Critics: Cancer Risk Rates Out Of Whack In Washington Fish Consumption Rule-Making

Critics: Cancer Risk Rates Out Of Whack In Washington Fish Consumption Rule-Making
Washington state industries including forestry are concerned about the compliance costs of a draft rule on fish consumption from the Department of Ecology. Here, logs are prepared for export from the Port of Longview. Photo: Sam Beebe.

The Washington Department of Ecology’s draft rule on water quality standards related to human health sets unrealistically stringent cancer risk rate protections geared to an imaginary person rather than the general state population. And in reaching too far on public health, it is likely to impose greatly added costs to businesses and some governments. That’s according to some environmental policy experts, industries, and at least one Washington city. At the same time, a parallel draft rule of the U.S. Environmental Protection Agency (EPA) makes it difficult for the state to use more moderate criteria without the risk of being overridden.

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.

Ecology’s proposed standard for water quality is intended to create a one in a million cancer risk rate for people who weigh 154 pounds, drink 2.4 liters of untreated surface water a day, and consume 175 grams of locally caught fish a day, every single day for 70 years.

Risk Rate Challenge Compounded By New Fish Consumption Standard

The one in a million cancer risk rate has been used since 1992 but had been lowered to one in 100,000 in earlier version of the emerging state rule. However, the current draft rule increases the fish consumption rate from 6.5 to 175 grams a day. Combined with the one in a million cancer risk rate, the result is a markedly compliance burden that critics say creates unattainable requirements for permitees.

The stricter water quality standards are intended to protect at-risk populations who consume higher amounts of locally caught fish than the general population, such as Native American tribes and Pacific Islanders.

While proponents of the one in a million risk rate argue it’s good policy to ensure the highest standards, entities that require NPDES permits have fought for the lower one in a hundred thousand risk to offset the higher fish consumption rate. The two risk rates are both near zero, but the tenfold difference between the two could be enough to cost cities and industry billions in order to comply.

Compliance Costs Of Billions Seen

A December letter to EPA signed by more than 20 associations and companies said that the agency’s rule would “result in the expenditure of billions of dollars in Washington in an effort to comply with the standards based on this new policy.” (Page 18)

The letter also argues the agency “failed to provide any meaningful basis for a risk policy that would be the equivalent of” between one in a million or ten million cancer risk rate when the fish consumption rate no longer reflects that of the general population.

“The position advanced by EPA over the past three years” is in effect that “‘we want it this way because we want it this way,'” the letter states.

Among the signers was The Association of Washington Business, as well as Northwest Pulp and Paper Association (NWPPA), the American Forest and Paper Association, Western States Petroleum Association, Alcoa, Nucor Steel, Schintzer Steel, Northwest Food Processors Association, Utility Water Action Group, Western Wood Preservers Institute, Treated Wood Council, American Petroleum Institute, Kaiser Aluminum, Packing Corporation of America, Westrock, Ponderay Newsprint Company, Sonoco Products, and Inland Empire Paper. Other signatories included Boeing, the Port of Walla Walla, Weyerhaeuser and Kapstone Kraft Paper Corp.

City Of Everett Would Also Feel A Big Pinch

The city of Everett has estimated it will cost them  $1 billion alone to upgrade their waste water treatment facility in order to meet new water quality standards if EPA’s rule is enacted.

However, it wouldn’t cost the city anything if the cancer risk rate was lowered to one in a hundred thousand. City officials said they could meet such standards using current treatment technology.

At the same time EPA has already written its own rule using the one in a million risk rate. The EPA rule is yet to be finalized. But because Ecology’s rule will ultimately require EPA approval it may be difficult for the state to go against them on the cancer risk rate.

‘A Completely Arbitrary’ Standard

There’s nothing wrong with setting up a rule to ensure clean water, but it makes no sense to use criterion that creates a “nonexistent exception to make the rule,” said H. Sterling Burnett. He’s a research fellow on environmental policy with the national nonprofit research organization Heartland Institute. He is also the managing editor of Environment and Climate News.

