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Published on Thursday, November 14, 2013

Ecology rolling out initial proposals for fish consumption rate and water quality standards rulemaking

Governor Inslee convened his second informal advisory group meeting on the fish consumption rate water quality standards issue on November 8. The issue has taken on even greater priority now as it was announced that a “balanced and practical” solution to the fish consumption issue was part of the state’s share of the deal to keep Boeing’s 777X manufacturing in the state. This announcement raised many questions about whether there was a new plan to address the issue but Governor Inslee assured the advisory group, which includes Bellingham Mayor Kelli Linville representing cities, that there was no side-deal with Boeing. He expressed his and the Boeing Company’s confidence that this group and the official rulemaking at the Department of Ecology would result in that balanced solution.

The bulk of the meeting was a presentation from Ecology similar to what they provided the public on November 6, where they laid out their current thinking on a number of the decision points within the rulemaking. We continue to appreciate the Governor’s engagement and deliberations on this difficult topic.

In summary, we are still in a difficult position with the direction this rulemaking is going. It appears that all of the options presented so far would result in standards for some difficult toxics that are unattainable by available technology, at any cost. Recognizing this, Ecology is proposing a series of “implementation tools” to bridge the gap until technology does become available. Cities and others continue to express concern that these implementation tools must be better than what is on the table right now.

Ecology is heavily relying on long-term variances but the state has never approved a variance and EPA has never approved any of the time frame that Ecology is proposing. We need these implementation tools to be rock solid, because if they do not work we will be stuck with a standard that cannot be met while having a legal obligation to meet them. That is an untenable position for the hundreds of communities around the state who may be affected by this rule. We will continue to explore creative approaches to ensure that solid implementation tools are actually in place simultaneously with any new standards.

It’s not all bad however, for some of the most difficult chemicals (PCBs, Mercury, Arsenic) Ecology is proposing alternative approaches that may make these standards more feasible. These approaches range from chemical specific risk levels, statewide variances and matching drinking water standards for Arsenic. We appreciate the work that the Department is putting in to try to find that balanced and practical solution, and remain committed to working through this process to find a responsible outcome.

If you are following this issue in more detail, some additional specifics on the direction of Ecology include:

  • A fish consumption rate between 125 and 225 grams a day (as compared to the current standard of 6.5)
  • A risk level for high consuming populations of either 10-5 or 10-6. This choice will have the single largest impact on the ending water quality standards. The debate around risk goes right to the heart of why this issue is so important to all of the affected parties and is a difficult set of discussions. Ultimately both options are meant to represent effectively zero additional risk, but the formulas do not work with risk set at actual zero. The selection between them is highly controversial.
  • There is a lot of detail involved and individual chemicals could vary from this, but in general the combination of those two factors alone would represent an increased stringency of water quality standards of between two and thirty nine times more stringent for particular toxics.
  • Ecology is not inclined to spend significant effort looking at other elements of the formula (in addition to consumption rate and risk level) that generates the human health standard. So items like body weight and the daily consumption of untreated surface water are not proposed for significant review. Ecology argues that these elements of the formula have relatively small impacts on the ending standard compared to consumption rate and risk level.
  • Salmon consumption is proposed to be included at 100% in the fish consumption figures. Many have argued that because salmon pick up a portion of their toxic load from outside Washington that they should be discounted in the formula in some way. Ecology ran the numbers across species of salmon and concluded that such a reduction would only result in a 15-20% reduction in stringency in the standard. They feel that it is not worth the controversy to consider that approach. We are interested in whether several of these “small” impacts (salmon, body weight, drinking water) might together result in a significant impact on the end standard. If so we encourage Ecology to continue to consider these approaches.
  • Up to 20-year compliance schedules for facilities to meet the standards at the end of the schedule. Remember that this is only an option for facilities that will be projected to actually meet the standard at the end of the 20 year period. This tool is not effective in a situation where the standard itself is unattainable.
  • Up to 40 year variances, temporary waivers of the requirement to meet the water quality standard. This could be facility specific or focused on a water body or even the entire state. Currently these variances are issued for up to 5 years – but Washington State has never actually issued a single variance and the appetite for EPA to approve the more expansive variances is unclear. The proposal is also not to issue the variance at the time of the standard, but instead the “recipe” for how the state will approach granting variances. The actual variance would be promulgated in a separate rule at a later date. This creates a lot of concern that we may see an unattainable standard set and then have the variance fall through or be invalidated by the courts.
  • On a positive note, for non-carcinogen chemicals, Ecology is proposing a relative source contribution of one. What this means is that discharge standards would not be artificially increased in stringency to account for pollution sources outside of a discharger’s control (like from the air, food or other sources).
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