Header graphic for print
Science, Law & the Environment Emerging Topics in Environmental Law

Report from Ecology’s July 22nd Meeting Outlining the Next Steps to Update Water Quality Standards

Posted in Clean Water Act, Emerging Policy, Fish Consumption, Water Quality

Ecology held a meeting at its Lacey offices yesterday to outline the next steps in the process to update Washington’s Water Quality Standards Handbook to account for increased fish consumption rates. This meeting comes on the heels of Governor Inslee’s July 9th announcement regarding his policy decisions in the issue. Yesterday’s meeting was focused on what we can expect to see in the preliminary draft rule to be released by Ecology on or before September 30, 2014.

The presentation materials from yesterday’s meeting are available here. In general, the approach that Ecology is taking in the rule-making is consistent with what was previewed by Ecology back in February, with some new twists coming out of Governor Inslee’s policy decisions and directives to Ecology on the subject. Here is a brief rundown of yesterday’s meeting:

Health criteria variables:
Ecology confirmed what we know from Governor Inslee’s briefing on July 9th. The excess cancer risk for carcinogens will be set at one in one hundred thousand in the new rule rather than the one in one million level used in the National Toxics rule; body weight is going up from 70 to 80 kilograms; the “relative source contribution” for non-carcinogens will be set at one (1) (a departure from EPA’s recommended approach as discussed in this white paper); and the consumption rate of untreated water remains at two (2) liters per day. Of these variables, the excess cancer risk is the most important one–and I’ll talk about that a bit more below.

Challenging chemicals:
Ecology acknowledged the challenges posed by arsenic, PCBs and mercury, and is affirming the approaches for these three chemicals that it put forth back in November and discussed at the roundtable meeting in February. In brief, the surface water quality standard for arsenic will set at the Safe Drinking Water level of 10 ppb to account for the high levels of naturally-occurring arsenic in Washington’s waters. For PCBs, Ecology is taking the approach of setting the excess cancer risk used to calculate water quality criteria at the dose defined by the non-cancer risk used by the Department of Health in setting fish consumption advisories–essentially truing up the DOH’s approach to fish consumption advisories with the Water Quality Standards. And, for mercury, Ecology has made the decision to retain the National Toxics Rule criteria while it waits to adopt a comprehensive mercury rule.

Implementation tools:
Ecology confirmed that it will promulgate and clarify new implementation rules such as schedules of compliance with longer or no time limits (but a new requirement to achieve compliance on the shortest timeframe possible); a similar adjustment to the variance timeframe (currently limited to five years); and the development of new rule language that allows for intake credits.

Relationship to the old NTR criteria:
As Governor Inslee noted in his policy briefing, the changes to the health criteria variables will result in numeric criteria for some toxics that are higher than the current NTR criteria applied in Washington. In this situation, Ecology is proposing to retain the old NTR criteria–essentially repromulgating those numbers in the new water quality standards.

The numbers:
Ecology presented the draft criteria in a table form yesterday. The combination of applying new variables along with the concept that the old NTR numbers represent a lower bound on changes to the human health criteria leads to a mix of more protective or the same criteria in the new standards:

As you can see from the above, a number of criteria essentially will stay the same as the NTR–but will nevertheless be considered “new” because of the adoption of those criteria by Washington through this process.

Schedule:
Two weeks ago, Governor Inslee directed Ecology to produce draft rule language by September 30, 2014. It looks like Ecology will meet that schedule. But, Ecology will not issue a rule for formal public review and comment until sometime in the winter of 2015, or more than a year from now. When the rule is issued, Ecology will also issue a preliminary cost/benefit and small business economic analysis along with a scoping notice for an Environmental Impact Statement. Given all that, it looks like revised water quality standards likely won’t be seen in Washington until the middle of 2016, unless EPA steps in and promulgates new standards or is forced to do so as a result of pending litigation.

Key takeaways:
In terms of takeaways, there are a number of issues that still need to be worked out. In no particular order, these include:

1) Whether EPA will approve of the approach of adopting the NTR criterion for a toxic that otherwise would have a higher numeric criterion under the proposed water quality standards. One member of the audience asked if this concept has been vetted with EPA yet, and the answer from Ecology is that it had not, but that the Governor has been talking with EPA Region 10 and headquarters.

2) Whether EPA would approve of the continued use of the NTR criteria for mercury. One commenter from the audience asked Ecology if EPA has indicated whether it would allow Washington to retain these criteria. Ecology staff  pointed out in response that the new WQS would not contain new criteria for mercury, and that the old NTR criteria for mercury would continue to be in force. It remains to be seen whether EPA will bless this approach.

3) Whether the timeline proposed by Ecology will cause conflicts with EPA, as the head of Region 10 has repeatedly vowed to take over this process if a rule is not in place by the end of the year.

In sum, yesterday was about what was to be expected if you’ve been following the other meetings and activities on this subject, and we now have a fairly good idea of what the draft rule language will contain. The meeting was one of the best-attended meetings Ecology has had on this subject, and there were clearly new people in the room that had just started to track this issue. I still think the devil will be in the details regarding the legislative package Governor Inslee wants to put together–and whether that is passed in the upcoming legislative session. Because that process is essentially a separate one being led by the Governor’s office, little was said by Ecology on what that legislative package may look like.