In other words, wastewater treatment facilities would need to reduce chemicals in the water to a low enough level that there would be a one in a million cancer risk rate for someone engaging in a lifestyle that nobody actually does.

“Why should we ever consider a standard that doesn’t apply to any human being?” Burnett said.

The one in a million risk rate is commonly used as a standard for determining safe levels of carcinogens not just for setting water quality but also for toxic waste site cleanup.

However, a 1991 paper by Dr. Kathryn E. Kelly of Delta Toxicology, Inc. concluded that this risk rate was originally “a completely arbitrary figure adopted by the FDA in the 1970s as an ‘essentially zero’ level of risk for residues of animal drug.”

Using the one in a million risk rate to determine safe levels of chemicals for humans would be akin to using one mile per hour as a “virtually safe” speed to drive on the road, Kelley wrote.

“The solution to developing better criteria for environmental contaminants is not to adopt arbitrary thresholds of “acceptable risk” in an attempt to manage the public’s perception of risk,” Kelley wrote. “Rather, the solution is to standardize the process by which risks are assessed, and to undertake efforts to narrow the gap between the public’s understanding of actual vs. perceived risk.”

Ecology Special Assistant Kelly Susewind explained that the cancer risk rate set by the department for water quality standards is not a “decision based solely on science” but also on “judgment and a policy call.”

Support For Recent Proposed Risk Standard

Under the previous rule put out by Ecology last year at Governor Jay Inslee’s behest, the cancer risk rate would have been one in a hundred thousand. According to Ecology this rate is “well within EPA’s…guidance levels for risk for all exposed populations.” EPA recommends between one in hundred thousand or one in a million. EPA’s guidelines also say the most exposed populations should not have a risk greater than one in ten thousand.

One in one hundred thousand is also the base guideline value for the World Health Organization for drinking water quality.

However, the risk rate got changed after Inslee sent Ecology back to the drawing board when his proposed toxics reduction bill failed to gain passage in 2015. Susewind said their original plan to use a one in a hundred thousand risk rate was tied to sections of the bill in which Ecology would receive increased authority to manage toxics at their source before they entered the water supply.

Rep. Shelly Short (R-7) said that “nobody acted in bad faith” on the bill but they were still unable to come to an agreement about the new policies because they’d “institute a very new way of doing business.”

The bill’s failure is a part of what led to the decision to tighten the cancer risk rate to one in a million, said Susewind.

It’s unnecessary to throw out proposed regulations that would have met environmental standards while being less impactful to those regulated. That’s according to Brandon Houskeeper, director of government affairs on environmental issues with the Association of Washington Business.

‘Least Burdensome’ Approach While Ensuring Public Health

“For me, when it comes to rulemaking the state has a requirement to act in the least burdensome way while ensuring results,” he said.

Like Houskeeper, Short believes the risk rate should be lower so that permit applicants can actually achieve the standards. The perceived benefits of a lower cancer risk rate should be compared to the estimated costs for employers, she added.

“It’s not because we want anybody to be at risk, not because we don’t want clean water,” she said. “You just get 95 percent of the way there and it’s the last five percent that makes it very difficult.”

Short said using the one in a million cancer risk rate is going to “be very expensive. Without variances or implementation tools to offset the harsher standards, the rule is “just going to create havoc,” she added.

But even if Ecology went with the one in a hundred thousand cancer risk rate as proposed before, it would still need EPA approval. And even coupled with Inslee’s toxics reduction legislation it’s uncertain the use of one in a hundred thousand cancer risk rate would have been approved by EPA, Short said.

Restricting Public Access To Actual Fish Consumption Data

Short has also raised concerns about data on fish consumption by state tribes. This data was used in part to determine the 175 grams a day rate, increase from the current 6.5 grams.

Short said when she requested the information she would told by Ecology it was protected by proprietary privilege.

“This impacts the entire state of Washington,” she said. “People should have an ability to see that information.”

Governor Inslee’s Office referred Lens to Ecology when contacted for comment.

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