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Published on Friday, October 16, 2015

Inslee provides clarity on his new direction on fish consumption water quality rule

The seemingly never-ending saga of the state’s adoption of human health-based water quality standards, commonly known as the fish consumption rule, took another turn on October 8. If you are having a hard time keeping up, no one can blame you. As a reminder, these are the water quality standards that could become dramatically more stringent, with some stakeholders advocating for standards that literally cannot be met with existing treatment technology. Last year the Governor announced a moderate rule that cities found acceptable given the alternatives. That proposal included legislation aimed at reducing the use of toxic chemicals in the manufacture of consumer products, thereby avoiding the use of toxic substances in the first place, rather than trying to remove them from the waste stream. The Legislature declined to adopt that proposal despite a significant effort by cities, counties, and some in the business community.

Without the toxics reduction component of his proposal, the Governor announced he was pulling back on his proposed water quality standards to consider his options for moving forward. In the meantime, the Environmental Protection Agency (EPA) filed a draft rule threatening to promulgate their own standards if the state did not. That draft rule is far worse than the Governor’s original proposal because it does not contain any creative treatment of the toxins that are impossible to treat through existing and/or affordable technology.

Last week, Governor Inslee announced he will move forward with a state rule, which is incredibly important because he has shown willingness to find creative ways to make this rule work for cities. We await the details expected in early 2016, but it appears he will propose his previous rule with one major difference – he will use a more stringent risk rate. The risk rate is a measure of how much risk is posed by exposure to the level of toxins that would be allowed under the water quality standards. It’s typically measured by increased risk of cancer for the general population. For example, the Governor is expected to propose a rate that protects the general population to a one-in-one million increased risk of cancer.

Under this proposal, and potentially most critical for cities, it preserves the workable approaches on PCBs, mercury and arsenic. We appreciate the Governor’s approach on those difficult toxins. Unfortunately, the proposed risk level has the potential to present significant regulatory difficulty in the future for cities that have water quality permits for sewage treatment plants, stormwater, or other pollutant sources. It will result in standards for certain toxins being lower than we can currently measure. If our measurement techniques improve sometime in the future, we may find ourselves with an impossible regulatory challenge with standards that have the force of law. This puts cities at significant and long-term risk of third-party lawsuits and compliance challenges, with unknown ability to manage these challenges into the future.

AWC will continue to work with the state to see if there are other opportunities to ensure clean water, while presenting a viable path to compliance for cities.

Given all of the uncertainties around this issue, AWC will be preparing comments on the EPA proposal and requesting an extension for the comment period so that more cities have a chance to comment as well. At this time we recommend cities consider making comments by the November 13 deadline on the EPA Rule, even though EPA has said they prefer the state to adopt standards. This process has taken many twists and turns and it seems prudent to ensure you are on the record in all available forums.