It appears that a decade-long battle to establish allowable levels of toxic chemicals in Washington state’s waterways may finally be over. Strict toxic standards, first imposed on the state in 2016 by the Environmental Protection Agency, seem to have prevailed.

Primary chemicals of concern in the long battle over human health criteria include polychlorinated biphenyls, a group of compounds largely outlawed  in the United States but continuing to persist in the environment. PCBs are believed to cause problems for many aquatic species, including salmon and killer whales, and they raise serious health concerns for people who eat a lot of fish.

The Association of Washington Business, which claims to be the state’s largest statewide business association, sued the EPA in 2023 for overriding what the organization insisted were perfectly reasonable limitations approved by the state Department of Ecology. At the same time, the AWB and other business groups said the EPA’s criteria for PCBs were not reasonable and represented a violation of the EPA’s authority, as I described in Our Water Ways in November. In that post, I reflected on what were hot topics at the time — from fish-consumption rates and cancer risks to the regulatory process and costs of protecting human health.

Cost has always been a driving factor in this debate. EPA’s toxic standards could require costly upgrades to industrial facilities and sewage-treatment plants across the state at a cost of billions of dollars, opponents have argued. In fact, concentrations of PCBs specified by the EPA in water are so low that they cannot even be measured by the most advanced analytical equipment in use today. That does not alleviate concerns about bioaccumulation — the tendency to build up higher concentrations in human and animal tissues.

After the EPA overrode the state’s toxics criteria with its own, the issue went back and forth, influenced in part by whatever presidential administration — Obama, Trump or Biden — was in charge of the EPA at the time.

This whole issue of toxic standards to protect human health goes back well before 2012, when the Department of Ecology came under increasing pressure from the EPA to adopt state water quality criteria that would protect consumers of contaminated seafood caught in Washington waterways.

In 2016, Ecology adopted a rule listing 188 standards for 99 chemicals. The EPA approved 45 of those criteria but supplanted 143 others with stricter limits.

In 2019, during the first Trump administration, the EPA reversed direction, granting a petition from industry groups to adopt the original state standards. By then, Ecology no longer supported those standards.

In 2021, Joe Biden, as incoming president, asked the EPA to review all recent actions not based on science. The agency returned to the stricter EPA standards, which prompted the lawsuit from AWB and four other business groups that challenged EPA’s authority to impose stricter standards than state regulations — which remained on the books but without effect. Six other business groups joined the case as intervenors.

The final chapter in this saga began when Ecology formally adopted EPA’s stricter standards “to provide durability and regulatory certainty.” Changing state regulations with an endorsement from the EPA allowed the Washington state code to become the official water quality standards for the state.

By then, the state had joined the federal lawsuit as a defendant along with five local tribes. These defendants asked the court to dismiss the case, saying there were no longer any differences between state and federal standards, so there is nothing left to dispute.

“This case is moot,” declared U.S. District Judge Dabney L. Friedrich in a written order signed March 19, “because under the CWA (Clean Water Act), the plaintiffs are subject to Washington’s state human health criteria — not the federal criteria promulgated in the 2022 rule that plaintiffs challenge in this action.

“As the CWA provides, once EPA determines that a revised or new state water quality standard meets the requirements of the CWA, ‘such standard shall thereafter be the water quality standard for the applicable waters of that state.’”

Attorneys for the business groups argued that the EPA never formally withdrew the criteria that supplanted the state criteria in 2016, so the EPA standards should remain applicable and subject to challenge. But the judge declared that the revised state standards are now in play and will remain so until a time when the EPA adopts standards more stringent than the state’s. Of course, Ecology always has the option of updating state standards as needed, subject to EPA approval.

So far, I have been unable to determine if the business groups consider this matter closed or if they intend to appeal the court dismissal. Jason Hagey, vice president of communications for AWB, said he had nothing to add to this blog post. It is also hard to know whether this issue might come back in some form, as the EPA is now under control of a second Trump administration, which has pledged to role back all sorts of regulations.

Officials at the Department of Ecology consider the case closed, and they have been incorporating the human health criteria into various water quality permits issued by the agency. As for the PCB criteria, with 7 picograms per liter being lower than measurability, the agency has adopted a “point of compliance” set at 65,000 pg/l, according to Ecology officials. This means that this will be the effective limit for facilities until laboratories improve their capability of analyzing PCBs at extremely low levels.

Since PCBs accumulate in the tissues with the highest concentrations at the top of the food web, PCBs remain a concern for residents of Puget Sound. State health authorities have issued advisories for people who eat fish from some areas of Puget Sound. For specific locations, check out the map of advisories.

Editor’s note: This article was produced with funds provided by a grant from the U.S. Environmental Protection Agency that supports the operations of the University of Washington Puget Sound Institute.  This article is not intended to represent the views of that agency or any of its employees. The Agency does not endorse nor take a position on the content of the article.