In 2019, five municipal and industrial dischargers (NPDES permit holders) applied for Spokane River PCB variances. A variance modifies the designated uses and water quality criteria for a waterbody for a limited time.
2019 also saw the Washington Department of Ecology initiate a rulemaking process needed to support issuing Spokane River PCB variances.
Given the significance of this action the Gonzaga Environmental Law Clinic obtained the following reviews of the proposed rulemaking by legal, technical, and policy experts. Specifically, the Clinic considered the following Ecology rulemaking materials:
- Preliminary Draft Variance Rule Language (Draft Variance Rule)
- Preliminary Draft State Technical Support Document (Draft Technical Document)
- Preliminary Draft Environmental Impact Statement (DEIS)
- Preliminary Draft Implementation Plan (Draft Implementation Plan)
In 2020, Ecology suspended the Spokane River PCB rulemaking process due to EPA changes to the PCB water quality standard and ensuing litigation challenging the EPA adopted standard.
The Spokane River, PCBs, and Water Quality Variances: A Citizens’ Primer
Ezekiel Matthias Denison, Gonzaga University School of Law Student
An overview of the Clean Water Act and water quality standards; purpose of NPDES permits; water quality variance definition, use and conditions; how a PCB variance is being considered for the Spokane River; and how the public can participate in the variance process.
Washington Department of Ecology’s Preliminary Proposed Rulemaking for PCB Variances on the Spokane River—Issues Arising Under the State Environmental Policy Act and Clean Water Act
Bricklin and Newman LLP, Bryan Telegin and Zachary Griefen, Attorneys
Memo evaluating the legality of Ecology’s preliminary proposed rulemaking for Spokane River PCB variances under Washington State’s Environmental Policy Act (SEPA) and the federal Clean Water Act (CWA).
Comments on Washington Department of Ecology’s preliminary draft PCB variance rule and supporting documents
Water Policy Pathways LLC, Gayle Killam, Principal
A broad policy and technical review that includes: the effect of EPA’s 2015 adoption of the WQS Variance Building Tool, the precedent setting nature of the Spokane River PCB variance rulemaking and applications, use and limitations of Highest Attainable Condition and Pollution Minimization Plans, effect on meeting tribal downstream standards, effect of bypassing TMDL development, effect of providing a 20-year variance, and other technical considerations.
Downstream Tribal Water Quality Standards Limits on State Variances
Rey-Bear McLaughlin LLP, Daniel I.S.J. Rey-Bear and Timothy H. McLaughlin, Attorneys
Memo providing a legal opinion regarding limits under the Clean Water Act on a State’s authority to adopt variances from its water quality standards and EPA’s authority to disapprove such variances based on downstream Tribal water quality standards.
Assessment of the Preliminary Draft State Technical Support Document for PCB Variance on the Spokane River
Richard Horner, Environmental Engineering and Science Consultant and University of Washington Emeritus Research Associate Professor
This paper reviews the Washington Department of Ecology Preliminary Draft State Technical Support Document for PCB Variances on the Spokane River.
