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EPA Promulgates New Water Quality Standards for Toxics in Washington: Rejecting the Vast Majority of the Criteria Developed by the Washington Department of Ecology

Posted in Clean Water Act

If you have not yet seen the press, yesterday, EPA issued its final rule revising water quality standards for toxics in Washington. This finalizes the draft rule published more than a year ago, and comes on the heels of the lawsuit brought against EPA for not finalizing that rule in a timely fashion. It also comes on the heels of Washington submitting its own water quality standards to EPA for approval under the Clean Water Act this past August. So, the action by EPA is two-fold: first, it finalized its own rule that will be applicable in Washington (replacing the National Toxics Rule), and second, it approved and disapproved parts of Washington’s submittal. The net result is one new, comprehensive set of water quality standards that will form the basis for permits issued in Washington under the Clean Water Act.

Let’s try to unpack the two parts of this action. EPA’s new rule can best be understood by reviewing the partial approval/partial disapproval sent to Director Bellon on Ecology’s submittal (a comparison of the two rules is here).

What did EPA approve? Not much. EPA reviewed Ecology’s package of “implementation tools” and approved them in part, specifically most of Ecology’s variance provision and Ecology’s provision on compliance schedules. Ecology’s new intake credit tool was deemed to not be a water quality standard, although I’ll admit that the language in the approval letter is somewhat unclear regarding whether the intake credit provision is part of the “approved implementation tools” that Ecology can use in administering the NPDES program. (Take a look at the second page of Dan Opalski’s letter to Maia Bellon and let me know what you think in the comments below.)

Of course, the real substance of this rule are the water quality standards themselves. Again, to orient you, EPA approved only 45 of the 192 new human health criteria that Ecology submitted to EPA. EPA then promulgated criteria for those submitted by Ecology that EPA disapproved. EPA delayed action on arsenic, dioxin, and thallium, which will be revisited at a later date. Overall, although the implementation tools are a positive with regards to compliance with the new standards, EPA’s unwillingness to defer to Ecology’s robust rulemaking process and conclusions with regards to many numeric criteria is disappointing and is one that likely will have negative impacts on many dischargers in Washington. And, more fundamentally, these criteria—although numerically more stringent—do nothing to address the shifting source of toxics in the environment, so I think it is unlikely that this rule will result in any environmental benefit.