July 14, 2014

Give Them an Inch … And They’ll Take Twenty Years

The Environmental Protection Agency (EPA) has gone to exceeding lengths to defer to states’ efforts to bring their water quality standards into the twenty-first century.  But the state of Washington has shown the perils of this deferential posture, if the goals of the Clean Water Act (CWA) are ever to be reached for our nation’s waters.  After months and years of delay, Governor Jay Inslee held a press conference this week to unveil his long-awaited plan for updating Washington’s water quality standards for toxic contaminants – standards currently premised on a fish consumption rate (FCR) derived from a 40-year-old survey of human exposure. 

Inslee’s grand plan? 

Take one step forward, two (or so) steps backward … and appeal to EPA for yet more time.

Fish consumption is the primary route of human exposure to a host of harmful contaminants including dioxins, PCBs, PAHs, and methylmercury.  The amount of fish people consume, therefore, is a key factor in setting water quality standards – the more fish people are assumed to eat, the cleaner the water needs to be to ensure that these people are not harmed by toxics in the water.  Other factors in addition to this FCR are considered by environmental agencies as they enlist a risk assessment equation to determine how much of each contaminant may permissibly be present in our waters.  For example, agency risk assessors consider the degree to which a given pollutant bioaccumulates in fish tissue; the number of years over which people will likely consume fish during their lifetimes; the bodyweight of these people; and – importantly – the level of cancer risk it will be “acceptable” to impose on these people.  The factors are determined by intertwined “science” and “policy” choices.  The call on two of the drivers in this equation – the FCR and the cancer risk level – got elevated to the governor’s office after Washington’s Department of Ecology proved itself unable to make headway in the face of vocal opposition from industry, including Boeing.

Inslee’s step forward is to increase the FCR from 6.5 grams/day – an amount that allows people safely to eat only about one fish meal a month – to 175 grams/day – an amount that would permit people safely to put fish on the table once each day.  This is well, good, and long overdue.  Oregon adopted this 175 grams/day value in its water quality standards several years ago.  Oregon’s standards rely on data, moreover, that have been available since 1994.  Washington, too, has had these data – documenting fish intake rates for local fish-consuming tribal populations in Washington and Oregon – for twenty years.  And the data have only continued to mount, with recent studies documenting fish intake by Asian-Americans/Pacific Islanders and by other Washington tribes at rates of 236 grams/day, 489 grams/day, and 800 grams/day.  Washington, in fact, had conceded some time ago that its FCR was outdated and no longer scientifically supportable; it had even gone so far as to recommend in a 2011 draft document that a more scientifically defensible rate for the state would fall between 157 and 257 grams/day – but this recommendation was withdrawn at the behest of industry.  So, 175 grams/day is something … but it is not, as Inslee would have us think, “innovative” or cutting edge.  And it still understates by a wide margin the amount of fish that tribal people and others in Washington actually eat.

Moreover, Inslee promptly undermines any gain in protectiveness by increasing tenfold the cancer risk level deemed “acceptable” for those consuming fish from Washington waters.  Although Washington’s water quality standards have to date required that people be protected to a level of 1 in a million risk, Inslee has decided that it will now be acceptable to subject people to ten times this risk of cancer, or 1 in 100,000.  This move was suggested by industry – The Seattle Times termed it a “canny” suggestion – as a mechanism for offsetting the increase in the FCR that they recognized was likely in the offing, if the standards were to comport with the recent scientific studies of fish intake.  So, given the way that the risk level functions in the equation, what appears to be a significant step forward (an increased FCR) is nearly undermined by a significant step backward (a less protective cancer risk level).  Simple math gives the net effect:  it is as if the FCR were being nudged upward to just 17.5 grams/day – and our waters therefore only clean enough to support a fish meal every two weeks. 

Additionally, given expected changes to other factors in the risk assessment equation (an issue I have discussed before), this modest improvement will be required for only 70% of the chemicals regulated under the CWA.  For the other 30%, there will be no improvement over today’s standards – the status quo that permits consumption of just one fish meal a month.   

Inslee then takes a further step backward by offering a new slate of devices for industry to delay the time by which they must comply with the updated water quality standards.  Inslee proposes to enlist variances and other tools to allow sources to put off into the future the date by which their toxic discharges would actually have to be reduced – the precise amount of time isn’t specified, but discussions in public fora leading up to Inslee’s announcement included delays as long as 40 (additional) years.

And, then, remarkably – audaciously – Inslee wants to ask EPA for more time.  Despite a Clean Water Act requirement that states review their water quality standards every three years to determine if they ought to be updated (it’s been since 1992 for Washington); despite a recognition years ago by Washington that its FCR was indeed woefully out of date and underprotective; despite a much-criticized “pivot” on the issue by his predecessor in July, 2012 – followed by two years of various “stakeholder” processes; despite a recent “commitment” by Ecology Director Maia Bellon to formally propose updated standards by March, 2014 – despite all the months and years that have passed, Inslee now wants to hold off on promulgating standards until he sees how a broad-based toxics reduction bill (yet to be developed) will fare in the state’s 2015 legislative session.  And he hopes that EPA’s Regional Administrator, Dennis McLerran, or maybe its Administrator, Gina McCarthy, will buy what he is selling – and give Washington until sometime after the session ends next May or June or so to submit Washington’s updated standards to EPA for approval (which approval is required under the Clean Water Act).

The EPA has its own obligations as custodian of the Clean Water Act, of course, and it may be that EPA feels it can no longer credibly look to Washington to get the job done.  Under the CWA, EPA must step in and set water quality standards for states “in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements” of the CWA, among which is the attainment of the CWA’s basic goal of fishable waters.

And, as EPA Regional Administrator McLerran recently acknowledged, the EPA has legal obligations to those most impacted by Washington’s water quality standards – the fishing tribes and others who are among the highest fish consumers.  These people will be the ones to bear the increased risk that Inslee now wants to deem “acceptable” any time they exercise their fishing rights and eat fish more than twice a month.  As McLerran observed, this result is at odds with rights guaranteed in perpetuity to the tribes in treaties and other legal instruments, and it is at odds with the federal government’s commitment to environmental justice.

Back in February, 2013, I criticized what at that time seemed an inexplicable and unconscionable delay:

State and federal agencies have had contemporary tribal fish consumption data for nearly two decades now – since the [Columbia River Inter-Tribal Fish Commission] study was published in 1994. A generation of Indian people has been born and come of age during this time. They have grown up seeing signs along the waterways warning against consuming fish, encountering notices at tribal fisheries departments of toxic shellfish, and clicking on websites containing instructions for trimming the fat and discarding the skin so as to avoid the lipophilic toxics harbored there. They have been advised, in short, to alter the very lifeways that define them as fishing peoples. For this generation, justice delayed has assuredly been justice denied.         

Another year and a half has passed.  Washington hasn’t managed to update its water quality standards.  But it has issued more advisories during this time  describing the dangers of consuming local fish. 

Sadly, Inslee’s plan promises more of the same.  And while the state dithers and EPA defers – or, perhaps, wonders whether it can plausibly still do so – it is important to notice that the waters aren’t getting cleaner, the fish continue to amass toxic loads, and real people who eat fish are left to suffer cancer and other harms. Yet more delay, for these people, exacts a heavy toll.

Catherine O'Neill, CPR Member Scholar; Professor of Law, Seattle University School of Law. Bio.

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