A Fish Story With A Twist

Agency moves, not legislative action, would set stringent compliance rules.

Here's A Fish Story With A Twist
Industry, cities and the state would all like the EPA to back out of Washington state water quality regulations related to fish consumption and human health. But environmental groups want EPA to assert control. Photo: U.S. Fish and Wildlife Service.

The Department of Ecology is working on a new proposed rule for water quality standards intended to protect eaters of locally caught fish. While environmental groups and local tribes say the new requirements will help ensure cleaner water and protect public health, industry and city leaders warn that the standards are too costly and unrealistic.

At the same time, the Environmental Protection Agency (EPA) has created its own water quality standards that could potentially cost one Washington city a billion dollars.

However, the EPA has yet to adopt them, in anticipation of Ecology submitting its own rule. Environmentalists are seeking a court order for EPA to enforce their more stringent water quality standards, saying that state has been dragging its feet for too long.

The deadline for public comment on Ecology’s draft rule is April 22. A final decision is expected in August.

The draft rule would impose new regulatory mandates to get and renew a National Pollutant Discharge Elimination System (NPDES) permit under the Federal Clean Water Act. Permittees include industries like pulp and paper, aluminum smelting plants, and municipalities and ports.

Wastewater treatment facilities must break down the chemicals in the water to required levels before it can be put discharged into rivers, lakes and other bodies of water.

Under the draft rule one of the new chemicals added would be Methyl chloroform, known as 1,1,1-Trichloroethane. It would have to be less than 47,000 milligrams per liter of water in order to meet the human health criteria (HHC) or safe levels of a chemical concentration in the water.

Limits On 98 Chemicals Eyed, For Human Health

The draft rule creates new HHC in fresh water for 98 chemicals.

One of the proposed changes by both Ecology and EPA concerns the rate of fish consumption, one of the 14 variables used to determine HHC. The current consumption rate used since 1992 is 6.5 grams per day, a bite or two. The new rule would set the rate at 175 grams per day or almost four-tenths of a pound.

How much of the fish eaten by at-risk populations is caught in local waters that would be regulated, and how much are they eating? An Ecology study found between 72 to 88 percent of total fish consumed by the Tulalip Tribes is harvested locally. The tribe has 4,000 members, 2,500 of whom live on the 22,000 acre Tulalip Indian Reservation in Snohomish County. However, the study also found the age-adjusted median consumption rates for the tribe for all forms of fish combined were 53 grams per day for men and 34 grams for women.

Local Consumption Levels Unclear, In Several Respects

The Muckleshoot Indian Tribe has not performed a tribal fish consumption survey, and The Lower Duwamish Waterway fish consumption rates were not used to determine the consumption rate.

The 175 grams per day consumption rate in Ecology’s draft rule was determined by an estimated average consumption rate of the highest fish consumers in the state. It also was determined by “EPA guidance and precedent” and “input from multiple groups of stakeholders.”

Historically, the states have used data on the national general population to set the consumption rate.

Ecology estimates 140,000 to 380,000 Washington adults are considered “high fish consumers” who eat 250 grams of fish a day. However, this estimate does not include how much of the 250 grams contain fish was caught locally.

At most, this group accounts for five percent of Washington’s 7.2 million residents.

No study has been done on the consumption rate for the state’s general population, according to Ecology.

Ecology officials say the new criteria will ensure that the most at-risk residents will be protected.

However, neither side seems placated by the changes. Puget Soundkeeper Executive Director Chris Wilke believes the department is too lax on certain chemicals compared to the EPA.

Others believe it’s just “tightening the screws on already high standards” for industry. That’s according to Brandon Houskeeper, Government Affairs Director at the Association of Washington Business (AWB).

Cancer Risk Rate Another Key Variable

Last year industry and cities were willing to go along with the higher fish consumption rate because Ecology’s previous draft rule also called for a lower allowable cancer risk rate. That rate is another variable used to determine the HHC.

Currently the allowable risk-rate is one in a million. Under Ecology’s proposed 2015 rule, the rate would have been eased to a less-strict level of 1 in 100,000.

But the agency reverted to the current rate after Governor Jay Inslee sent them back to the drawing board last year. The Lower Elwha Klallam Tribe claimed lowering the cancer risk rate would have effectively set the actual fish consumption rate at 17.5 grams.

The 2015 draft rule was connected to several related bills proposed by Inslee that failed to get through the legislature.

