Culminating more than a decade of fierce debate, Washington state officials formally adopted new water-quality standards for toxic chemicals to protect the health of people who eat fish from our local waterways.
On its face, this action appears inconsequential, considering that these numerical criteria were already in place, having been imposed two years ago by the federal Environmental Protection Agency. The EPA criteria are now influencing permits that control discharges of toxic pollution from pipes — such as from industrial operations and sewage-treatment plants.

Still, this formal adoption of “human health criteria” by the state marks an end to an era — or so I thought. After covering the effects of water pollution for more than 30 years, this seemed like a good time to reflect on the vigorous dispute over fish-consumption rates, cancer risks, regulatory processes and the costs of protecting human health from toxic chemicals in the water.
But wait! This story is not over yet. A lawsuit filed against the EPA over these pollution limits is finally due for a decision. All the old players are waiting anxiously for a judge to decide if the EPA — and now the state Department of Ecology — have made reasonable choices. Even if the judge sides with the EPA and Ecology, the case is likely to be on appeal when President Donald Trump returns to office with a pledge to overturn regulatory controls within the EPA.
The disputed water-quality standards, first imposed upon Washington by the EPA in 2016, were overturned once before — in 2019, during Trump’s first term in office. They were reinstated in 2022 by President Joe Biden’s administration. But what happens next remains uncertain, given the lawsuit and Ecology’s adoption of the EPA standards for the stated purpose of bolstering the “durability and regulatory certainty” of these water-quality criteria.
Tribal officials continue to play a central role in the debate, arguing that native people consume relatively large amounts of fish and shellfish in their traditional diet, putting them at higher risks of cancer and other effects of toxic pollution that gets into fish. In general, tribal leaders have expressed approval of the state’s recent adoption of the EPA rules.
Seattle attorney Cory Albright, representing five Western Washington tribes, has been defending, in the current lawsuit, EPA’s approval of more stringent water-quality standards.
“Due to toxic contamination, Washington’s waters are blanketed by fish advisories warning the public not to eat — or to severely reduce consumption of — fish from the state’s waters in order to avoid cancer and other diseases,” states his brief in federal district court. “Polychlorinated biphenyls (PCBs) drive many of these advisories…
“The current toxic pollution levels, particularly levels of PCBs, force tribal members to make the terrible choice between continuing their traditional subsistence fishing to the detriment of their health or forgoing exercising their treaty-protected fishing rights to the detriment of their diets, livelihoods and culture,” the brief states.
PCBs are a class of oily chemicals once used in building materials and electrical equipment. Although PCBs were banned in 1979, they persist in the environment and can still be found in outdated products. They are allowed in low levels in pigments used in inks and paints. The chemicals pose various risks to human health, from developmental problems in children to an increased risk of cancer.
Representatives of paper mills and other industrial dischargers who filed the lawsuit contend that the approved regulatory limits for PCBs “are so stringent that compliance cannot even be measured, much less achieved.”
“In the end, EPA’s arbitrary assumptions produced absurd standards that fall below even background levels of the relevant pollutants in many water bodies, rendering Washington’s communities and businesses powerless to comply,” according to the legal complaint filed by Helgi Walker, an attorney representing the Association of Washington Business, the Northwest Pulp and Paper Association and three other trade organizations.
“As a direct result of EPA’s unlawful action,” the complaint continues, “plaintiffs’ members will incur billions of dollars in additional compliance costs and endure regulatory uncertainty that disrupts their investment-backed reliance on EPA’s longstanding prior policies.”
With briefs from all the parties now in hand, a ruling from U.S. District Judge Dabney Friedrich appears imminent.
Striving for cleaner water
The federal Clean Water Act of 1972 governs all forms of water pollution, including toxic contaminants. In 1992, the EPA adopted human health criteria with numerical limits for 91 “priority toxic pollutants” that applied to 14 states that had not developed their own water-quality standards. Washington was one of them.

Human health criteria are important because they establish chemical concentrations in public waterways that are considered protective of people who eat fish and shellfish. Such criteria are used in permits to restrict the amount of pollution discharged from pipes and to prioritize other cleanup actions for polluted waters.
In 2012, with the 1992 standards long outdated by new information, EPA was pushing the states to develop their own standards. That’s when the Department of Ecology announced that it would move forward with new criteria specific to Washington. Most experts at the time agreed that the existing criteria were inadequate to protect human health, partly because health-risk calculations assumed that people were eating just 6.5 grams of fish per day. That’s about one meal of fish per month — far less than actual fish consumption, particularly for residents of coastal states, according to studies.
Two years later, in 2014, Gov. Jay Inslee proposed legislation designed to tackle pollution at its source, arguing that water-pollution standards alone could not adequately address human health concerns. Inslee said more attention should be focused on widespread stormwater pollution, and he noted that “chemicals of emerging concern,” such as pharmaceuticals and flame retardants, were not even on the list of regulated chemicals. The governor suggested that addressing all pollutants could soften the blow for industrial facilities and sewage-treatment plants that would be forced to upgrade their facilities under new pollution standards.
