Posted on July 9, 2012 by Kevin Beaton
The criterion to protect human health found in state water quality standards under the Clean Water Act are getting more stringent in the Northwest. This is occurring because people in the Northwest supposedly eat more fish from Northwest waters than other parts of the country. The esoteric standard setting process to protect people from toxic pollutants in surface waters is premised upon numerous risk based assumptions which include the amount of surface water an average person consumes combined with the amount of fish consumed from such waters. The more water and fish people consume the more stringent the criteria becomes. EPA establishes national defaults for states to use in their human health standard setting process for both water ingestion and fish consumption rates (“FCR”). The national recommended FCR is 17.5 g/day. A detailed description of the standard setting process can be found in EPA’s Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (2000).
Until recently, use of the EPA default FCR was acceptable in the Northwest. However the state of Oregon recently adopted (and EPA approved in 2011) a FCR ten times higher than the national default. The principal driver behind Oregon’s change was a FCR study funded by EPA in the 1990’s that evaluated the FCR of members of a number of Northwest Tribes in Oregon, Washington and Idaho. See A Fish Consumption Survey of the Umatilla, Nez Perce, Yakima, and Warm Springs Tribes of the Columbia River Basin (CRITFC 1994). The CRITFC study showed that Tribal members consumed much higher rates of fish.
In May 2012, EPA disapproved Idaho’s human health criteria in Idaho’s water quality standards which were based on EPA’s national recommended default FCR. EPA disapproved Idaho’s standard because the state did not “consider” the CRITFC study. (Idaho believes it did consider the CRITFC study.) EPA also questioned whether Idaho’s standards were protective of Oregon’s downstream standards. Idaho now has 90 days to respond to EPA’s disapproval. Meanwhile the state of Washington is in the process of reevaluating its human health standards and FCRs. Whether this trend moves into other states or other EPA regions remains to be seen.
One might legitimately ask whether this issue is nothing more than an academic exercise amongst toxicologists and risk assessors. Ultimately the answer to that question is found in the Clean Water Act itself. Roughly calculated, increasing the FCR ten times equates into the criteria for many toxic pollutants becoming ten times more stringent. Under the Clean Water Act NPDES Permit limits must be established to meet these new criteria. Under the new standards adopted by Oregon some of the toxic pollutants that are likely to present particularly challenging compliance issues for permittees will include mercury, PCBs and arsenic, as the presence of these pollutants are somewhat pervasive in Northwest waters. In most instances, requiring permittees to implement costly pollution controls to attempt to achieve the new criteria at the end of the pipe will have minimal affect on achieving the new stringent standards in the receiving waters. In light of EPA’s recent disapproval of Idaho’s standards, the state must now decide if it needs to amend its criteria or conduct its own fish survey statewide. Untested legal issues are raised by EPA’s disapproval like whether a state must establish a state-wide FCR based on a very small percentage of the population or because a downstream state (Oregon) has decided to adopt more stringent criteria. Like many increasingly complex issues under the Clean Water Act, these issues may have to be settled in federal court.