Washington State Office of Attorney General Bob Ferguson
Yesterday the Washington Attorney General filed 36 gross misdemeanor charges against Electron Hydro, LLC and its Chief Operating Officer, Thom A. Fischer. Electron Hydro operates a hydroelectric dam on the Puyallup River. Each of the 36 charges, filed in Pierce County Superior Court, are against both Fischer and the business. The charges include violations of the state’s Water Pollution Control Act, Shoreline Management Act and Pierce County Code.
If convicted, Fischer faces a maximum penalty of 90 or 364 days in jail for each count, depending upon the charge. Additionally, Fischer faces fines of up to $1,000, $5,000, or $10,000 for each count, depending upon the charge. As a business entity, Electron Hydro faces a maximum penalty of $250,000 for each of the 36 counts.
The criminal charges stem from a construction project updating the Electron Dam during the summer of 2020. Electron Hydro, under the supervision of Thom Fischer, placed artificial field turf containing crumb rubber onto the riverbed and dam as part of a temporary bypass channel during the construction. By its own admission, Electron Hydro estimated it placed approximately 2,400 square yards of turf material that contained 16 to 18 cubic yards of crumb rubber in the bypass channel. The company then covered the field turf with a plastic liner and diverted the Puyallup River over it. The company did not receive permission to use the field turf or crumb rubber on the project.
Days later, the liner ruptured and artificial turf and crumb rubber were discharged into the Puyallup River. In early August 2020, the company received a stop work order from Pierce County and the Army Corps of Engineers. The river remained diverted until the end of October 2020.
The court filing notes University of Washington-Tacoma Center for Urban Waters researchers tested samples of recovered field turf and crumb rubber and discovered that it contained chemicals found in tires, including one that is “extremely toxic” to coho salmon.
Assistant Attorneys General Brad Roberts and Robert Grant will handle the case for the Attorney General’s Office.
Below, the affidavit of probable cause filed with the court is included in its entirety. It contains pictures of the Electron Dam and the construction.
The information contained in the affidavit of probable cause are only allegations. A person is presumed innocent unless and until he or she is proven guilty beyond a reasonable doubt in a court of law.
The Attorney General’s Environmental Protection Division is prosecuting the case. The Attorney General’s Office filed these charges in Pierce County Superior Court. The Attorney General’s Office does not have authority to initiate criminal investigations, unless it receives and accepts a referral from a county prosecutor or the governor. The Attorney General’s Office accepted a referral from the Pierce County Prosecuting Attorney in this case.
The Rules of Professional Conduct govern what a prosecutor in a criminal case may say publicly before trial. As the prosecutor in this criminal matter, the Attorney General’s Office and its representatives are prohibited from making public statements beyond the narrow scope allowed by the Rules of Professional Conduct. The office will make every effort to be transparent with the public, while upholding its responsibilities as a criminal prosecutor.
AFFIDAVIT OF PROBABLE CAUSE
The undersigned certifies that I am an Assistant Attorney General for the State of Washington and make this affidavit in that capacity; that criminal charges have been filed against the above-named defendants in this cause, and I believe probable cause exists for the arrest of the defendants on the charges because of the following facts and circumstances. This information is not based upon any independent or personal knowledge of these events, unless specifically noted.
The following is based on reports, statements, and items provided by law enforcement, investigators, regulatory agencies, experts, and public information and not on personal knowledge. The purpose of this affidavit is to establish probable cause for the crime charged, not to summarize the entire case.
The Electron Dam is a hydroelectric power generating plant located in the Puyallup River approximately twenty-three miles southeast of Tacoma, in Pierce County, Washington. The Puyallup River is home to nine salmonid species: including chinook salmon, coho salmon, chum salmon, pink salmon, sockeye salmon, steelhead trout, bull trout, mountain whitefish, and cutthroat trout. The Puyallup Tribe of Indians have fished the Puyallup River for time immemorial. Originally built in 1904, the Electron dam generates power by diverting water from the Puyallup River through a diversion dam. A long wooden flume carries the diverted water to a manmade reservoir, known as a forebay, which has an elevation of approximately 872 feet from the Puyallup River below. At the forebay, the diverted water is fed into large cylindrical pipes, known as penstocks. From there, the water falls down the 872 feet to a building known as the powerhouse. At the powerhouse, the high-pressure water then turns power-generating turbines, creating electricity. Conveyances from the powerhouse return the water back to the Puyallup River. See Figures 1-3.
