by John E. Dannenberg
Toxic and hazardous waste from Walla Walla State Penitentiary (WSP) continues today to pollute City of Walla Walla air and public water resources, notwithstanding fourteen years of administrative litigation stemming from citations and fines levied by the Washington State Department of Ecology (DOE) against the Department of Corrections (WADOC).
For 117 years, the Washington State Penitentiary in Walla Walla has been a dumping ground for human "toxic waste" in the form of convicted felons. But it is WSP's irresponsible chemical toxic waste that takes center stage today. Turning a blind eye to the DOE, the WADOC quietly retained its century-old practice of ignoring long term ecological effects that its prison waste byproducts might be having upon the seemingly disconnected environment outside the walls and razor wire. Today, however, WSP's 560 acre tract is no longer an island immune from public scrutiny. The following tortured bureaucratic record speaks for itself.
On August 1, 1990, DOE inspected and cited WSP for eight "dangerous waste violations," including failures to properly designate waste and waste containers, properly manage waste discharges, ship hazardous waste off-site within 90 days, develop a waste inspection schedule, develop/follow a personnel waste training plan and develop a contingency plan. Specifically noted improperly contained hazardous wastes included naptha, antifreeze, perchloroethylene, lacquer thinner, methylene chloride, and photochemicals. Accordingly, on February 11, 1991, DOE entered administrative compliance Order No. DE 90-E729, directing WSP Safety Education Coordinator Robert W. Johnson to remedy the violations.
WSP's response was an April 19, 1991 appeal to the Pollution Controls Hearing Board (PCHB). The irony of what would become an unending bureaucratic legal battle emerged at that time. In this litigation between two state agencies, Department of Corrections v. Department of Ecology, PCHB No. 91-76, the Attorney General of Washington State would represent both sides. Even more ironic, at that time the Department of Ecology was headed by Mary Riveland. Her husband Chase Riveland, headed the Department of Corrections! WADOC obeyed a few of the orders but asked to be excused or exempted from others as unreasonable or arbitrary. On November 19, 1991, two assistant attorneys general signed a stipulated order of dismissal of PCHB 91-76, agreeing that six items had been complied with, but that training/contingency plans would not be implemented unless WADOC generated over 2,200 pounds of hazardous waste per month.
In March, 1992, DOE notified WSP that it had received an anonymous complaint detailing improper disposal of toxic wastes into the storm drain as well as burial of paint thinners, oil, human waste, hospital waste and medical needles in a 1987-closed prison landfill (Sudbury). Additional information from the complainant specified a major spill of diesel fuel during removal of a 1,000 gallon underground storage tank. A DOE site inspection revealed over a dozen livestock carcasses dumped next to a pond and wetlands containing brackish still water. The pond is filled by effluent from the prison dairy.
On November 8, 1994, DOE again conducted a compliance inspection at WSP. The report noted that as a Large Quantity Generator (LQG) of hazardous waste, WSP should have been but was not in compliance with a long list of administrative regulations. Overall, 7,824 lbs. (978 gallons) of on-site hazardous chemicals were reported. On May 30, 1995, WSP Safety Coordinator Johnson stipulated to DOE Consent Order No. DE 95HS-E93 1 wherein WSP would cease and desist from noted illegal practices of not keeping waste containers closed, not labeling them, and dumping photo-chemicals into the drain. WSP would then provide emergency equipment at waste accumulation sites. Within 30 days, WSP would also submit solid wastes for toxicity analysis, as well as submit specified inspection plans, a training plan and a contingency plan.
Following a July 24, 1995 DOE rating of WSP as a hazard level "3" [on a scale of 5], WSP submitted to DOE its corrective action report on September 7. However, DOE Section Manager James Maim found it seriously deficient, and on November 2, gave WSP 15 days to comply or face enforcement. On November 16, WSP' s Safety Officer Johnson faxed a response indicating a continuing inability to comply, followed on December 4 by results of requested tests and modified plans. At DOE's insistence, more compliance was completed by Johnson on December 11, 1995.
