Ecology's recent fine against Kaiser too late, goes too far

Guest column

Mike Ormsby - Special to The Spokesman-Review

Spokane _ T he state Department of Ecology's recent, $388,000 fine against Kaiser Aluminum could damage our community. The philosophy behind the levying of this fine has potentially negative effects on the development and retention of "living wage" jobs here.

When it announced this fine, Ecology alleged that Kaiser mismanaged the operation and maintenance of its air control system during the years 1995 to 1999.

I have had my disagreements with Kaiser (most recently on labor issues). In this case, however, the facts are on Kaiser's side and I believe the action of the Department of Ecology is not in the best interest of our community and is counterproductive to the Department's own goals. Of greatest concern is the impact that the philosophy behind this fine could have on business growth and job retention.

We all want to protect the environment. If I thought for one second that the environment was in danger, I would support Ecology. But the environment is not threatened from Kaiser.

Ecology has a thankless job and our state is better off because of the department's formation. However, when the agency goes too far and acts without a clear understanding of facts, or is just wrong, that needs to be identified.

There are some facts conveniently left out of Ecology's Sept. 21 press release announcing the fine, and omitted from its comments to The Spokesman-Review on Sept. 22.

First, after reading Ecology's release one could only conclude the state has a zero emissions policy, that a manufacturing plant is not permitted to emit anything. That is simply not the case. The reality is, state and federal regulations permit Kaiser certain emissions as a byproduct of the manufacturing process, as long as those emissions remain within a previously established emission standard. The fact is that Kaiser, while it had fluctuations in the amount of emissions during the times in question, was in substantial compliance with standards established to protect public health and safety.

Noting that there were "excess emissions" at particular points in time does not constitute a violation if a company remains below an established standard. Take fluoride for example, the emission of concern for primary aluminum operations because of fluoride's potential impact on vegetation (vegetation is more sensitive than humans to fluoride emissions). Kaiser has monitored fluorides carefully for decades and all the evidence shows that nothing harmful has been emitted when outside nationally-renowned experts evaluate vegetation adjacent to Mead.

The variabilities in emissions were tied to a set of equipment upgrades designed to help worker safety. During the upgrades, some days were better than the others, which is the nature of any process. That does not mean Kaiser was not operating in good faith. Ecology seems to be saying that if on one day you achieved the perfect, that means you always have to be perfect. That defies logic and common sense. That is not the law. If it were the law, why would a company wishing to relocate ever want to come to Spokane?

The bottom line is Kaiser operated safely within allowable standards while working steadily to improve worker safety and reduce overall emissions, which has significantly been done. There were no adverse threats to public health and safety and during the four-year period they were constantly monitored by Ecology. To punish Kaiser now for something they arguably did (or did not do) several years ago is not productive and accomplishes little.

For Ecology to now step forward and essentially say "yes, but we think you could have done better" simply is not fair when Kaiser met the applicable standards. All of us, Kaiser included, need to strive to be better. But to punish someone after the improvement has been achieved creates no incentive for the next company to attempt to do better.

Public agencies have to have credibility and public confidence. Ecology's recent action with regard to Kaiser causes me, and should cause the public, to seriously question both.

What should happen now? On one level I would encourage the individuals involved here, on both sides, to make sure they are effectively communicating and attempting to understand each other.

Even more to the point is the impression I believe this situation creates for business and those wishing to pursue economic development here. I think Ecology's actions can only serve to cause sincere people wishing to do business here real concerns as to whether they can live with the philosophy of enforcement by Ecology that this action represents. What we should ask from Ecology is fair enforcement of objective standards and fair, complete communication with the public. Such an approach will be beneficial to our community and further enhance Ecology's credibility.


Mike Ormsby is an attorney and a lifelong resident of Spokane who has been active in many community and political activities.