Electron Hydro, LLC (Electron Hydro) was formed as a Foreign Limited Liability Company in Washington on May 29, 2013, with its original incorporation occurring in Delaware in April 2013. At all times of relevance to this investigation, Thom Fischer was the only registered agent and the only person named as governor of the business. Electron Hydro, LLC purchased the Electron Dam in 2014. Electron Hydro’s website lists Thom Fischer as the company’s Chief Operating Officer.
Electron Hydro’s Proposed Construction Plan
Construction projects that occur in or around waters that may be subject to state and federal jurisdiction (wetlands, streams, lakes, or the coast) often require federal, state, and local permits. Of significance in this matter, Electron Hydro was required to obtain a Federal Clean Water Act permit, a Washington State Department of Fish and Wildlife Hydraulic Project Approval permit, and a Pierce County Shoreline Substantial Development permit. In order to expedite and streamline the various permitting processes, a single application form, known as the Joint Aquatic Resource Permit Application (JARPA), is used. Applicants submit a JARPA through a permitting liaison and each permitting agency then evaluates the JARPA for the proposed project under each permitting regime.
The JARPA is broken down into sections that require an applicant to identify several significant components regarding the proposed project. The applicant must describe the project in detail and include the specific construction methods and equipment that they propose to use on the project. This includes a description of the nature of any fill material that may be used, including the amount and placement of any fill into the waterbody. At the end of the JARPA, the authorized signatories certify that the information provided in the application is true, complete and accurate, and that the signors have the authority to carry out the proposed activities.
In March 2017, Electron Hydro submitted a JARPA that led to the issuance of permits for the first phase of a construction project. The JARPA listed Thom Fischer as the owner, applicant, and the person responsible for the project. Fischer signed the document along with Chris Spens, Electron Hydro’s Director of Regulatory and Government Affairs, who is listed as the authorized agent. Electron Hydro filed both a written summary of the work and detailed schematic plans for the project description. Electron categorized the construction as a maintenance project that included bank stabilization and channel modification. In the attached plans, Electron Hydro stated the purpose of the project was to repair the wooden diversion apron structure, replace the spillway with an inflatable rubber bladder, and reinforce the existing shoreline protection.
As part of the construction, Electron Hydro planned to construct a cofferdam and then alter the course of the river into a temporary bypass channel in order to complete their proposed work.
In the JARPA, Electron Hydro listed the fair market value of the project at “Approximately $3.6M,” likely meaning $3,600,000. In addition to the JARPA, Electron Hydro submitted several other documents to reviewing agencies, including a Biological Evaluation and an Engineering Report. None of the submitted plans included the use of artificial field turf or crumb rubber in the project. Before beginning this project, Electron Hydro needed the approval of a United States Army Corps of Engineers Nationwide Permit, a Washington Department of Fish and Wildlife Hydraulic Project Permit, and a Shoreline Substantial Development Permit.
United States Army Corps of Engineers Issuance of Nationwide Permits 3 and 13
The Secretary of the Army, acting through the Chief of Engineers, may issue permits for the discharge of dredged or fill material into the navigable waters at specified disposal sites, commonly known as Clean Water Act 404 permits. The United States Army Corps of Engineers (Corps) is responsible for the issuance of these permits. On August 8, 2018, the Corps notified Thom Fischer that, based upon the information Electron Hydro provided, Nationwide Permits (NWP) 3 (Maintenance) and 13 (Bank Stabilization) authorized Electron Hydro’s Phase I construction project. The letter to Fischer specifically stated the nationwide permits authorized the “proposal as depicted on the enclosed drawings dated March 28, 2017.” Attached to the letter were the schematics that Electron Hydro submitted with the JARPA. The letter further warned that any change in plans would require approval prior to commencing work and deviation from the approved plans could result in criminal penalties.
Washington Department of Fish and Wildlife Hydraulic Project Approval Permit
Washington State Department of Fish and Wildlife issued a Hydraulic Project Approval (HPA) permit applicable to this case on May 21, 2020, Permit Number 2018-6-256+02, and addressed it with attention to Thom Fischer.