Based upon groundwater contamination reported in October, 1993 at DOE monitoring wells at the nearby Sudbury Road Landfill, on April 25, 1995, DOE reopened the abandoned WSP landfill question by conducting a site survey. It found highly toxic tetrachloroethylene and trichloroethylene in both air and water samples taken downgradient from the WSP former landfill, affecting 17 groundwater wells serving 10,807 people within 2 miles.
In October, 1994, the concern turned to air pollution, when DOE published a request for voluntary toxic emission caps from WSP. The concern was to limit air pollution from WSP's natural gas and wood-pellet-fired boilers to 100 tons per year. Based upon DOE Order No. DE 95 AQ-E 110, a report on combustion byproducts was required of WSP. In February, 1996, after two kitchen employees had suffered fatal heart attacks, a staff complaint was investigated by DOE concerning a possible health hazard from the seemingly excessive use of 150 lbs./month of CFC-based refrigerant gas [a chemical which destroys Earth's ozone layer and causes global warming]. The report from DE 95 AQ-E 110 was received at DOE in January, 1998. DOE concluded in April, 1998 that WSP was in substantial compliance with established air pollution limits.
In January, 2000, noting the history of the removal from service of two local Walla Walla area groundwater wells in 1990 due to carbon tetrachloride contamination, DOE reassessed WSP's past known contamination in the Sudbury Landfill area. After further evaluation of data, DOE concluded on August 8, 2000 that contamination seemed controlled and that no further action would be required.
DOE hydrogeologist Phil Leinart generated a preliminary assessment report on WSP in October, 2000 "because the institution had an extensive record of problematic waste management practices that include facility operation and maintenance activities, inmate work programs and a former landfill." The report concluded that Sudbury was the likely source of excessive Nitrate and Total Dissolved Solids in nearby test wells, but that volatile organic compound (VOC) pollution [specifically, the known carcinogens tetrachloroethene (PCE), trichloroethylene (TCE), trichlorofluoromethane and chloroform] came directly from the WSP prison. However, because the detected contaminants were only in surface aquifers, no human populations were thought to be at risk from the normally deeper drinking well water.
A January 9, 2001 DOE report noted the history of toxic waste stream material at WSP. This report showed that such waste at WSP declined from a high of 23,261 lbs. in 1993 to a low of 5,084 lbs. in 1999. Nonetheless, an 11 page February 2, 2001 photo log of almost 50 continuing violations at WSP documented six year old toluene drums, improperly stored paint waste, an open caustic dip tank, abandoned photochemical containers, numerous unlabeled solvent drums, abandoned cartons of aqueous ammonia, and suspected asbestos-based waste. As a result of the above compliance report, DOE prepared Order No. 01HWTRER-2118 on March 30, 2001, demanding WSP come into compliance in nine specified areas, requiring corrective action in 7 to 90 days.
On July 11, 2002, a new battlefront opened when City of Walla Walla Utility Engineer Frank Nicholson contacted DOE's Scott Mallery to complain of wildly excessive heavy metal discharges from WSP into city sewers. Lead discharge averaged three times the permitted value; zinc discharge (from the auto shop) averaged four times the permitted level; copper (from the metal plant) averaged 40 times the permitted level; and (from the prison hospital) mercury [cumulative poison affecting the brain and central nervous system] was an eye-popping 100 times the permitted level.
As a result, Mallery led a DOE site inspection of WSP on July 17, 2002 noting haphazardously strewn sewer pipe remnants, leaking transformers, hazardous waste in unmarked barrels, and asbestos steam pipe. The report denoted a "basket area" of storm sewer drainage that collected effluent from the laundry, two metal plants, the food service area, the hospital and the boilers. WSP's "grade" on this inspection was "marginal."
However, follow-up inspections occurred on July 19 and July 31, 2002. These resulted in yet another "Compliance Problems" report (replete with photos of the offending toxic sources) noting multiple violations of nine DOE regulations.
