Washington State Attorney General Bob Ferguson has filed a lawsuit against the Environmental Protection Agency (EPA) for repealing water quality standards that overrode those previously adopted by the state Department of Ecology.
While Ferguson claims the federal agency’s decision last month violated federal law, for some affected entities it’s an unexpected move after Governor Jay Inslee’s office as well as Ecology previously advocated for the state’s standards that are less stringent and allow time for affected entities to comply.
Northwest Pulp and Paper Association Executive Director Chris McCabe told Lens that they’re surprised to see Washington officials taking such a strong stance against Ecology’s rule that they previously fought to get approved. The association was among those the employers included in a 2017 petition to EPA to reconsider its rule.
McCabe points to comments made before and after the EPA overrode Ecology’s 2016 rule. In November 2016, Governor Jay Inslee’s Chief of Staff David Postman remarked that the decision was “disappointing to the administration and the Department of Ecology.” Ecology also spoke out in favor of its rulemaking authority before the 2016 decision.
Yet in a recent statement Ecology Director Maia Bellon opposed the EPA’s reversal. “The Clean Water Act is crystal clear on when it’s appropriate to change water quality standards in a state, and how it must be done.” In May, she wrote a letter to the EPA claiming that a reversal would “only create regulatory uncertainty and confusion.”
In the June 6 complaint in the Western Washington U.S. District Court filed against the EPA and its director Andrew Wheeler, Ferguson argued that the EPA’s recent move violated two provisions in the federal Clean Water Act under 33 U.S.C. § 1313(c)(4)(A) and 33 U.S.C. § 1313(c)(4)(B) that provide instances of when the EPA may override or reverse a rule.
The differences between Ecology and the EPA’s rules are not insignificant. EPA’s version replaced at least 75 percent of Ecology’s and could potentially increase the cost of compliance for a single chemical (PCB) from $6 billion to $11 billion for the 73 permittees in Washington.
The ongoing legal fight concerns Washington’s water quality standards under the Clean Water Act used to determine the allowable levels of certain chemicals in water emitted by wastewater treatment facilities. To receive or renew a federal National Pollutant Discharge Elimination System (NPDES) permit, cities and industries must demonstrate compliance with these rules. Technically, the EPA has authority to create the rule but normally delegates it to the state. The last time the standards were updated was 1992.
However, a 2014 proposed Ecology rule generated controversy by lowering the cancer risk rate used in the “fish consumption rule” equation from one in 1 million to one in 100,000, even though Ecology has said it was “well within EPA’s…guidance levels for risk for all exposed populations.” Eventually the state agency restarted the rulemaking process, while the Regional EPA office, then under Director Dennis McLerran, began drafting its own rule.
The fish consumption rule is used to determine how much wild fish and untreated water a person could consume daily in order to achieve a one in 1 million risk of cancer. However, the one in 1 million risk rate is based on an arbitrary number first used in the 1970s and lacks any scientific basis.
That figure also creates standards for chemicals such as PCBs that permittees cannot comply with due to technological limitations. A 2016 estimate by the Association of Washington Cities (AWC) indicates that the best available wastewater treatment technology would cost $7.4 billion and be able to remove just six percent of all PCBs entering Puget Sound region water streams over 25 years.
Ecology finally completed its rulemaking process in 2016. However, later that year the EPA overrode the state’s standards with its own rule.