Compliance Requirements At Issue

Aluminum manufacturers like Alcoa are still trying to determine the potential impacts of Ecology’s rule on their smelting plants in the state. Pulp and paper industry leaders like Chris McCabe already see the draft rule setting “up a system for absolute failure” on compliance.

McCabe is the Executive Director of the Northwest Pulp and Paper Association. NWPPA represents 13 member companies and 16 paper mills in Washington, Oregon and Idaho.

In response to concerns by permitees, Ecology made several compromises in their new draft rule. PCB and mercury would be kept at the standards set by the 1992 National Toxics Rule. Arsenic would remain the same as the 2015 draft rule at 10 milligrams per liter.

Ecology’s draft rule also provides some relief for those who can’t meet the standards right away. It removes a ten-year limit for compliance scheduling in order to meet water quality standards. The department also offers intake credits – these only require permitees to maintain the quality of the water they receive even if it exceeds the standards.

However, Ecology officials say these intake credits are not “widely applicable” because the water has to be discharged into the same source it was drawn from.

The problem with many of these implementation tools is that they have never been used before, McCabe said. The changes also open them up to litigation. Under the federal law third parties are allowed to sue to ensure compliance.

“Our concern is they (Ecology) create unattainable standards and then set these untried tools for us to use. The environmental community will sue on those tools in court. The judge will say you have to comply every five years,” said McCabe.

He added, “let’s have the most highly protective water quality standards we can in the state, but let’s be able to meet the standards. Let’s not set ourselves up for failure.”

Meanwhile, environmentalists and tribes are hoping the EPA’s standards are adopted.

Jim Peters is the habitat policy analyst for the Northwest Indian Fisheries Commission. He said that the EPA’s rule best represents the quality standards the tribes have been trying to get for years. While there will be costs associated with compliance, he said they’ve been open to the idea of phasing in the rules.

“We want those industries to be there,” he said. “We just want to make sure we’re cleaning up the water.”

EPA’s Rule, And Technology Gap: A Toxic Brew For Business

But state industry leaders like McCabe said EPA’s draft rule would be a “catastrophe.” It has stricter standards for mercury, PCB and arsenic. EPA also wouldn’t remove limits on compliance schedules.

A 2013 report by AWB, plus the Association of Washington Cities (AWC) and Washington State Association of Counties found that “there are limited ‘proven’ technologies” to meet the standards Ecology initially proposed and which are included in EPA’s yet-to-be-adopted standards.

The report also found current wastewater treatment facilities are not capable of compliance.

Everett Sees Cost Of EPA Rule At About $1 Billion

Although the report didn’t estimate a total cost for Washington cities, some claim it could be staggering. Everett puts the total bill for compliance at an estimated $1 billion, according to Public Information and Education Manager Marla Carter with the city’s public works department.

Although Ecology’s standards seem “overprotective and hard to measure” it’s a far cry from what EPA is demanding of cities, said Carter.

AWC Government Relations Advocate Carl Schroeder said one of the challenges for cities has been trying to remove chemicals they don’t put into the water themselves in order to meet standards.

Water quality standards technically fall under federal jurisdiction via the Clean Water Act. The EPA normally delegates this authority to the states. The agency then authorizes the rule once submitted. Last year the federal agency decided to craft its own rule, but it is waiting to review Ecology’s draft rule. However, it could then ignore whatever is submitted and finalize its own.

Industry, Cities, State To EPA: Please Butt Out

This possibility has provoked concerns from industry, cities, and the state. In a December letter to the EPA Ecology Director Maia Bellon insisted they were “in a much better position” to make these decisions than EPA.

Houskeeper sees the EPA’s actions as a threat to the state’s normal autonomy in determining such rules. Puget Soundkeeper’s Wilke argued that the agency is acting perfectly within its legal authority.

However, at this point EPA may not have a choice. In December a group of environmentalists filed a joint complaint against the agency in an effort to get their rule finalized. Earthjustice, a national nonprofit environmental law firm, filed the lawsuit on the group’s behalf and is seeking a summary judgment. Among the plaintiffs is Puget SoundKeeper.

McCabe and Houskeeper believe the new rule making process as crafted is creating a climate of regulatory uncertainty that only exacerbates other proposed environmental changes with the state’s Clean Air Rule.

“Pulp and paper companies have to plan out 10-15 years, and we’re being hit in many different ways,” McCabe said.

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