Actions on new human health criteria were delayed until the Legislature could act on Inslee’s all-pollutants proposal. In the end, the governor’s bill failed to gain support from the business community and never made it out of the Senate, dying at the end of the 2015 legislative session. Ecology officials continued their work on new water-quality standards.
In September 2015, EPA officials warned that their agency would be forced to adopt new human health criteria for Washington if the state failed to act. Nearly a year later, in 2016, the Department of Ecology finalized 188 new standards for 99 chemicals and submitted the new criteria to the EPA for approval. The EPA, which had drafted its own standards for Washington by that time, approved 45 criteria but supplanted 143 others with stricter limits.
The basic formula for determining the safe level of a chemical in water includes multiple factors — from the toxicity of the chemical, to how much the chemical accumulates in fish, to the amount of fish that a person eats, among others.
The previous fish-consumption rate of 6.5 grams per day, or about one meal of fish per month, was upgraded to 175 grams, or nearly one meal of fish per day, in both Ecology’s and EPA’s formulas. Tribal officials argued that native people generally eat more fish than that, but they accepted the number as a compromise. Industry saw it as costly overkill.

In the formula, the increased fish-consumption rate alone reduces allowable pollution levels by a factor of 27. To offset the effect of that change, Ecology initially chose to increase the allowable cancer risk for PCBs by a factor of 10 — from one additional case of cancer for every million people to 10 additional cases in a million for those exposed to the chemicals.
Other changes affecting the numerical criteria include an increase in an average person’s body weight, plus new information on toxicity and bioaccumulation in fish tissue for each chemical. With the increased cancer rate and other changes, 70 percent of the chemicals on Ecology’s list were assigned new criteria that were more protective of human health. But for the other 30 percent, including PCBs, the formula resulted in less-stringent standards. For those chemicals, the governor chose to retain the 1992 numerical criteria to avoid increasing health risks for people exposed to those chemicals, as I reported in 2015 in the Kitsap Sun.
In rejecting the state standards, the EPA returned to the previous cancer risk of 1 in a million for all chemicals. For the highly contested PCB standards, the result was a concentration in water of 7 parts per quadrillion (.000007 micrograms per liter), which is 24 times lower (more stringent) than the 170 ppq first proposed by the state.
The EPA’s revised criteria for Washington state became effective in December 2016. The following February, after President Trump took office, Northwest Pulp and Paper Association and other industry groups submitted a petition asking EPA to restore Ecology’s original, less-restrictive criteria. The EPA had usurped state authority in overriding the state’s human heath criteria, the petition said, and the chosen EPA standards were arbitrary and produced no significant public-health benefits. After an 18-month delay, EPA informed the petitioners that their proposal was being considered.
Maia Bellon, Ecology director at the time, said the state opposed reopening the issue, preferring to focus on implementing the new EPA standards. In May 2019, the EPA reversed course and approved all but two of the original state standards. By then, the EPA standards had been in effect for more than 2½ years.
The following month, a lawsuit was filed by Washington Attorney General Bob Ferguson, later joined by the Sauk-Suiattle and Quinault tribes, to block the EPA from reversing course.
“Trump’s EPA cannot change important water-quality protections at the whim of industry interests,” Ferguson said in a press release. “It’s not only disruptive to Washington’s environmental efforts over the past two years, it’s a clear violation of the Clean Water Act. We keep beating the Trump Administration in court, and we haven’t lost yet. I don’t plan on starting now.”
When President Biden came into office in January 2021, he directed agencies to review recent actions that might have been made without regard to science. The court delayed proceedings and later dismissed the state’s case after the EPA reversed course again in 2022, saying the 2016 state standards adopted by the EPA in 2019 were not sufficiently protective of human health, and reinstating EPA’s more stringent standards.
Today’s state of affairs
About three weeks ago, on Nov. 27, the Department of Ecology cemented into place its agreement with EPA’s more stringent human health criteria by codifying the EPA standards into a formal state rule. The result is that all the water-quality standards can be found in state regulations, so people don’t need to hop over to federal rules, according to a focus sheet from Ecology.

“Also, this change will help provide durability and regulatory certainty for pollution limits that were set to protect human health, including for vulnerable populations, from the harmful effects of toxic substances,” the focus sheet states.
The plaintiffs in the lawsuit objected to Ecology’s move, saying “Ecology provides no substantive rationale or explanation to support its proposed action, which reveals that the singular purpose of this effort is to provide a strategic advantage to EPA in defending the federal standards in federal court.”
If the EPA approves the rule, then the federal government would not be able to revert to the state’s 2016 human health criteria, according to Vince McGowan, water quality program manager for Ecology.
