What comes next under water-quality standards imposed by the EPA?

The Environmental Protection Agency approved new water-quality standards for Washington state this week, overriding a plan approved by Gov. Jay Inslee and the state Department of Ecology.

It was a rare posture for the EPA. Now the state will be pressured to appeal the EPA standards to federal court. Cities and counties as well as some industrial organizations are clearly unhappy with the EPA’s action, while environmental and tribal representatives got most of what they wanted.

The basic structure of polychlorinated biphenyls, where the number and location of chlorine atoms can vary.
The basic structure of polychlorinated biphenyls, where the number and location of chlorine atoms can vary.

The EPA action is especially unusual, given that this state is known for some of the strongest environmental regulations in the country. After much dispute, Ecology finally agreed to much higher fish-consumption rates without increasing the cancer-risk rate, leading to more stringent standards for many of the chemicals. But Ecology had its own ideas for the most troublesome compounds with implications for human health. They include polychlorinated biphenyls (PCBs), arsenic and mercury. For background, see Water Ways, Oct. 18, 2015.

Some news reports I saw this week said EPA’s action will lead to salmon that are safer to eat. But that’s not at all certain, and opponents say it is unlikely that the revised limits on chemical pollution will have any practical effect on compounds that affect human health.

One of the most obvious outcomes will be to declare almost every body of water in Puget Sound as “impaired” for PCBs unless Ecology changes its approach under the Clean Water Act. Currently, the agency measures PCBs in fish tissue and infers the level in marine waters. That’s because PCBs are lipophilic (fat soluble) and their levels in water are very low and difficult to measure.

Having nearly every water body listed as impaired for PCBs does nothing to clean up the water. It provides no money for source reduction or cleanup plans. But the impaired list does imply that something should be done. With most chemicals, the answer is to go to the source of the pollutant and demand that the discharger reduce the pollution. Sewage-treatment plants might track down the upstream source — such as a business — and require less pollution going into the sewer.

PCBs are different. They break down very slowly. Most of the PCBs in Puget Sound have been circulating for some time in the food web, accumulating at their highest concentrations in fish and top-level predators, such as seals and orcas. PCBs come back around when predators die and decompose. That allows PCBs to be taken up by smaller organisms and start working their way back up to higher animals.

PCBs were banned in the 1970s, but they can still be found in various products sold before the ban, such as caulk used to fill cracks in buildings and pavement. Most of the new contamination comes from stormwater, although some comes through sewage-treatment plants. PCBs are still produced in relatively low levels in the manufacture of pigments and dyes, thus they end up in new products such as paints, inks, colored markers and pigmented chalks.

A new study by Ecology (PDF 9 mb) looked at PCB levels in more than 200 consumer products and found numerous materials that are probably releasing PCBs into the environment. Current EPA regulations allow PCBs in products up to 50 parts per million — a number that may need to be reduced even more to ultimately bring PCB levels within a healthy range.

The newly approved EPA limit for surface water is 7 parts per quadrillion, which is 1,000 times smaller than 7 parts per trillion. This level cannot be measured with current technology, making enforcement very tricky. Ecology proposed a limit of 170 parts per quadrillion, the same as the previous limit but still undetectable with normal methods.

“There is no wastewater-treatment technology available today or in the reasonably foreseeable future that can treat to the levels that EPA has adopted,” said Chris McCabe, executive director of the Northwest Pulp and Paper Association.

Water-quality standards provide a basis to set pollution limits in federal permits. The concern among cities and counties, as well as industry, is that they will be required to upgrade their treatment systems to meet the new standard. The costs will be tremendous, yet far more PCBs will keep flowing in with stormwater washing over the land.

“The sad irony with EPA’s policy is that they are still allowing large-scale PCBs into the environment,” McCabe told me. “Under TSCA (the Toxic Substances Control Act), they let this stuff into the environment, then they are tagging the permittees at the end of the pipe with cleaning them up.”

The new standards provide for “implementation tools” that would allow for variances, additional time for compliance, or “intake credits” to exempt industrial plants from cleaning up certain pollutants to concentrations lower than what is in the source water coming into the plant.

“The EPA has said, ‘We are going to give you these tools to comply with the law,’” McCabe said. “Our point has been, ‘Don’t set up a system that is so stringent that we have to rely on these implementation tools.’”

McCabe is worried that the implementation tools might not even comply with the Clean Water Act. Some environmentalists have spoken out against these strategies, saying they are just a way to get around the more stringent standards.

McCabe said he wants people to know that industry is not opposed to stricter standards if they can be met. But if an environmental group files a lawsuit over the implementation tools, dischargers could be left with a no-win situation.

“What EPA has given us,” he added, “is a big litigation nightmare.”

Besides PCBs, another chemical that poses problems for Washington state is arsenic, for which EPA has approved limits lower than background levels — even lower than levels allowed in drinking water, according to Ecology officials. The agency had proposed adopting the drinking-water standard for surface water.

The EPA also imposed a new standard for methylmercury, replacing the total mercury standard used before. Ecology wanted to defer action on methylmercury to provide time to develop a state-specific standard along with a strategy to deal with the new approach. But EPA moved ahead with the new limits, leaving Ecology with lots of questions.

