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Science, Law & the Environment Emerging Topics in Environmental Law

Will raising default fish consumption rates result in a cleaner environment?

Posted in Clean Water Act, Emerging Policy, Environmental Risk, Fish Consumption, Public Health Policy, Water Quality

There is more coverage on Washington’s efforts to revise fish consumption rates in today’s Seattle Times. I’ve shared my thoughts on this issue before, discussing the potential for regulatory gridlock, and reporting on early rumors during the start of this process a couple years ago. To summarize the issues, Ecology is looking to increase the default fish consumption rates used to calculate water quality standards for toxics, and the rate used to calculated cleanup standards for aquatic cleanups. The net result would be more stringent water quality standards and lower cleanup standards, both of which make regulatory compliance more difficult.

In this post, I’d like to take a look at this summary of the issues as reported by Maureen O’Hagen in today’s Seattle Times article, particularly the italicized piece:

As the DOE announced it would re-evaluate those numbers, the issue became a flash point for businesses and government agencies around the state, as well as for environmental groups and tribes. In general, environmental groups and tribes want cleaner water, and thus are interested in seeing the number go up. Businesses, which know a higher number will cost them more money in pollution controls, would rather hold the line. Local governments worry about increasing costs, but are treading lightly.

Let’s evaluate theĀ  italicized quote: “environmental groups and tribes want cleaner water, and thus are interested in seeing the numbers go up.”

Will more stringent water quality standards result in cleaner water? I don’t think so.

To understand if the current efforts to promulgate more stringent water quality standards will result in environmental benefit, one needs to understand the nature of the chemicals at issue. In general, these chemicals are bioaccumulative in nature, with the biggies being PCBs, dioxins, mercury, polycyclic aromatic hydrocarbons (“PAHs”) and phthalates.

Here is the issue with all of these contaminants: because of past efforts to ratchet down point-source emissions, many of them are now non-point source based. So, controlling discharges of this class of contaminants can be difficult, and using fish consumption rates to ratchet down water quality criteria is unlikely to result in real-world water quality changes.

Let’s use PAHs as an example:

In Washington, PAHs end up in aquatic systems either through aerial deposition and runoff, through direct deposition to aquatic systems, or through leaching of creosote pilings. Here is a summary of sources taken from Washington’s just-released PAH Action Plan:

What you can see from this graphic is that PAHs are predominantly from sources that cannot be controlled under traditional end-of-pipe measures. So, reducing the allowable levels of PAHs in surface waters by ratcheting down those levels through increasing fish consumption rates won’t ratchet down the actual levels of PAHs in surface waters. What will happen–at least in the case of PAHs–is that discharge requirements will become more stringent–but without any real benefit to the environment because the types of discharges regulated under NPDES permits are not the types of discharges that are the main sources of PAHs. Regulatory compliance becomes more expensive without any real benefit–and society loses resources that could be better put into use elsewhere.

This analysis holds true for many of the persistent bioaccumulative pollutants. PCBs, for instance, are largely non-point sourced, particularly the atmospheric background from China. Mercury has some relatively minor local sources, but much of the atmospheric signature is derived from global sources beyond the scale of Washington and beyond the reach of the Clean Water Act (coal combustion, forest fires, cement production, and crude oil processing, for instance). A similar case can be made for dioxins, because those chemicals are largely derived from waste incineration.

I think the current efforts to adjust fish consumption rates with the goal of promulgating lower water quality standards is an extremely inefficient way of addressing the problems posed by persistent bioaccumulative compounds. The reality is this really is nibbling on the edges of a larger issue. If you take some time to read the PAH Action Plan, you’ll see that the regulatory actions recommended by Ecology and the Department of Health are largely preventive in nature, and don’t discuss using the water quality regulatory framework as a solution. So, there seems to be a bit of a disconnect between that plan and Ecology’s fish consumption rulemaking. I can’t help but think that broader regulatory reform that is better aligned with modern environmental issues is a more efficient solution than trying to use a 40-year-old regulatory framework that really wasn’t designed to address these emerging issues.

Stay tuned. My next post on this subject will be looking at how this regulatory effort will impact cleanup of aquatic sites.