Many people thought the issue of regulating toxic chemical discharges into Puget Sound was settled when the federal government forced Washington state to use stricter criteria, but the debate may be underway once again.

By Christopher Dunagan

An unlikely disagreement between state and federal authorities over water-quality standards has flared up again. Two years ago, the Environmental Protection Agency stepped in to impose more stringent water-quality standards than those approved by Washington state. Now a petition from industry groups is causing the EPA to review its earlier stance.

For years, Washington Department of Ecology had been under the gun to update its rules to protect water quality and ultimately control levels of contaminants discharged from single pipes. Water-quality standards, based on chemical concentrations and other factors, help to define whether a waterway is healthy or “impaired” under the federal Clean Water Act.

The new human health criteria were based in no small part on assumptions about how much fish people eat — the “fish-consumption rate” — as well as other factors, including what should be considered an acceptable cancer risk for people who eat a lot of fish.

Because the diet of Southern Resident killer whales is almost entirely fish, water-quality standards also became an issue for the governor’s orca task force, which recently released recommendations to help save the whales from extinction.

During the debate over allowable levels of chemicals, Northwest Indian tribes pushed for the most stringent standards, because their members generally consumed the most fish and faced the greatest health concerns, according to Fran Wilshusen, habitat services director for the Northwest Indian Fisheries Commission. “It was a contentious discussion,” she noted.

Ecology eventually settled on specific criteria for 95 contaminants, including polychlorinated biphenyls (PCBs), a class of chemicals that accumulate in the human body with potential effects on metabolism, reproduction and immune function as well as a risk of cancer. PCBs also are implicated in the orcas’ declining health and reproductive rates. [Read more about how toxic chemicals are affecting Puget Sound’s endangered orcas.]

Using somewhat different assumptions, the EPA developed standards that were generally more stringent than what the state had proposed. Several major industry groups argued that the state standards were too restrictive, and they objected when the EPA came up with even stricter standards for 75 of the 95 chemicals — including PCBs with an approved limit 24 times lower than what the state had proposed.

For PCBs, the primary difference between Ecology’s proposal and EPA’s approved standards was the level of acceptable cancer risk: 10 in a million for Ecology versus 1 in a million for EPA, although there were also other issues involved.

For most other chemicals, Ecology used the one-in-a-million cancer risk factor, and most of the difference with EPA’s standards came from assumptions about how organisms become exposed to toxic chemicals.

Petition to revise the standards

After President Trump was elected on a promise to rein in environmental regulations, a consortium of eight business and industry groups petitioned the federal government to reverse EPA’s previous findings and approve Ecology’s water-quality standards.

The EPA standards improperly usurp state authority, claims the 65-page petition, which examines each factor used to develop the chemical criteria. “EPA has imposed on the people of the state of Washington arbitrary and capricious human health water quality criteria that will likely be devastating to our local communities and businesses,” the petition states.

After reviewing the petition, the EPA agreed in August to reconsider its 2016 approval of water-quality standards for Washington state and decide whether any changes are justified. That review process is still underway, according to EPA spokesman Mark Macintyre.

One of the arguments in the petition concerns the ability to measure contaminants. The approved limit for PCBs in fresh and marine waters is so low that a waterway could contain PCBs above the allowable limit but regulators would not know it, because current testing methods are not sensitive enough to detect them, said Chris McCabe of Northwest Pulp and Paper Association, one of the petitioners.

That’s a problem, he argued, because if someone were to develop a more sensitive test for PCBs, every sewage-treatment plant in the state would exceed the water-quality standard, he said, and every waterway would be listed as “impaired” for PCBs.

Cities, counties and industrial facilities could be faced with spending tens of millions of dollars to upgrade their equipment and still not meet the standard, McCabe asserted.

Wilshusen, representing the tribes, argues that the PCB standard should be based on an understanding of toxicity and health risks, as required by the Clean Water Act. [Read “Ten things to understand about the Clean Water Act” in the Encyclopedia of Puget Sound.] Whether the standards can be met for an industrial facility or body of water should be a separate issue, she said.

For its part, Ecology never appealed the stricter criteria adopted by the EPA, and Ecology Director Maia Bellon has written in support of maintaining the two-year-old EPA regulations, calling for consistency.

“What Washington state’s communities and businesses need the most right now is predictability, certainty and flexibility to meet clean water requirements,” Bellon wrote in a letter to EPA. “We are well on the path of providing just that. We have been engaging with wastewater dischargers since last year … striving to develop clean water permits that are both protective and practical.”

Since adoption two years ago, the water-quality standards imposed by the EPA have been incorporated into the rules used to write permits that limit the amount of pollution discharged from pipes, according to Ecology officials. So far, about one out of five individual industrial and municipal permits have been updated since the new criteria went into effect in December 2016, but any sudden changes are seen as unlikely. One reason is that discharge permits address only known contaminants, and it could take years to identify chemicals that fail to meet the new standards, officials say.

[Editor’s note: This article was produced with funds provided by a grant from the Environmental Protection Agency but is not meant to represent the views of that agency or any of its employees. The Agency does not endorse or take a position on the content of the article.]