Under the Clean Water Act, the EPA can intervene under two conditions, McGowan said. One is when a state submits revised standards that fail to meet requirements of the law. The other is when the EPA determines that a new or revised standard is necessary to comply with the law.
Asked how the ongoing lawsuit filed by industry might change the situation, McGowan declined to comment on issues related to litigation, as did several other people representing industry and tribal interests.
Would the court be able to impose the state’s less-restrictive 2016 criteria, considering they no longer exist in state regulations? Could a new administration settle the lawsuit by agreeing to the less-restrictive standards, as occurred in 2019? The latter question was raised in the state’s 2019 lawsuit against the EPA, and it remained unresolved when the case was dismissed after the EPA adopted the more stringent criteria for a second time.
Environmental groups are preparing for the return of the Trump administration, which has pledged to roll back environmental regulations. Specific priorities are yet to be announced, but Project 2025, published by the conservative Heritage Foundation and offered to Trump as a guidance tool, says EPA officials should immediately identify rules to be “stayed and reproposed,” and they should approve petitions to revamp existing rules.
Mindy Roberts, Puget Sound Program director for Washington Conservation Action, an environmental group, said it appears that most of EPA’s programs are under threat.
“The Trump administration … falsely pits public health against economic prosperity,” Roberts said in an email. “Society should not sacrifice public health so a few greedy people can make more money. The federal threats are all the more reason for Washington to focus on regulatory protections for people disproportionately impacted by pollution, and toxic pollution in particular.”
The status quo does not sufficiently protect the health of people who consume fish and shellfish, she said. While pollution controls can increase costs to industry, the effects of pollution include all sorts of human health problems, with those costs borne by individuals and all of society.
“Cleaning up toxic pollution can take decades,” Roberts added, “but in our region we’ve seen improvements, such that new places are opening up for fishing and shell-fishing for the first time in generations. That’s thanks to strengthening human health criteria.”
The newly adopted state criteria do not alter Ecology’s efforts to implement identical standards last approved by the EPA in 2022. Specifically, Ecology is moving ahead with pollution-discharge permits under a program called the National Pollution Discharge Elimination System (NPDES). Even though the pollution limit for PCBs is 7 picograms per liter, the effective limit is 65,000 picograms per liter, because that is the lowest level that can be detected using standard methods and instruments.
As stated by federal attorneys in the current lawsuit: “For the PCB criteria, EPA reasoned that there should be no increased compliance costs because, pursuant to EPA’s NPDES regulations, permit compliance is determined using the EPA-approved method detection limit. And for PCBs, that detection limit of 65,000 pg/L exceeds both the prior criteria of 170 pg/L and the Final Rule criteria of 7 pg/L.
“In other words, under either the 2016 or Final Rule’s criteria, the method detection limit of 65,000 pg/L establishes the point of compliance for an NPDES permit… And while future technological improvements may allow detection of lower levels of PCBs and potentially higher compliance costs, EPA reasoned that treatment technologies could also improve and reduce such costs.”
Discharge permits are issued every five years, and the latest water-quality standards for all listed chemicals are incorporated into permits as they come up for review, said Ecology’s Vince McGowan. For PCBs, most permits will describe the standard of 7 pg/L but list 65,000 pg/L as the current “point of compliance.” Any exceedance of that level is considered a water quality violation. Over time, as new monitoring techniques are adopted, the point of compliance is expected to decline.
Upon renewal, each permit addresses actions to reduce the release of contaminants that exceed the approved water quality standard. For sewage-treatment plants, which don’t produce chemicals but pass through a portion of the chemicals coming in, that often involves decreasing pollution at its source as well as implementing new removal technologies.
“We work with each permittee on how they can comply with the requirements in their permits,” McGowan said. “For example, if a permittee needed to install new technology or replace PCB-contaminated pipes to meet a new limit in their permit, we work with them on the timeline for when these changes will be made.”
Specific legal challenges
In the current lawsuit, the Washington Association of Business and four other trade groups have challenged the current rules as a violation of the federal Administrative Procedures Act, the Clean Water Act and the Regulatory Flexibility Act. The lawsuit contends that the 2019 rule, which returned to the state’s less-stringent 2016 standards, was the proper decision.
Specifically, the legal complaint says that the high fish-consumption rate of the Native American population should not be used to represent the general population of the state when setting pollution limits. Less than 1 percent of the state population likely consumes 175 grams of fish per day, the number used to formulate the pollution limits, according to the plaintiffs.
In response, the federal attorneys said Ecology developed the fish-consumption rate for the original 2016 standards using a “representative average of highly exposed populations.” That included tribes, Asian Pacific Islanders, recreational and subsistence fishers and immigrant populations. The goal was “to ensure protection of all consumers in Washington.” Because the figure was based on sound methodology, EPA has upheld the rate of 175 grams per day from the outset.
