EPA Region 10 just released its Record of Decision (ROD) for the Duwamish River Superfund Site. This is the next step in the cleanup process for the Lower Duwamish River, and documents EPA’s selected remedy for the site. It comes on the heels of EPA’s Proposed Plan for the Duwamish, issued in February 2013.
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
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:
Continue Reading Breaking: Judge Coughenour Dismisses Puget Soundkeeper’s Fish Consumption Lawsuit
Doug’s post on July 23 provided an excellent summary of Ecology’s webinar outlining its revision process for water quality standards (WQSs). Integral would like to point out a few more details of interest in Ecology’s approach.
Ecology indicated that it will continue to use bioconcentration factors (BCFs), which estimate concentrations in fish tissue based on