Fish Consumption Rule in flux

You may recall the controversies a few years ago when the state went through a process to update the state’s water quality rules to incorporate human health standards, commonly referred to as the Fish Consumption Rule. It was called so because an element of the formula that established the water quality standard included a calculation based on grams of fish consumed per day. The Fish Consumption Rule proposed an increase in consumption to reflect actual consumption patterns of the state’s tribal members and to protect any individual whose diet included a high level of fish.

The challenge cities faced in this effort was that the resulting water quality standards proposed were at a level that could not be met by any available technology. AWC partnered with the Association of Washington Business and Washington State Association of Counties to fund a technological assessment which determined that necessary water treatment methodologies were not available. Specifically, this posed a concern for PCBs (polychlorinated biphenyls) which are persistent toxic substances, meaning they don’t easily break down in the environment. Even though PCBs have been banned since the 1970s, they are still widespread despite decades of efforts to address the legacy pollutant. During the fish consumption rulemaking, cities and their utility customers were deemed responsible to clean up PCBs to a level for which treatment technology is not available—despite having no responsibility for their release in the environment so many decades ago.

Years of discussion and stakeholder involvement—including work groups at the highest levels including the Governor, tribal chairs, business, and municipal leaders—resulted in a balanced proposal being developed by the state and proposed to the federal Environmental Protection Agency (EPA) in 2016.   This proposal recognized the practical challenges with PCBs and other selected toxic chemicals and proposed an attainable approach that still strongly protected the people and waters of the state. Unfortunately, the EPA rejected the state’s approach and applied their own standards, the aspirational levels that were not achievable by existing technology.

Since then, the state has been operating under EPA’s new standards, trying to make them work. That effort has required the state and permittees to pursue variances—authorization to temporarily fail to meet the water quality standards. At least some of those permits relying on variances have been challenged under the federal Clean Water Act over the legality of the variance.

As the administrations changed in Washington, D.C., these standards have come under new review. The EPA has initiated a process that will withdraw the federal rule and approve the original Washington State compromise proposal. As a first step, in May the EPA reversed their disapproval of the state rule (with a few technical changes), and approved Washington’s criteria; but the federal rule has not yet been withdrawn.

Because the state is operating under two standards currently, the most stringent is being applied (i.e. the federal rule). The next step, which the EPA has initiated, is to repeal the federal rule—leaving the stakeholder-supported Washington rule as the new water quality standard.

Under these circumstances, you would expect the state and Ecology, which spent years negotiating the compromise approach, to view this as a positive step. Somewhat surprisingly, they are fighting against EPA’s effort and insisting on the higher federal standard (the standard that is not achievable with current technology). Governor Jay Inslee and Attorney General Bob Ferguson released a statement that noted:

“There is no legal basis for EPA to reconsider standards that Washington has been working to implement for more than two years in order to protect Washingtonians. We are 5-0 in lawsuits filed against President Trump’s EPA, and we continue to defeat the EPA in court because it continues to disregard legally required procedures. President Trump’s EPA does not always seem interested in protecting the environment. The attorney general’s legal team will be very carefully reviewing EPA’s proposal and we will consider all options, including bringing a legal action. The state will consider all available options to oppose this effort.”

Ecology Director Maia Bellon highlighted what the agency alleges is a breach of appropriate process for the EPA to approve the previous state proposal and rescind the federal rule.

AWC is watching and considering how to engage in this process.

The process the state undertook to develop its original proposal was indeed admirable, with years of hard work and difficult balancing of interests. At the end of that process, we arrived at a standard that we, and the state, believed protected public health. In contrast, once that approach was rejected by the then-EPA, the federal government had an abbreviated process that resulted in the water quality standards that were put in place in 2016. To conflate those two processes with very different levels of public engagement and collectively call the outcome the result of a robust and transparent process is not the case from where we sit.

We remain supportive of the state’s original proposal, which was truly created after years of difficult negotiations and balancing of public interests. That said, we are concerned about potential process fouls. It is critical that all procedural laws be followed and that all parties be appropriately consulted, including the state’s tribes.

We would welcome thoughts from cities as we prepare for the online hearing on August 28, the in-person meeting on September 25 and the final comment deadline on October 7, 2019. If your city intends to comment, please share your comments with us so we can stay informed. Information on the federal process is available here.

Although these are tough and difficult issues, both politically and technologically, we’ve shown once before the ability to find a reasonable path forward. We hope that can be found again.