Inslee Proposes New
by Bill Rudolph
Washington Gov. Jay Inslee proposed new standards on July 9 that he said will improve water quality in the state. Using the same fish consumption standard adopted by Oregon a few years ago will go a long way toward reducing toxic contaminants in the state, he said. But critics, especially Indian tribes, say he has watered down the standards to placate the state's business interests.
While Inslee's proposal calls for variances that could give businesses and municipalities years to comply with the new standards, many of the details have yet to be worked out.
Some critics say Inslee's proposal will end up setting limits for some toxins that will be too small to detect. They say it would require their water discharges to be cleaner than the water they are discharging into.
Inslee's proposal calls for raising the state's current daily fish consumption rate -- an estimate is used to help determine water-quality standards -- from 6.5 grams per day, which adds up to more than 5 pounds a year, to 175 grams (about 6 oz.) per day, the same standard adopted by Oregon in 2011. The standards are based on tribal fish consumption studies, mainly in Washington. The higher rate was chosen to make sure that folks who eat lots of finfish and shellfish are adequately protected.
But the Inslee proposal also estimates that boosting the average daily consumption rate will increase the risk of getting cancer from eating the state's fish daily for 70 years from 1-in-1,000,000 to 1-in-100,000.
"In every case where this cancer risk rate would result in less protective standards than we have today, current standards will be maintained," said a Department of Ecology statement that accompanied Inslee's announcement. "In fact, of the 96 chemicals regulated under the rule, about 70 percent will have new, more protective standards."
"This is a political decision, not one based on sound science," said Lorraine Loomis, vice chair of the Northwest Indian Fisheries Commission and fisheries manager for the Swinomish Tribe in a statement. "While a toxics control effort is needed, it is not an effective replacement for strong water quality rules and standards. We cannot continue with a pollution-based economy."
But one attorney familiar with the water quality issues said it boils down to trying to define what zero risk really is. The EPA, in its 1992 National Toxic Rule, assumed that risk levels for the general population from consuming 6.5 grams of fish per day ranged from 1-in-1,000,000 to 1-in-100,000 and would protect high consumers at a risk level of 1-in-10,000.
Previous Ecology director Ted Sturdevant said in 2012 that states generally choose the 1-in-1,000,000 or 1-in-100,000 risk level because it would protect the most sensitive populations at the 1-in-10,000 risk level.
What Inslee's proposal assumes, then, is that someone who eats 1,750 grams of fish each day for 70 years would have a 1-in-10,000 chance of getting cancer from toxic residues in fish. That would be eating five pounds a day. Arguably, in real life, a 1-in-10,000 chance is not much different than a 1-in-1,000,000 -- both are small.
A January 2013 Ecology report cited previous studies outside the state that estimated general consumers' median consumption at around 19 g/day. But critics say that includes all types of fish and shellfish, and doesn't delineate where it comes from.
Some tribal studies have estimated median consumption by their members is nearly three times that level, including one conducted by the Columbia River Inter-Tribal Fish Commission. The CRITFC study of tribal members found the median level of consumption to be 58 g/day, and about 171 g/day for the top 5 percent of participants, which adds up to about 24 eight-ounce meals a month.
In June, the International Association of Machinists and Aerospace Workers weighed in. "Such a change would significantly impact the state's ability to attract new business and new jobs," said IAM Aerospace Coordinator Mark Johnson. "Sudden and dramatic changes to the state's water quality standards would also restrict or freeze expansion plans by existing businesses, including Boeing."
Boeing has been a big presence in the scramble to boost CWA protections. For years, it has said it would have to spend hundreds of millions of dollars to reduce its toxic discharges in state waterways if water quality standards were tightened.
In June 2013, the fish-consumption rate debate surfaced in a major way during the contentious battle over finalizing the Washington state budget. For a time, Senate Republicans tried to use a proposal pushed by Boeing -- which called for the state to fund a million-dollar study by the University of Washington to develop fish-consumption rates -- as a bargaining chip in the negotiations with Democrats. But the study proposal was later dropped.
Environmentalists sued EPA last year, trying to put pressure on the state to raise its fish consumption rate. EPA had already told the state it was too low. The issue is complicated since EPA lacks the authority to mandate a particular fish consumption rate state in its standard-setting process. It's up to the states' own rulemaking process to figure out which rate to use.
A Boeing spokesman said the company supported a standard that protects human health and the environment, but allows for the growth of its business and the state's economy. But the company is concerned that if Inslee's proposal succeeds, water quality will be little improved and "and be a substantial detriment to Washington jobs and economic health."
The Association for Washington Cities was pleased that Inslee's proposal includes actions that would focus on the sources of toxic pollutants "instead of focusing solely on changes to standards for discharging entities."
In a statement, the group supported this "broader approach" because regulated dischargers, such as municipalities and industrial dischargers, are a small portion of the total water quality picture. They noted that many details need to be more fully developed. "In some senses, it is more straightforward how these proposals will impact wastewater facilities; however, significant questions remain on what this means for stormwater regulations."
Inslee has directed Ecology to issue a preliminary draft rule by September 30, and plans to submit legislation next year. Depending on the outcome, he said he will decide whether to adopt the final rule. Inslee also said he will ask the EPA to consider the benefits of the full package in determining federal approval of Washington's clean water standards, but the feds may not easily agree to any increase of cancer risk levels.
In a July 1 letter to state Sen. Doug Ericksen, chair of the energy, environment and telecommunications committee, EPA Region 10 regional administrator Dennis McLerran said there were several reasons why his agency wants Ecology to maintain the 1-in-1,000,000 risk level. First, he said it wasn't clear why it was necessary or appropriate for Washington to reduce its overall level of cancer risk protection while developing human health criteria to protect higher fish consumers, a level that's been in place for more than 20 years.
McLerran said reducing the level of cancer risk protection also raised concerns of environmental justice. "Notably with respect to many of the tribes, this approach to the cancer risk level would not advance environmental or public health protections consistent with their treaty-reserved right to harvest and eat fish and shellfish."
Lastly, he said, he supported "regional consistency" among Region 10 states and authorized tribes "particularly," when there are similarities in pollutants and associated environmental and health risks. McLerran said this is an opportunity for Washington to "join" Oregon as a national leader in setting human health criteria that protect designated uses and reflect the best regional and local data.
Toxic Contaminants and Their Effects on Salmonids by Morace, Johnson & Nilsen, Science Policy Exchange, 9/11/9
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