The Environmental Protection Agency (EPA) has reversed its 2017 decision to override a water quality rule adopted by the Washington Department of Ecology with its own version. Now, the federal agency is defending the standards submitted by the state agency in 2016, while Governor Jay Inslee has come out against the decision and is considering legal action.
Although the Ecology rule created under the federal Clean Water Act was much more stringent than its previous version, the EPA’s rule had even higher standards for the allowable levels of certain chemicals, which industries and local governments would have to remove through wastewater treatment systems. However, to comply would have cost billions. Even then, permittees have argued the technology necessary to comply with those standards does not currently exist.
In a statement, Association of Washington Business (AWB) Vice President of Government Affairs Gary Chandler said the EPA’s rule “would have seriously endangered family-wage jobs at facilities across the state for both private companies and local government agencies. Approval of the state standards will give local employers an opportunity to work on water quality improvement without the potential loss of family-wage jobs, and allow local governments to control costs for wastewater treatment while benefitting all ratepayers with meaningful water quality improvement.”
The rule concerned a part of the Clean Water Act known as the “fish consumption rule” that determines water quality standards for each state based on the likelihood of a person getting cancer after consuming untreated water and consuming wild fish. Under Ecology’s version, the standard would have been a one in 1 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. Industries and local governments seeking to either get or renew a National Pollutant Discharge Elimination System (NPDES) permit to discharge water after use would have to comply with those standards, though the rule contained compliance schedules.
The 175 grams of wild fish is a significant increase from the previous 6.5 grams used in the equation. Ecology’s previous draft rule would have used a one in 100,000 cancer risk rate while increasing the amount of fish consumed, but the rule was scrapped. However, the one in 1 million cancer risk rate was created in the 1970s as a “zero risk” rate for “residue of animal drug.”
While Ecology worked on its fish consumption rule, EPA began a separate rulemaking process. After Ecology submitted its rule to the federal agency in 2016, EPA overrode it with its own rule. Shortly after the EPA rule was adopted, a petition was filed asking EPA to reconsider.
In an email to stakeholders, EPA Region 10 Director Lucy Edmondson wrote that the decision “restores Washington’s role as the primary authority for adopting water quality standards in the state and EPA remains committed to supporting the state on implementation of its water quality standards.”
In a statement, Northwest Pulp and Paper Association Executive Director Chris McCabe said “the state rule sets standards that are among the most restrictive and protective in the nation and provides broad protection of human health across all communities in Washington, including those who are most exposed to potential toxics in water and fish.”
Yet Inslee criticized EPA’s move in a statement, saying “not only does this illegal act represent bad faith around a process that already occurred, but it is being done without notice or consultation with the state or Washington tribes.” Ecology Director Maia Bellon has also opposed the change, though both the Governor’s Office and Ecology had previously advocated for the state’s rule over the EPA’s.
Others have argued that rather than be cooperative, the EPA essentially browbeat Ecology during and after its initial draft rulemaking process into adopting stricter standards, such as the 1 in 1 million cancer risk rate, and then overrode those standards when they weren’t stringent enough.