The complaint from the industry group contends that the EPA should not have overturned the state’s proposed PCB cancer-risk rate of 10 additional cases in a million, because it was fully consistent with federal guidelines. The Clean Water Act grants authority to states to adopt their own standards, except when state standards fail to protect public health, the document states.
The EPA’s defense for restoring Ecology’s previous rate of 1 in a million was that the change was “outcome driven” and designed to reduce the impact of the more-restrictive human health criteria. Ecology never offered any reasonable rationale for increasing the cancer risk related to PCBs, which are known to have “particularly harmful characteristics,” including the tendency to remain in the body longer than other pollutants, EPA attorneys argue.
Another objection, according to the complaint, was that the EPA’s economic analysis of the 2022 rule “came to the incredible and implausible conclusion that the impossible target level for PCBs imposes no costs on regulated parties, despite receiving ample evidence to the contrary from those parties.…. EPA’s failure to consider the costs involved blinded the agency to an important aspect of the problem.”
A separate analysis cited by plaintiffs in the lawsuit estimated the costs of complying with the water-quality standards at more than $6 billion, because it would likely require nearly every sewage-treatment plant in the state to be upgraded to meet the standard. Costs must be considered, the plaintiffs insisted.
In response, the federal attorneys wrote that water-quality standards must be based on sound science and the protection of human health without regard to economics and costs. They argued that the courts have consistently held that the Clean Water Act allows, but does not require, consideration of costs, when setting new standards. Furthermore, because the new PCB standards are below measurable levels, no further costs would be incurred beyond those required under previous water-quality standards, they said.
Finally, the lawsuit contends that the EPA violated the Regulatory Flexibility Act because it failed to include consultation with small businesses and small government jurisdictions during the comment period, as required by law. According to the plaintiffs, the agency also failed to describe steps that would minimize the economic impact on small businesses.
Timeline
Selected events in the history of human health criteria under the Clean Water Act
1972: Congress approves the Clean Water Act, establishing a new process for regulating pollution discharges.
1992: The Environmental Protection Agency adopts the National Toxics Rule, which established human health criteria with numeric limits for 91 toxic chemicals. These standards were applied to 14 states and territories that had not adopted their own criteria. Washington was among them.
2012: Under pressure from the EPA, the Department of Ecology begins a rule-making process to update human health criteria for Washington state.
2014: Gov. Jay Inslee proposes legislation to address all sources of pollution as part of a comprehensive approach to the pollution problem. One goal is to blunt the impact of new water quality standards on industry. Ecology delays action on human health criteria.
2015: The EPA warns that it will adopt new water-quality standards for Washington if the state fails to act. Inslee’s legislation fails, and Ecology proposes a new rule with special treatment for some chemicals, including PCBs.
2016: Ecology adopts a rule listing 188 new standards for 99 chemicals. The EPA approves 45 of those criteria but supplants 143 others with stricter limits.
2017: Industry groups submit a petition to the incoming administration of President Donald Trump asking that the EPA return to the criteria approved by Ecology.
2019: Approving the petition, the EPA reverses course and approves all but two of the original state standards. State officials file a lawsuit, saying they did not wish to revert to the previous less-stringent standards.
2021: Joe Biden, the incoming president, asks that federal agencies review all recent actions not based on science. The court stays proceedings in the lawsuit.
2022: The EPA reverses course again, returning to the stricter EPA standards approved in 2016.
2023: Industry groups sue the EPA, saying the agency usurped the state authority when adopting the more stringent standards.
2024: Ecology formally adopts the EPA standards to “help provide durability and regulatory certainty.” Final legal briefs are submitted in the lawsuit, now ripe for a ruling from the federal court. Donald Trump is elected president for a second time.
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.
The article summarizes the regulatory status well, but surprisingly doesn’t get much into the science both of analyzing for PCBs, the different congeners and their different toxicities which has resulted in a different mix of PCBs in the Sound over time, The SF Bay Water Board came up with a way to reduce PCB loads from the sewage treatment plants through source control and first flush stormwater capture. Many agencies meet low standards by effluent dilution. For PCBs and other chlorinated hydrocarbons that mostly present risks thru sediment uptake. Finally, there is quite a variety in fish concentrations, and salmon and other planktonic fish are often at the low end of the risk scale. It would have been nice to see some actual fish concentrations to see if there’ been any improvement here
You make some good points. This particular blog post was not focused on the effects of any specific chemicals or group of chemicals, but I do like the idea of looking at progress. PCBs are of ongoing concern, and the Puget Sound Institute has discussed these chemicals in various articles and reports as well as in online forums. I believe the Puget Sound Partnership is scheduled to release a new “State of the Sound” report this coming year. That might be a good time to review the region’s progress on PCBs and other toxic chemicals.