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

Ecology Releases Preliminary Draft Rule Adjusting Washington’s Water Quality Standards to Account for Higher Fish Consumption Rates

Posted in Clean Water Act, Emerging Policy, Fish Consumption, Geeky Science Stuff, Public Health Policy, Water Quality

As directed by Governor Inslee back in July, the Washington Department of Ecology released a preliminary draft rule that will ultimately lead to the amendment of Washington’s Water Quality Standards for toxics. This is the next step in a multi-year process under which Washington is adjusting its WQS to account for a higher fish consumption rate. The documents released today include:

1. Draft rule language for toxics;

2. Draft rule language for implementation tools, such as variances, intake credits, and compliance schedules;

3. A preliminary draft cost benefit and least burdensome alternative analysis;

4. A memorandum explaining why the proposed rule is exempt from the requirement under the Regulatory Fairness Act to prepare a Small Business Economic Impact Statement (because Ecology has concluded that the proposed rule amendments do not impose cost on existing businesses in any industry);

5. A preliminary implementation plan after the rule is adopted;

6. An overview of key decisions made in the rule amendments; and

7. A SEPA determination of significance and scoping notice.

The rule language for the toxics criteria is consistent with what we’ve expected, and covers 96 total chemicals. The new fish consumption rate under the proposed rule is 175 grams per day, and the excess cancer risk changes from one-in-a-million to one-in-one hundred thousand. And, consistent with Governor Inslee’s announcement in July, where the application of these new variables results in a greater numeric criterion as compared to the old WQS for toxics (the values in the National Toxics Rule), the new criterion will default to the old NTR number, which, as characterized by Ecology, means that there will be no new standards that are less protective of human health as the old standards. The three exceptions to this framework are arsenic, copper and asbestos, all of which will have new criteria based on the Safe Drinking Water Act. In addition, the rule has a narrative criteria that address chemicals not included on the list of 96 for which numeric criteria are proposed.

The implementation tools are also what we expected. Those tools include a new section that allows for intake credits that account for pollutants already present in water that are simply passing through a permitted facility; a new definition and rule language related to compliance schedules, which deletes the current ten year limit on such schedules (consistent with recent changes to RCW 90.48.605 made by the legislature); and new rule language defining a “variance” and establishing minimum qualifications for granting variances to individual dischargers.

However, what caught my eye in all of the above documents was the draft cost-benefit analysis. One of the main controversies surrounding this process was the potential for new criteria based on a higher fish consumption rate to cause many dischargers to not be able to meet the revised standards, for instance, municipal dischargers projected that standards based on the 175 gram per day rate (and an excess cancer risk of one in a million) would have resulted in unattainable standards for many municipal wastewater treatment plants. Governor Inslee’s proposal back in July to adjust the excess cancer risk upward by a factor of ten was in response to these types of concerns. The draft cost-benefit analysis contains a detailed analysis of the projected impacts on a number of permitted dischargers, and concludes that, of the 415 (183 industrial and 232 municipal) permit holders in Washington, none would be impacted. The draft cost-benefit analysis also concludes that 55 waterbodies will be listed as impaired under Section 303(d) of the CWA (which leads to the development of Total Maximum Daily Loads or “TMDLs”) as a result of the adoption of the new WQS, but 50 of the 55 waterbodies did not have NPDES permitted dischargers on them–leading Ecology to conclude that only three dischargers would be impacted by the change in 303(d) listings.

Ecology also looked at the benefits to fish consumers associated with the new rule. This is sure to be a controversial subject during the comment period that opens in January. Ecology went through an exercise where it calculated that the new rule would result in cancer risk reductions valued at $6 million to $90 million (related to reduced mortality from cancer) and reduced treatment costs of $400 thousand to $2 million. These benefits, according to Ecology, far outweigh the costs of the rule.

The public comment period for the proposed rule opens in January, timed with the legislative session, where the Governor will be pursuing a broader agenda to address toxics in the environment from sources not regulated by the Clean Water Act. We’ll keep reporting on developments as they come up.