The Environmental Protection Agency (EPA) last month closed the public comment period for a proposed withdrawal of its water quality standards for Washington state, rejecting a request to extend it for another three months. While the stance held by state industry employers and business advocacy groups has changed little since EPA overrode the state Department of Ecology’s water quality standards in November 2016, several state officials are singing an entirely different tune compared to three years ago regarding which standards they think are best for Washington.
Earlier this year, EPA Director Andrew Wheeler announced that the agency would explore whether to replace its standards with Ecology’s. However, recent statements made by Ecology Director Maia Bellon heavily imply that the federal agency is proposing to do precisely the opposite.
At a Sept. 25 public hearing she repeatedly referred to EPA’s rule as “our rule,” saying that reverting back to standards submitted by her department would be “regressive” and lead to “systematically dismantling clean water protections and states’ rights.”
“We’re just perplexed,” Northwest Pulp and Paper Association Executive Director Chris McCabe said.
Bellon took a similar stance while testifying in front of the House Committee on Transportation & Infrastructure’s Subcommittee on Water Resources and Environment on Sept. 18. While her testimony noted the fish consumption rule was finalized in 2016, left unmentioned was the fact that Ecology’s standards were rejected by EPA in favor of its own rule.
“In May, EPA took the counterproductive and punitive step of repealing our (EPA’s) rule, creating an atmosphere of regulatory and legal uncertainty that benefits no one,” she said.
However, McCabe said at the hearing “nothing creates greater uncertainty than unobtainable water quality standards” under the EPA rule.
Washington Policy Center Environmental Director Todd Myers described the situation to Lens as “politics on steroids. It seems to me that this has almost nothing to do with water and everything to do with Trump-bashing. It was obvious from day one that this was about politics and not the environment.”
The water quality standards – also known as the “fish consumption rule” under the federal Clean Water Act – determines the maximum level of certain chemicals that can be discharged by wastewater facilities used by major employers, cities and counties. Those standards must be met to obtain and renew a National Pollutant Discharge Elimination System (NPDES) permit.
In 2012, Ecology started the rulemaking process to update those standards based on the 1992 National Toxics Rule. The process at one point stopped due to controversy over possibly reducing the cancer risk rate used in part to determine the maximum level of chemicals. The process then resumed in 2015, with Ecology adopting new and stricter water quality standards in 2016.
At the same time, EPA Region 10 then under Director Dennis McLerran, initiated its own rulemaking process and eventually created even more stringent standards than those adopted by Ecology. McLerran was appointed by Governor Jay Inslee to the Puget Sound Partnership (PSP) Leadership Council in 2017.
EPA Region 10 ultimately decided to override Ecology’s standards in November 2016, despite protest by both Governor Jay Inslee’s Office as well as Ecology. Prior to that decision, an Ecology spokesperson told Lens that the “state’s rule is best for Washington’s people and economy and the EPA should move swiftly to adopt our rule.”
After EPA overrode Ecology in 2016, Bellon said in a statement that “we’re disappointed that Washington State’s approach wasn’t accepted in its entirety. We worked hard to craft new water quality standards that were balanced and made real progress improving environmental and human health, while helping businesses and local governments comply.” Shortly after EPA’s November 2016 announcement, Inslee’s Chief of Staff David Postman described the outcome as “disappointing to the administration and the Department of Ecology.”
Bellon isn’t the only state official to now oppose the adoption of her agency’s rules. Governor Jay Inslee argued in May that EPA’s decision is “throwing our clean water standards into disarray,” while State Attorney General Bob Ferguson says the move is illegal and has since filed a lawsuit.
At the Sept. State Rep. Beth Doglio (D-22) said at the public hearing that reverting to Ecology’s 2016 standards “could have serious unintended consequences on everyone and everyone stands to lose.”
However, Association of Washington Business Director of Government Affairs Peter Godlewski noted that Ecology’s standards “represented the best available science and result of four years of a dedicated, exhaustive, and far-reaching stakeholder outreach process. The state standards are tough and capable of implementation.”
Both EPA and Ecology’s use a one in million cancer risk rate cancer risk rate that was arbitrarily created in the 1970s by the Food and Drug Administration as a ‘essentially zero’ level of risk for residues of animal drug.”
McCabe said that at this point “we’re just waiting to see what EPA does and when they do it.” He sees the agency’s refusal to extend the public comment period as a sign that they’re “still seriously considering it.”