Ted Sturdevant, head of Washington’s Department of Ecology, just circulated this letter that backs off from the current path Ecology was on with respect to revising water quality standards and cleanup standards by revising fish consumption rates. I’ve written about this issue a few times: background is here, and some of the implications of the former approach were discussed here and here.
Here is a quick summary of the Sturdevant letter, along with my off-the-cuff reactions:
1) In response to concerns that the current efforts may run afoul of administrative process laws, Ecology is going to begin formal rulemaking in August to adopt new water quality criteria for toxics. Interestingly, the letter references criteria that “reflect real consumption patterns in Washington.” One of the issues with adopting new fish consumption rates is whether to do a blanket default rate for the entire state, or to do site or region specific rates that account for the reality that types and amounts of fish consumed in one part of Washington may be dramatically different from another part of the state. The blanket default rate is easier to apply, but I’d argue it doesn’t adequately reflect consumption patterns on a smaller geographic scale. The region or site-specific rate approach is more difficult to apply, but at least has the potential to reduce the high cost/low reward scenario of regulating to an endpoint that doesn’t result in environmental benefit or is impossible to attain.
2) Ecology is planning rulemaking efforts to adopt “implementation tools” to help dischargers comply with the new water quality criteria. This rulemaking is scheduled to begin in 2013, and likely will include tools such as site-specific variances and compliance schedules that can be built into NPDES permits. I think that, from a discharger’s perspective, these rules will be extremely important. Without them, I still believe adopting ultra-low water quality criteria based on high fish consumption rates is a recipe for regulatory gridlock and litigation.
3) With respect to Washington’s Sediment Management Standards ( the “SMS,” which govern sediment cleanups in Washington), Ecology is moving away from adopting cleanup standards based on default fish consumption rates, and instead is planning on issuing rules requiring site-specific cleanup standards based on a reasonable maximum exposure rate. If the underlying assumptions that go into that site-specific calculation are not overly conservative, this approach could make more sense and be more reflective of “reality” than default rates promulgated in the SMS that may not apply to a particular water body. If the underlying assumptions that go into the site-specific calculation are overly conservative, this approach can lead to the type of gridlock seen with the Duwamish cleanup, where the remedial goals–based on high fish consumption rates–cannot be attained because of the background contamination flowing into the river.
Finally, Director Sturdevant acknowledges that the current regulatory framework may not efficiently address modern environmental issues, stating that:
Current regulations alone–like the ones we are now revising–won’t get the job done. I believe it is time to ask whether we can devise new approaches in Washington State that can create a win-win for our environment, public health and our economy, by achieving better, faster, reductions in toxic pollution, while avoiding those high-cost/low-value scenarios. In the coming weeks, I will be convening an effort to ask and answer this question over the next 6 months with the goal of finding innovative new strategies for further development, and, hopefully, implementation in 2013 and beyond.”
We’ll see how this plays out. It certainly is a noble goal with much potential. It is a short message but a huge undertaking–one that I think may be welcomed both by the regulated community and the environmental community, particularly if it leads to new regulatory schemes that are more efficient in addressing modern toxics’ issues.