The HPA permit set a number of conditions for the project. Electron Hydro and Thom Fischer violated two of the conditions of the permit. Condition Number 3, requires that Electron Hydro “must accomplish the work per plans and specifications submitted with the application and approved by the Washington Department of Fish and Wildlife, entitled ‘1-Electron Hydro JARPA_Sup_28Mar2017 Plans Reduced PDF’, dated May 14, 2018, and ‘Coffer Dam Left Bank Upstream Repair’, dated May 21, 2018.” Neither of these documents contained plans for using artificial field turf or crumb rubber. Additionally, the HPA’s Condition Number 25 required Electron Hydro to use “[u]se only clean, suitable material as fill material (no trash, debris, car bodies, tires, asphalt, concrete, etc.).”
Shoreline Substantial Development Permit
Pierce County administers the Shoreline Substantial Development Permit program consistent with the Shoreline Management Act and Pierce County Master Program for projects at the Electron Dam site. Electron Hydro submitted several documents to Pierce County as part of the shoreline application submittal process. None of these documents included the use of artificial field turf or crumb rubber.
In May 2018, the Pierce County Hearing Examiner conducted a public hearing regarding Electron Hydro’s application. The Hearing Examiner made a number of exhibits part of the record and heard testimony from Chris Spens, among others. On June 26, 2018, Hearing Examiner Michael McCarthy submitted a Report and Decision approving the project. The Hearing Examiner stated that the decision was based upon the representations made and the exhibits admitted at the hearing. In the Report and Decision, the hearing examiner stated that any substantial change to the designs terms or conditions of the project shall be subject to the approval of the examiner and may require further additional hearings.
Placement of Artificial Turf and Crumb Rubber during Construction
On behalf of Electron Hydro, Thom Fischer submitted information to the Army Corps of Engineers (Corps) on August 21, 2020, and again to the United States Environmental Protection Agency (EPA) on January 8, 2021. In these responses, there were a number of statements regarding Electron Hydro’s construction that took place in the summer of 2020. The construction of the temporary bypass channel commenced on July 15, 2020. From July 20, 2020 to July 22, 2020, rolled up segments of artificial turf were placed on top of the wooden spillway and on the gravel bypass channel floor. The artificial turf was obtained from Washington Rock’s King Creek Pit, a nearby rock quarry. The submission stated, “[i]t is known that the turf was used and removed from a sports field due to the color and markings of the turf.” And that the “use of field turf material was not permitted.” According to the documents submitted, approximately 2,409 square yards of artificial turf and sixteen to eighteen cubic yards of crumb rubber were placed in the channel.
Some of the people who were working for Electron Hydro in the summer of 2020 provided statements about the construction and installation of the artificial turf. One of the employees, Derek van Giesen, was a construction worker at the Electron Hydro site in the summer of 2020 and made several statements about the construction. Van Giesen explained that Electron Hydro moved the river away from the flume to make repairs. As part of the construction project and at Thom Fischer’s direction, Electron Hydro placed pieces of artificial field turf that contained millions of tiny rubber beads at the temporary spillway. During construction of the temporary spillway, van Giesen saw water flowing under the plastic liner, which to him, resembled a big pillow. According to van Giesen, Fischer was present at the construction site during the placement of the artificial turf in the temporary spillway. Van Giesen took videos of the construction site during the installation of the artificial turf. In one of the videos, artificial field turf can be seen on the ground of a construction site. That video depicts unrolled artificial turf that contained a significant amount of black crumb rubber material. Van Giesen posted one of those videos on Facebook on July 31, 2020; Figures 4 and 5 are stills from that video.
