EPA Mandate On Washington State Water Quality Faces Possible Challenges

EPA Mandate On Washington State Water Quality Faces Possible Challenges
Newly-issued EPA clean water rules for Washington State exceed reasonable and achievable standards, say major employers and associations. A challenge in court or by the new administration of president-elect Donald Trump is considered possible. Photo: Ser_hyo.

It would cost about $7.4 billion total for every city in the Puget Sound region to upgrade their wastewater treatment plants to the best available technology, according to a projection by the Association of Washington Cities (AWC). However, those facilities would still fail to meet new water quality standards for Washington recently adopted by the Environmental Protection Agency under the Federal Clean Water Act.

In its new rule, EPA signed off on 45 of the water pollution standards that the Washington Department of Ecology okayed earlier this year, and completed updates to an additional 144 federal standards which will also apply. Ecology is mulling a federal court appeal, as are industry, and local governments.

Executive Remedy Eyed

However, the plot thickens. President-Elect Donald Trump could alter or rescind the rule as part of broader planned reforms to federal environmental policy. National Geographic recently reported Trump has pledged to repeal the EPA interpretation of a Clean Water Act clause defining its legal jurisdiction.

The new EPA rule is likely to end up on the chopping block, says State Rep. Vincent Buys (R-42). He is a member of the Washington House Agriculture and Natural Resources Committee.

“We’re going to have a whole new set of (EPA) guidelines to go by with the new administration,” he said. “I don’t think any of this (EPA rule) is going to be able to go through.”

Less certain is Chris McCabe. He is executive director of the Northwest Pulp and Paper Association (NWPPA). It represents 13 member companies and 16 paper mills in Washington, Oregon and Idaho. McCabe told Lens that Ecology “needs to step up and protect its right to do its own water quality standard development,” by appealing the EPA rule.

Compliance Costs Would Nearly Double, But Benefits Scant

In a letter to EPA earlier this year, almost 20 major Washington state employers and industry associations wrote that the proposed EPA rule would raise compliance costs from $6 billion to $11 billion for 73 major permittees for one chemical alone, PCBs. According to the letter, most state waters would still not meet the new federal standard. The employers added the rule could potentially stifle economic growth by blocking new or expanded construction projects until Washington waterways “achieve impossibly low criteria.”

Also skeptical is Carl Schroeder, a government relations advocate at AWC. He told Lens that the stakeholders involved in the Ecology rulemaking process strove to create a rule “that reflected the values of Washington State.” The EPA rulemaking process lacked that same level public input, he added.

The EPA rule overrides one adopted by Ecology regarding the maximum level of certain chemicals that cities and industry wastewater treatment facilities can discharge into water streams.  These standards must be met to obtain and renew a National Pollutant Discharge Elimination System (NPDES) permit.

EPA Usurping The State Role

Although Ecology is still reviewing the EPA rule, roughly 75 percent of the Ecology rule criterion was replaced, according to Governor Jay Inslee’s Chief of Staff David Postman (13:35 in the video). The federal rule preserved compliance scheduling found in the Ecology version. The idea is to help permitees reach the difficult-to-attain standards.

About the new EPA rule, Postman stated, “It’s kind of hard to get what they’re saying. They rejected most of what we proposed. This was disappointing to the administration and the Department of Ecology.” Regarding the planned compliance schedule, the state doesn’t “know if that’s enough, frankly” to help affected emitters comply, added Postman.

Fishy Calculations

The water quality standards are based on an equation that sets the allowable cancer risk rate for someone consuming locally caught fish. The EPA and Ecology rules both use a one in a million cancer risk rate for someone consuming 175 grams of locally caught fish every single day for 75 years.

Some environmental policy experts say that risk rate level has no scientific basis. As well, an Ecology report indicated only five percent of Washington’s 7.2 million residents consume 250 grams of fish daily, locally caught or otherwise.

Worrisome Precedent

If allowed to stand, EPA’s intervention in Washington state could set a dangerous precedent for other types of federal environmental requirements, said McCabe. “If you look at it big picture, it’s more than just water quality standards,” he said. “It represents a major policy shift by EPA to change the risk and protection levels of regulations.”

One of the problems with the EPA rule is that it is “asking for a big investment from the wrong set of folks” by requiring cities and industry to purchase equipment to clean up chemicals such as PCBs they did not put in the water, said Schroeder. PCBs have been banned since the 1970s.

A recent AWC projection concluded that the best available wastewater treatment technology would not only cost $7.4 billion but would only be able to remove six percent of all PCBs entering Puget Sound region water streams over 25 years.

This is why Ecology should adopt their original draft rule that conformed to the federal minimum standard yet was also achievable for cities and businesses, said Rep. Brian Blake (D-19). Blake is the chair of the House Agriculture and Natural Resources Committee.

“We may choose to go beyond that (federal standard), but it’s our choice,” he said. “When you distort that law, like I think EPA has done, it creates economic challenges.”

Legal Challenges Brewing?

A third party is allowed under the Clean Water Act to sue EPA. There are “definitely ongoing conservations” within AWC about this possibility, said Schroeder “As far as our action, we’re still evaluating what we want to do and with individual cities what they want to do,” he said. Affected industries are also deciding what to do, and it could include legal action. Said McCabe, “We are considering all of our options.”

Apart from courtroom challenges is the possible Trump card, not yet played.

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