Landfills, Agency Negligence & Lawyer Creek Watershed
Lawyer Creek, almost wholly within the Nez Perce Tribal Reservation boundary, flows south and east of the Clearwater River until both join just east of Kamiah in north-central Idaho. This major tributary is home to endangered Snake River steelhead, recently de-listed bald eagles, and yellow-billed cuckoos – neotropical, migrant songbirds who are rare in the state and an Idaho Fish and Game ‘Species of Greatest Conservation Need.’ The drainage also constitutes some of the originally proposed critical habitat for the federally protected bull trout. Like all lands and waterways within the jurisdiction of the Nez Perce Treaty of 1855, the conditions of Lawyer Creek must not impede upon the ‘usual and accustomed’ rights of tribal members to hunt, fish, and gather in these places. But in 2002, the federal Environmental Protection Agency (EPA) placed the creek on the Impaired Water 303(d) list from its source to mouth, for not supporting cold water biota and primary contact recreation. A waste disposal company headquartered in Kamiah, Idaho, illegally operates a Tier 1 landfill, a Tier 2 landfill, and a Tier 2 waste transfer station, all on Lawyer Creek, and refuses to abide by environmental laws and guidelines. Negligent Idaho departments of Environmental Quality (DEQ) and Public Health and an EPA hesitant to enforce environmental standards in Indian Country also currently threaten this drainage.
Public Concerns Not Addressed
For the last four years, Nez Perce tribal member Ken Jones has worked tirelessly out of his Kamiah area home and has spent a considerable amount of his own funds to address problems imposed by these three illegal facilities. Jones was born in Culdesac, Idaho, in 1936 and has resided in the area most of his life. When he retired from his Indian Health Service position with the U.S. Public Health Service, he did not expect that he would be busy convincing environmental and human health agencies to do their jobs. On November 15, 2007, the Clearwater Progress newspaper published a notice soliciting public comments on the waste disposal company’s siting application for a waste transfer station directly adjacent to their Tier 1 landfill and upstream of Kamiah. Jones and several citizens voiced their concerns over the location and operation of the site, false information in previous applications, and lax regulatory enforcement. The EPA and Idaho DEQ have not yet responded to their written comments, although Gayle Westoff, the Lewiston DEQ solid waste inspector, approved the siting application on January 17, 2008.
This negligent water law enforcement and questionable company accountability is nothing new: the company first applied for a permit to construct the transfer station in 1993. In 2004, over 80 local residents petitioned the Idaho DEQ to prevent the company from constructing the Tier 2 landfill. But Hudson Mann of the DEQ dismissed their concerns because the sanitation service stated that the landfill would only contain leaves and limbs. Since then, the landfill has disposed large amounts of illegal waste under leaves and limbs, including railroad ties, boat engines, automobile transmissions, and household waste.
Transfer Station within 100-Year Floodplain
On January 28, 2008, Sam Penney, Chair of the Nez Perce Tribal Executive Committee, sent a four-page letter to Al Latourette in the EPA Tribal Program Office of Air, Waste, and Toxics, describing ten major problems associated with the new transfer station. The letter states that the facility’s “location within the 100-year floodplain of Lawyer Creek, as delineated by the U.S. Army Corps of Engineers in 1999 documents, [suggests] that floodwaters will inundate the majority of the transfer station.” Penney also warns that its “present location and operation…[are] very probably degrading the groundwater and surface water quality of Lawyer Creek, contrary to Idaho Codes IDAPA 58.01.02.” 
Falsification of Facts
The waste disposal company’s plan of operations for the transfer station, dated October 7, 2004, falsely claims that the facility is not in a floodplain and that neither critical habitat for endangered species nor high groundwater exists on the site. Company processes promoting approval of their Tier 2 landfill application exhibited the same pattern of duplicity. In both their newspaper notice and Idaho DEQ application, the sanitation service submitted false legal descriptions of the site and ignored the presence and flow of groundwater. A professional hydrologist visited the site in June 2005 before construction and confirmed that the landfill leachate would discharge directly into Seven Mile Creek at a single point source – findings completely overlooked by the company, the DEQ, and the EPA.