McCabe said his organization is trying to figure out what options it has for dealing with the new standards. “We strongly think that the state should appeal this,” he said.

Rob Duff, the governor’s policy director on natural resources, said no decision has been made about taking the issue to court.

The ultimate answer for water quality is to look at all pollution sources and find ways to reduce them, he said. It’s one thing when industrial and sewage discharges are the primary sources of contaminants, but when pollution is ubiquitous, these federal rules become an obstacle.

As you can see, the issue is complicated. While the Clean Water Act helped the country make a lot of progress in reducing pollution, the rules are not very flexible and may be drawing attention away from more serious pollution problems. For example, these standards don’t address toxic flame retardants or other chemicals of emerging concern that can affect human health and the environment.

If you haven’t seen it, please check out my latest story in the Encyclopedia of Puget Sound called “Concerns rise over rogue chemicals in the environment.”

At this point, it is hard to say what will become of these new water-quality standards and how they will be used to enforce the law. I covered the human-health implications of this issue in a two-part series I wrote last year for the Kitsap Sun:

3 thoughts on “What comes next under water-quality standards imposed by the EPA?

  1. Respectfully, this article misses the point entirely, and presents the same tired “woe as me” refrain espoused by countless polluters since before the Clean Water Act.

    The Clean Water Act mandates we issue standards based on scientifically-derived environmental and human health outcomes. Not on what is convenient or a “best effort” to comply. The point of this exercise was to decide on water quality standards necessary to protect fish consumers from toxic pollution. If the fish are too toxic to allow unrestricted safe consumption, then we have a big problem, and this is precisely where we find ourselves. Impaired waterways where it is not safe to eat fish should indeed be listed as such, and pollution should be reduced.

    The State’s approach of “We have a better idea” (source control) has already failed in the 2015 legislature. Nothing was advanced in the 2016 Legislature either. Nonetheless, this approach is still available to the State, should they want to pursue it. And, it would be completely compatible with our newly-strengthened standards which are now going to be law. In fact, a “source control approach” would be strongly supported by these new standards. Time and again, since the Clean Water Act went into effect, new standards have allowed and incentivized innovations to produce solutions to protect our waterways.

    Essentially the point being offered by the Department of Ecology and polluting industries is this: This is going to be too hard, so let’s set the standards at a level that doesn’t actually protect people, but at a level that we can achieve. And we will talk about doing other stuff too.

    This not what we are doing here. This is about protecting people, especially ethnic groups and legal entities such as Northwest Tribes that rely heavily on locally caught fish.

    Now, we have finally set standards that reflect the actual impacts of pollution on people in Washington. If there are challenges in treating water to these standards, then we can look at existing tools that allow dischargers to meet standards over time (up to 10 years if needed). And, we can also look at ways to eliminate sources of toxic pollution, which is fact what the Clean Water Act envisioned. In the preamble it states: “It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.”

    Sadly, we already have fish consumption advisories for most major waterways including Puget Sound and the Columbia River and our endangered orca whales are some of the most toxic animals on the planet due to PCB contamination.

    It is unconscionable that the same polluting industries that had such an impact on our waters for decades are now effectively lobbying the State to act in their behalf.

    It’s time we stopped treating our waters as repositories for toxic waste. Setting strong scientifically-based limits is the first step to doing that.

    1. If the standards were truly based on science, there would be no argument. But the standards come from a formula that includes at least five major factors — and every one of them is determined by assumptions involving policy decisions, not science.

      For example, the fish-consumption rate of 175 grams (6 ounces) per day comes from studies about how much salmon and shellfish are eaten by Native Americans, who are fairly large consumers of seafood. But we know that some Native Americans eat up to 450 grams per day. So why don’t we set standards to protect these people as well? That would result in a more stringent standard.

      On the other hand, the assumption in the equation says people eat 175 grams per day of fish contaminated at the upper limit of pollution. Most of this is salmon. And most, but not all, salmon grow to adult size in the ocean, so they don’t have nearly that level of contamination. So if the actual cancer risk were adjusted for fish that are actually eaten, the standard would be less stringent.

      We can do the same for each factor, making the standards higher or lower based on various assumptions. One could make the standards for each chemical 10, 100 or 1,000 times more stringent and it would not make the fish any safer to eat.

      The answer is to clean up the pollution. If the fix is not at the end of a pipe, then the work must be done in the watersheds, where stormwater originates. That work is underway, although much more needs to be done.

      Now that the water-quality standards are in place, lawsuits could be filed against the government for allowing this new level of pollution. That might get the Legislature to bring more money to bear on the problem. It might also lead to confusion and divert money away from other serious pollution problems — perhaps those involving chemicals of emerging concern, which are not even covered by the Clean Water Act.

      I may be missing the point, but I sincerely hope that we don’t come to regret where all this is heading.

  2. When the EPA designates my stormwater ditch which channels water from my road to the bay as a stream, I’m all for gutting this agency. They have gone too far… I love how the tribe dictates these policies but don’t have to abide by them.

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