WA water quality standards for toxics not adequate to protect human health
NWEA filed a petition with EPA today asking that the EPA Administrator make a formal “determination” pursuant to the Clean Water Act that Washington’s water quality standards for toxics are not adequate to protect human health or aquatic life. Such an Administrator’s determination would trigger a requirement that EPA step in and establish Washington’s water quality standards for the state.
Interestingly enough, EPA did this for Washington in 1992 – over two decades ago – when it established the National Toxics Rule (NTR). The federal rule has covered Washington’s water quality standards for toxics to protect human health ever since. Despite EPA’s having subsequently completely changed the assumptions about how much fish eat, and therefore how strict the standards need to be, EPA has never updated the NTR for Washington. Even after having disapproved Oregon’s and Idaho’s recent attempts to use the new national average fish consumption levels instead of tribal data, EPA has not updated the NTR for Washington.
In contrast to EPA’s inaction, the Clean Water Act requires that states update their toxic criteria every three years – a change made in the Clean Water Act in 1987 to reflect Congressional concern about the slow pace of improving toxics controls. This applies to the human health criteria that are based on assumptions of fish consumption. It also applies to criteria that are intended to protect aquatic life, such as threatened and endangered species, which have not been updated since Washington adopted them in 1992.
Despite Congress’s clear requirements, both EPA and the Washington Department of Ecology have ignored the law. And Ecology has been mired in indecision, political concerns, and who knows what for the last 15 years. It first issued a report in 1999 explaining some of its options in light of what had become known about high fish consumption by members of some Indian tribes. But here we are 15 years later and while Ecology appears to be moving ahead oddly it’s not making much progress. There certainly is no end in sight to its complicated process.
The petition asks EPA to make the formal determination or to affirm that it has already made one, in the event that the plaintiffs in the recently-filed Puget Soundkeeper v. EPA case are correct. The combination of the petition and the lawsuit together essentially says that EPA has already made an Administrator’s determination but if it hasn’t, it needs to. Either way, there needs to be an end to this process and if the state can’t bring it to a conclusion, it’s EPA’s responsibility to do so.