On August 29, 2002 a wastewater sample (taken at the base of the WSP water tower) showed the effluent stream had metal contamination that was according to Utility Engineer Nicholson "so high that [they] will take an additional grab sample in the near future to validate the results. The metals results were the highest levels ever recorded. The high metals results are unacceptable. The City of Walla Walla requests that the Department of Ecology regulate the Penitentiary as a significant user and have them obtain a State Discharge Permit." Further testing of the tanks of WSP septic haulers revealed levels of metal contamination that were so high as to be "hard to believe."
Results of the July 24, 2002, 24 hour composite retest of the WSP effluent showed three times the July 11 measure of excessive copper contamination, 13 times the excessive lead measurement, 15 times the earlier zinc measurement, and 2 times the prior sky-high mercury contamination level. Test results on the septic haulers taken July 31, 2002 were another 15 times greater than that of the July 24 results for copper and for mercury, and nine times greater for zinc. Yet, this record was surpassed only a few days later on August 5, 2002, with measurements 50% higher again than the week before for copper (4,800 µ-grams/liter), 2.5 times higher for lead (340 g-grams/liter) and almost four times higher for zinc (22,000 p.- grams/liter); only mercury remained at the week-earlier astronomical levels (120 g-grams/liter). [The DOE-recommended limit for mercury is 0.015 g-grams/liter.]
Not helping matters was that on August 5, 2002, the freezers failed at WSP, Releasing 85 pounds of CFCs (R-502 refrigerant) into the air. DOE laid down the law that day to WSP Superintendent Richard Morgan with a stern warning letter, sent by certified mail, regarding defects in WSP's contributions to air pollution demanding an action plan by September 6, 2002. And in a confidential internal DOE memo on October 14, 2002, acting section manager Emily Celto Reccommended enforcement action and fines against WSP totaling $54,000. Celto noted the unremitting record of WSP's violations of Dangerous Waste Regulations: nine in 1990, eight in 1994, nine in 2001 and nine in 2002. Worse yet, the specific rules violations found in 2002 were all "recidivist" violations from the prior 12 years of inspections.
Celto's memo attributed the source of the continuing non-compliance to prison bureaucracy. WSP's authority is divided into three departments Environmental, Safety and Custody. Thus, an employee in one department cannot tell an employee in another department what to do. Of twenty draft field maintenance orders put forth by Environmental staff, only two had ever been adopted into Custody's way of doing business. But even those could not be enforced by the orders' originators. Celto demanded change at the WADOC level, and put teeth into it on October 25, 2002 by issuing a $54,000 Penalty No. DE02HWTRER-4963 to WSP Superintendent Morgan, accompanied by Order No. DE02HWTRER-4962 demanding compliance with the nine Dangerous Waste Regulations noted from their August inspections. Compliance was required "immediately" for five items : label all dangerous waste containers; develop a written plan for general facility inspections; discontinue discharging dangerous waste; label containers storing spent antifreeze; label containers holding used oil.
Compliance was required within seven (calendar) days for instituting a weekly inspection schedule and for designating all solid waste and/or submitting it to an outside laboratory for analysis. Finally, compliance was required within 15 days to develop a contingency plan, and within 45 days for development of a dangerous waste training program.
WSP reacted by appealing the Penalty to the Pollution Control Hearings Board. See: Washington State Department of Corrections v. Washington State Department of Ecology, PCHB Case No. 02-214. A pre-hearing conference on December 18, 2002, attended by assistant state attorneys general representing both WSP and DOE, resulted in a December 19 pre-hearing order. The order set a secondary hearing for March 18, 2003 and a primary hearing on July 17, 2003, unless settled by the parties by February 18, 2003. The case eventually settled on undisclosed terms.
But appealing the fine only served to underscore WADOC's feckless mentality. Instead of fixing persistent toxic waste violations that have done untold damage to their community's environment and no doubt engendering millions of dollars in future waste clean-up costs; WADOC is consumed with spending even more taxpayer money trying to fight a justly deserved fine for fourteen years of thumbing its nose at the Washington State Administrative Code and its appointed DOE enforcers. It would seem that in lieu of bureaucratically protecting its legacy of criminally pumping irresponsible excesses of volatile organic compounds, CFCs, and heavy metals into the City of Walla Walla's environment, WSP should instead reform itself by getting the lead out.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login