Washington's new toxics criteria

If you have not yet seen the press, yesterday, EPA issued its final rule revising water quality standards for toxics in Washington. This finalizes the draft rule published more than a year ago, and comes on the heels of the lawsuit brought against EPA for not finalizing that rule in a timely fashion. It also comes on the heels of Washington submitting its own water quality standards to EPA for approval under the Clean Water Act this past August. So, the action by EPA is two-fold: first, it finalized its own rule that will be applicable in Washington (replacing the National Toxics Rule), and second, it approved and disapproved parts of Washington’s submittal. The net result is one new, comprehensive set of water quality standards that will form the basis for permits issued in Washington under the Clean Water Act.

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I have written extensively on the efforts by the Washington Department of Ecology to revise Washington’s Water Quality Standards to account for a higher fish consumption rate. This summer was when we were supposed to see the final rule be submitted to EPA for review and possible approval. In a nutshell, the controversy around this rule has to do with the upward revision in the fish consumption rate used to calculate Washington’s Water Quality Standards. That revision (from 6.5 grams per day to 175 grams per day) would result in more stringent WQS for many toxics—with the fear among dischargers being that those new criteria would be unattainable. Governor Inslee’s proposed solution—now over a year old—was to revise the excess cancer risk rate used in the WQS calculation from one in a million to one in one hundred thousand, and then couple the revised WQS with a package of regulatory efforts designed to address toxics from diffuse sources.

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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

Yesterday afternoon, Judge Coughenour issued his decision on the summary judgment motions in the lawsuit brought by Earthjustice on Puget Soundkeeper‘s behalf. The motion alleged that EPA Region 10 violated the Clean Water Act by not promulgating revised water quality criteria for Washington that account for higher fish consumption rates.

The case broke just about how we predicted it would when it was filed back in October. Judge Coughenour’s thoughtful opinion concluded that he lack subject matter jurisdiction to consider Puget Soundkeeper’s challenge because the emails and letters sent to Ecology by EPA that which Puget Soundkeeper did not amount to a “determination” under Section 303(c)(4)(B) of the Clean Water Act that Washington’s water quality standards were inadequate, which would have triggered a non-discretionary duty by EPA under the CWA to promulgate new regulations. Because there was no non-discretionary duty that EPA had failed to fufill, Judge Coughenour concluded he lack subject matter jurisdiction and dismissed the case without prejudice.

Judge Coughenour spends a significant amount of his opinion analyzing the four communications between EPA and Ecology relied upon by Puget Soundkeeper in arguing EPA had a non-discretionary duty to promulgate water quality standards for toxics in Washington. If you have time, his analysis is worth the read, it begins on page three of the order issued yesterday.

In sum, he concluded that these communications did not amount to a Section 303(c)(4)(B) “determination” because:


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