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Science, Law & the Environment Emerging Topics in Environmental Law

Ecology Files Fish Consumption Rule: What has Changed from Draft Language, and How has it Been Received?

Posted in Emerging Policy, Environmental Risk, Fish Consumption, Legislation, Public Health Policy

On Monday, right at the start of this year’s legislative session, Ecology filed its proposed rule that will–if adopted–result in adoption of new Water Quality Standards in Washington that account for high rates of fish consumption in this state.

What has changed as compared to the preliminary draft rule?

Not much, and nothing of substance. I count a few places where “all” has been replaced by “any,” and some minor editorial corrections. But, essentially, this is the rule that was announced in a draft form back in September.

How has it been received?

About as expected. Puget Soundkeeper, one of the plaintiffs in the failed attempt to get a court to order EPA to promulgate Water Quality Standards filed a little over a year ago, issued a statement noting that it was “entirely unacceptable” that the draft rule increased the cancer risk rate from one in a million to one in one hundred thousand. The Northwest Indian Fisheries Commission reacted similarly, tweeting an article from the Yakima Herald quoting Jim Peters of the Squaxin Island Tribal Council as part of a series of tweets on Monday and Tuesday:

Ecology’s answer to these arguments is probably best encapsulated in Maia Bellon’s statement that accompanied the preliminary draft rule language:

We’ve heard a lot of concerns that we are allowing a higher input risk rate for cancer. We recognize that it’s confusing, but the actual risk is not higher,” said Bellon. “What matters to people and fish is not the formula but the outcome – it’s less about the complex formula going into the standard and more about the level of pollution coming out of the pipe. And the end result is that most standards are more protective and, with the one exception of naturally occurring arsenic, no standard is less protective than today.

The regulated community’s responses have been neutral to positive. Peter Jensen’s piece on the draft rule at the Washington State Wire contains a good summary of the reactions from the regulated community.

What is next? Ecology will be holding a series of public hearings across the state between now and the middle of March, and will be accepting written comments from the public up until March 23rd. After that, we can expect the rule to be submitted to EPA for its review and approval–although the timing of that submittal may be impacted by how much progress the Governor makes with his legislative efforts to non-Clean Water Act regulated sources of toxics to Washington’s waters.