones, are we going to step up and do that? We're prepared to do that. The governor, I think, is prepared to do that. But as you know, as an elected official, as an appointed official, there is only so much of that you can do before people start thinking, I am tired of that; I am tired of those kinds of impositions, those kinds of restrictions. So you just have to be smart and careful and reach out, reach far, but don't be stupid.

There are two different publics. One is the property owners who are specifically riled up. They are saying, "You have taken value away from my land when you tell me 65 percent of it I can't develop." What's your answer to that?

I think that private property rights are an important factor, a constitutionally required factor for government to consider as it is thinking about, what do we really need to do to save Puget Sound? We have to be sensitive to that from both a legal perspective, a political perspective.

In that case, I am unaware of any successful claims that there was an actual constitutional taking.

You mean they may make the complaint in principle, but nobody has actually come forward and said, "I have lost $85,000, $200,000."

I am unaware [that] any actual lawsuits alleging a taking have been filed, and I am certainly unaware of any of them having been successful. It's not unusual when any new restriction is put in place by a local government or by a state agency to have some part of the regulated or affected community say, "That is a taking." ...

What we have to be sensitive to is, is it really? Is it really a constitutional taking? Then we can't do it, and we shouldn't do it. In my understanding of the law here, if you have good, valuable economic use of your property, then you don't have takings. In this case, most of these properties are residential, and there is plenty of room with 35 percent of the land to have a house, a garage, a driveway, a stable, and still have a nice forested lot around you. It doesn't sound like a taking to me, doesn't sound horrific to me. ...

... Does the public in Washington state generally accept the idea that the county government shouldn't be stepping [in] and imposing the regulations? Are people generally accepting of this and then say, "Well, there might be special cases where we need to make exceptions"?

I think the latter is more accurate. We have had two ballot measures in Washington in the last 10 years that would have greatly restricted government and its ability to have any impact on public property, would have required compensation for any restriction on value or on use. Both were soundly defeated by the voters. ...

... Where do we go as a society here? ... Do we have the knowledge and the will and the public support going forward to tackle these much more complicated problems?

We have lots of conversations about this big question that you have just posed, and climate change is keying up these questions even more, in a more concentrated way than Puget Sound has. Can you really restore an ecosystem when we are going to add another 1.5 million people to this basin in the next 20 years and another 1.5 million in the 20 years after that?

I think it's absolutely incontrovertible that we cannot continue to add another 1.5 million people to this basin every 20 years and restore Puget Sound. Nobody could argue different than that. We can grow more. We can grow smart. We can use low-impact development. We can, from a climate change perspective, grow up and not out. I'd love to see a situation where we had a problem with forest sprawl and farm sprawl crowding out the suburbs. ...

But it isn't just Puget Sound. That's the Great Lakes. That's the Chesapeake Bay. That's the Gulf of Mexico. The evidence of population movement in this country is that more and more people are moving closer and closer to large bodies of water. And you're saying we can't continue to do that.

Not endlessly. I'm not saying that we have passed that tipping point. I don't think we have. I think we have some room to continue to grow, and the more we grow smart, and we use low-impact development techniques, and we grow up and not out, the more we maintain our forests and our farms, the better our chances, the longer we will last. ...

But I say this: Not many people talk about this -- and I say this at great risk, because this is going to be on national television, and when you talk about limits to growth, you are commonly branded as a lunatic and thrown out of the establishment. But somebody has to start talking about this. It's not just here. You just ticked off the Great Lakes and the Everglades and San Francisco Bay and the Gulf of Mexico.

I think we have to start having this conversation, and it can't be taboo anymore to raise this question. And for one, I'm willing to talk about it. ...

Let's talk specifically about South Park and talk about the Malarkey Asphalt site there, where PCBs were found. ... [What are your thoughts] when you see the role of people like [Duwamish River Cleanup Coalition Director] B.J. Cummings and citizens of South Park as having been in the way this problem is working itself out?

I don't know the specifics about Malarkey, but I know enough about it to say that in the absence of a B.J. Cummings or somebody like her, who is out there on the water, knowledgeable, aware of what is happening and poking and prodding and asking us the hard questions, we would not be making the progress that we're making. ...

posted april 21, 2009

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