Diesel Spills and Other Cover-Ups
The waste disposal company has since constructed a pond and dry well within their Tier 2 landfill cell and a French drain outside the cell. They have regularly deposited material not allowed in such landfills, including motors and the 80-gallon, diesel fuel spill exposed by Shane Bytheway, a company employee during November 2007. In his affidavit to Lewis County, he admitted that the company owner and operator ordered covering the spill with waste and silence because reporting it “would be very expensive and [he] didn’t need the EPA breathing down his neck anymore [than] they already were.” In response, a December 10, 2007, company letter assured the Idaho DEQ that the spill had been cleaned up. Gayle Westoff, of the DEQ in Lewiston, visited the site three months later and found no evidence of the spill. The Idaho Department of Public Health has no records of either the cleanup or Westoff’s visit, despite assurances by Westoff to the contrary. The sanitation service supposedly hauled the contaminated material to Missoula, Montana, for proper disposal, although no agency can produce documents to support this claim.
Tier 1 Landfill Exceeds Size and Materials Limits
The approval process for the company’s Tier 1 landfill and closed bark mill, downstream of their Tier 2 landfill, demonstrated similar patterns of negligence by the company and the agencies charged with protecting Nez Perce Reservation water. The waste disposal company falsely claimed that an engineer designed and approved the facility. Construction then proceeded without compliance with engineering standards and Idaho state codes. For instance, Tier 1 landfills cannot exceed 2000 cubic yards of inert material or 600 cubic yards of leachate-producing material. Inert material, such as brick and concrete, poses fewer significant threats to watershed and groundwater quality and thus requires less stringent regulations than leachate-creating material, including but not limited to soil, grass, leaves, limbs, and boiler ash. The Tier 1 landfill not only exceeds its legal size limit, it contains leachate-producing materials. Most dangerous among these wastes in both the Tier 1 and Tier 2 landfills, boiler ash can contain heavy metals like arsenic, lead, and zinc as well as polycyclic aromatic hydrocarbons, the byproducts of incomplete combustion. Agencies recommend that boiler ash samples should be tested prior to disposal. If the resulting leachate exceeds threshold values for toxic constituents, the material should be classified as toxic waste. Gayle Westoff told Ken Jones that test results of this material in the two landfills had deemed it safe, but that no test copies were available due to limited DEQ file storage capacity.
Lawyer Creek Needs Immediate, Active, Water Law Enforcement
The EPA and the Idaho DEQ have the responsibility to protect impaired water bodies like Lawyer Creek as required by federal law and implicit in Nez Perce Treaty rights. These agencies should immediately and indefinitely close these Tier 1 and Tier 2 landfills and Tier 2 transfer station until every associated violation has been addressed and accounted for. Moreover, they should devise plans to prevent similar acts of negligence from occurring in the future. The threats to the natural resources and waters in the Nez Perce Reservation and downstream are too great to warrant any more inaction. The infractions that eased the development of these three sites should have signaled the agencies that something was amiss. For example, the engineer who used misleading information to acquire approval for the Tier 2 landfill was the same person who designed the non-functional, pressure sewer system for Valley View Village and the Nez Perce Tribe. Because the DEQ readily accepts engineering plans without proper review from engineers only required to have state licenses, the department bears much of the responsibility for these contaminating facilities. Ken Jones reminds parties involved in Lawyer Creek watershed health that he does not claim to speak for tribal leaders or the Nez Perce Tribe. “I firmly believe this matter violates my treaty rights as well as state and federal laws,” says Jones. For more information about these environmental problems, please contact
Ken Jones of Kamiah, Idaho, at 208-935-2117, or Will Boyd of Friends of the Clearwater at 208-882-9755.