Additionally, the Washington Attorney General’s Office interviewed Mallory Voyk. In the summer of 2020, Mallory Voyk was employed as a fish biologist for Electron Hydro. On or about July 24, 2020, Voyk stopped by the dam construction site. While on site, some of the workers drew her attention to the temporary bypass channel. In the temporary bypass channel, Voyk noticed loose crumb rubber on top of the liner and saw artificial turf being placed under the liner. Voyk also noticed that water from the Puyallup River had penetrated under the liner and through the artificial turf causing it to bulge. According to Voyk, the bulge resembled a waterbed. Voyk took pictures of the installation and called her supervisor, Chris Spens, and warned him that Electron Hydro could not have the artificial turf in the river. Voyk additionally advised Thom Fischer, who was present at the construction site where the artificial turf was being placed in the bypass channel, that the placement of artificial turf and crumb rubber was unacceptable and that it could leak into the Puyallup River. Fischer assured Voyk that the liner was secure. After the river was diverted over the liner, Voyk recalled that coworkers at Electron Hydro informed her that the liner failed and released the plastic and crumb rubber in the Puyallup River. Voyk informed the Electron Hydro Site Manager, Cory Alefteras, that turf was in the river on August 1, 2020.
According to documents Electron Hydro submitted to EPA and Corps, they completed work on the temporary bypass channel on July 27, 2020. See Figure 6 for a photograph of the temporary bypass channel prior to the diversion of the river. On July 28, 2020, Electron Hydro diverted the flow of the Puyallup River into the temporary bypass channel. On July 30, 2020, the plastic liner ruptured and as a result, approximately 617 square yards of field turf material and 4-6 cubic yards of crumb rubber were discharged into the river. Electron Hydro received a Stop Work Order from Pierce County on or about August 6, 2020, and stopped all work at that time. The Corps issued a Stop Work Order on August 7, 2020. The river remained diverted and the artificial turf remained in the bypass channel until on or about October 25, 2020, when the river was re-diverted to the left bank.
In a letter dated September 10, 2020, addressed to federal, state, and local agencies, and the Puyallup Tribe of Indians, Thom Fischer wrote, “[o]n behalf of the owners, the entire team at Electron Hydro, and myself personally, I am writing to apologize and take responsibility for the release of debris in the Puyallup River.” Fischer further stated:
"In order to make sure the HDPE liner would not be compromised, we decided to lay field turf containing sand and crumb rubber (used in soccer and football fields) under the geofabric to pad the rocks and make the HDPE more puncture resistant. It was expected that this turf would never make contact with the water of the river. Unfortunately, the steep channel caused the turf to slide, thereby causing the liner to rip. This failure released field turf into the river, including an estimated 4-6 cubic yards of crumb rubber (produced from vehicle tires). While at the time it seemed needed to prevent greater problems, that choice was wrong."
The University of Washington-Tacoma Center for Urban Waters performed chemical analysis on samples of the turf and crumb rubber that Electron Hydro installed in the temporary bypass that was later recovered from the Puyallup River and stored at the Electron facility. These samples were tested under the direction of Associate Professor Edward Kolodziej. Analysis of these samples revealed that all of the crumb rubber samples contained the chemical 6PPD-Quinone, a chemical compound known to be present in tires. According to Associate Professor Kolodziej, 6PPD-Quinone is water soluble and easily capable of mobilizing from rubbers into water when wetted. 6PPD-Quinone is extremely toxic to coho salmon, and is among the most acutely toxic compound known to exist for fish. In addition to 6PPD-Quinone, Associate Professor Kolodziej stated that many other synthetic chemicals were present in crumb rubber and polluted the river upon discharge.
In summary, Electron Hydro, under the direction of Thom Fischer, placed artificial turf containing crumb rubber in the temporary bypass channel during construction on or about July 20, 2020. Waters of the state began making contact with the artificial turf and crumb rubber on or about July 24, 2020. Additionally, Electron Hydro continued to work at the construction site and diverted the Puyallup River over the artificial turf and crumb rubber from July 28, 2020, until Electron Hydro received a Stop Work Order at the site on August 6, 2020. Given these dates, Electron Hydro and Thom Fischer discharged artificial turf and crumb rubber into the Puyallup River in Pierce County, Washington, for a total of fourteen days before receiving a Stop Work Order. Additionally, Electron Hydro first used the artificial turf without approval for a total of eighteen days before it received a Stop Work Order.
Bail/Conditions of Release
If Defendant Thom Fischer appears out of custody at his arraignment, then the State has no objection to releasing him on his personal recognizance provided he notify the State of any change of address and has no new criminal law violations.
Based upon a review of databases maintained by the state and federal agencies, the Prosecutor’s understanding of the defendant’s criminal history is set forth in Appendix A attached hereto and incorporated herein by reference.
I certify (or declare) under the penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.
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