Yesterday, following quickly on the heels of Governor Inslee’s withdrawal of Washington’s version of the fish consumption rule, EPA released draft water quality standards for toxics for Washington. These standards, if adopted, are significantly more stringent than those Ecology had proposed.
By way of background, the core issue that emerged over the last two years is the attainability of water quality standards for toxics based on a high (175 gram per day) fish consumption rate. Governor Inslee’s proposed solution was to adopt standards applying that rate, but to also adjust the excess cancer risk used to calculate the standards from one in a million to one in one hundred thousand. Coupled with a broader toxics reduction strategy (that failed to make it through the legislative session this year), this approach had the support of the regulated community, although it was meeting significant resistance from tribes and environmental organizations.
How does EPA’s proposed rule compare to Ecology’s version? Like Ecology did in the draft rule, the EPA rule also applies a 175 gram-per-day consumption rate. The most significant change is the return to a one-in-a-million cancer risk, rather than the one-in-one-hundred-thousand risk level proposed by Ecology. Ecology’s rulemaking process had identified three problematic toxics: PCBs, arsenic, and mercury. Ecology’s approach to these chemicals was to retain the previous NTR value, or 0.00017 micrograms per liter for PCBs, adopt the Safe Drinking Water Act regulatory level of 10 ppb for arsenic, and to defer development of a mercury criterion until a comprehensive mercury rule could be developed.
Comparing the EPA and Ecology approaches to these three toxics illustrates the dramatic difference between the two rules. EPA’s proposed criterion for PCBs is 0.0000073 micrograms per liter, or 23 times more stringent than the criterion proposed by Ecology. EPA’s criterion for arsenic is 0.0045 micrograms per liter, more than 2,000 times more stringent than Ecology’s proposed criterion. And, EPA is proposing a methylmercury fish tissue criterion, something that would have been adopted at a later date by Ecology. That criterion is 33 parts per billion, a number that likely is exceeded state-wide in waters—at least based on these data from Ecology that show total mercury in fish well above 33 parts per billion state-wide (with methylmercury likely accounting for a large fraction of total mercury in fish).
Other chemicals received similar treatment. The marine criterion for zinc under Ecology’s draft rule was 2,900 ppb, under EPA’s it is 540 ppb. This may cause issues for entities that discharge stormwater to marine waters in Washington, like Puget Sound. The dioxin criteria under the EPA rule set at .00000000059 micrograms per liter (parts per billion) versus 0.000000014 micrograms per liter under Ecology’s rule. There are a lot of zeros to the right of the decimal point there, but to translate, that equates to 0.00059 parts per quadrillion for EPA’s draft rule versus 0.014 parts per quadrillion for Ecology’s rule. Stated differently, EPA’s proposed criterion for dioxin is 23 times more stringent than Ecology’s proposed criterion, and Ecology’s draft rule for dioxin was already incredibly stringent and hard for dischargers to comply with for several reasons.
EPA projects that 406 facilities will be affected by this new rule, as shown in this table:The economic impact of revisions to Washington’s water quality standards was a huge topic of debate during Ecology’s rulemaking process. As I discussed a while back, the Association of Washington Businesses concluded that compliance with criteria like the ones now proposed by EPA would come at significant costs to municipal rate payers, with doubt that such stringent standards could be met. EPA’s proposed criteria for arsenic is even lower than the one in the AWB study and, in that study, the AWB concluded that compliance with a 0.018 microgram per liter criterion (four times higher than what EPA is proposing) was unlikely for municipal dischargers.
Despite the concerns raised during Ecology’s rulemaking process, EPA has concluded that the annual compliance costs for this rule are on the order of $13 million per year for all major dischargers in Washington. This number is much lower than other estimates, and will certainly be a point of much debate.
What is next? EPA will publish the proposed rule in the Federal Register, and that will trigger a 60-day comment period. It is still possible that Washington could promulgate its own standards instead of EPA promulgating these to be applied in Washington—and EPA acknowledges that it would take a pause in this current rulemaking to evaluate an Ecology rule if it is submitted to EPA during this process.