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| PHOTO: Elaine Thompson/AP |
Regarding the new, informal advisory group process, McClure wrote: “Tribal interests and nearly all environmental groups – with the exception of Portland-based Northwest Environmental Advocates – have been boycotting the two-year Ecology 'stakeholder process' set in motion by last summer’s decision.”
Today, Nina Bell, executive director of Northwest Environmental Advocates, resigned from the stakeholder group and, in a pointed letter to Ecology Director Maia Bellon, explained why:
Northwest Environmental Advocates
June 11, 2013
Maia Bellon, Director
Washington Department of Ecology
300 Desmond Drive
Lacey, WA 98503-1274 Via E-mail only: maib461@ECY.WA.GOV
Re: Water Quality Standards Triennial Review for Human Health Toxics –
Resignation from the Department of Ecology Delegates’ Table
Dear Ms. Bellon:
It is with regret that I submit this letter of resignation from the Delegates’ Table for the
Department of Ecology’s process to establish new toxic criteria for the protection of human
health for Washington’s waters. Fortuitously, the Governor has just announced the creation of
his own parallel “informal group of advisors from tribal and local government, as well as the
business community,” a group of advisors that omits the participation of environmental
organizations. Excluding organizations that represent the health interests of Washington’s
citizens and who have expertise in the Clean Water Act and pollution control is both stunning
and insulting. From our perspective, it appears to be yet one more misstep in a process positively
beset by missteps. And it raises the question: in which of these two processes is the real
discussion going to be had?
As you know, Washington’s current water quality standards for human health are established by
the now outdated National Toxics Rule, in which toxic criteria are based on a fish consumption
rate of 6.5 grams/day. Because that fish consumption level falls well short of reflecting current
national averages or the eating habits of Washington fish consumers, including the State’s tribal
members, the Department of Ecology has been discussing updating these criteria. However, as
has been painfully revealed in recent news reports, Ecology is under significant political pressure
from pollution dischargers to both offset increased fish consumption numbers, by changing other
variables used in calculating criteria, and to create new regulatory loopholes, termed in Orwellian
doublespeak “implementation tools,” to relieve regulated pollution sources from having to curtail
their toxic discharges.
Ecology has been wrestling to create a process by which to resolve these issues and, in particular,
it has increasingly sought to avoid making policy decisions up front. In what can only be
characterized as the agency’s lurching from one approach to another, Ecology has finally settled
on the idea of a “Delegate’s [sic] Table.” This group of stakeholders is intended to serve as
something more than a series of workshops but something significantly less than a full-on
advisory committee. Various environmental organizations, Tribes, and tribal representatives
were asked to serve on this Delegates’ Table and all have either declined to serve or chose to not
attend the first and only meeting of this group, held in October 2012. That is all, with the sole
exception of Northwest Environmental Advocates (NWEA).
After thoughtful consideration, we have decided to resign from the Delegates’ Table. We do not
make this decision lightly, particularly given that our absence will leave the group without any
non-polluting participants. Moreover, we believe Ecology can ill afford to lose our Clean Water
Act expertise and experience from our intimate involvement with Oregon’s intensive process to
revise its human health standards. However, we believe that Ecology has pandered excessively
to monied interests, failed to demonstrate a serious commitment to using the Clean Water Act to
control toxic pollution, and will use the outcome of this Delegates’ Table process to justify
taking politically expedient actions. We cannot lend our name to such an outcome.
The remainder of this letter will explicate these points in greater detail, thereby illuminating
NWEA’s decision to resign, as well as to elaborate on how we think Ecology should move
forward with this important and pressing task.
Ecology’s Flawed Process
It is our view that Ecology has bent over backwards to satisfy pollution sources concerned about
having to reduce their toxic discharges to Washington’s waters. As a result, Ecology’s approach
to decision-making on this issue has been and continues to be infected by a stated desire to “push
back” on the Clean Water Act, the U.S. Environmental Protection Agency’s (EPA) implementing
regulations, and federal guidance. The passage of time has demonstrated that Ecology has
thrown open the doors to consider any and every option to decrease regulation as the quid pro
quo for increasing the fish consumption rate. This has evolved in a series of steps, starting with
Ecology’s policy decision to re-consider each and every variable in EPA’s equation that
generates toxic criteria for the protection of human health. One of these variables is the risk to
which the State will expose its citizens, a policy choice long established in Washington as a onein-
a-million risk of cancer.1 The second step in this process was Ecology’s agreement to
establish inaptly-named “implementation tools,” by which it would let permitted dischargers of
toxic chemicals off the regulatory hook.2 While considering and addressing the practical realities
of making the State’s toxic criteria more stringent is a fair topic of discussion for rulemaking,
Ecology’s ideas for regulatory relief far exceed the types of regulatory loopholes that have been
tolerated to date under the Clean Water Act. For example, while variances – which are intended
to be short-term downgrades to water quality standards – are normally 3-5 years, Ecology seeks
to institute 20-year variances. But even worse was to come.
In the October 2012 meeting, the agency made a further announcement that Ecology would leave
no stone unturned in revising policies that support its regulatory program. Specifically
mentioned were policies for determining whether Washington waters are impaired, that is
identifying those waters that fail to meet water quality standards, and the issuance of discharge
permits to toxic sources. For example, Ecology has specifically suggested removing impaired
waters from its list that were based on levels of toxic contaminants found in fish tissue but this
ignores the fact that fish tissue is the best medium in which to measure toxics because of the
technological limitations in measuring toxics in water. In short, NWEA found the sheer scope of
Ecology’s proposed regulatory rollbacks particularly shocking and disheartening.
Although eager to announce its willingness to gut the States’s water quality regulatory program,
Ecology has expressed no concomitant desire to control other sources of toxics to Washington’s
waters. An extremely superficial effort to paper over the problem of unregulated toxics was
made by a group that met a handful of times to generate a report in January 2013.3 The report
contains not a single recommendation for increased regulation of sources that Ecology does not
currently regulate and no proposals for rulemaking.4 But having produced a 30-page paper,
Ecology now perceives itself free to carry on with the task of de-regulating currently regulated
pollution sources.5
Finally, the purpose of this Delegates’ Table remains unclear, particularly in light of the new
Governor’s advisory group. At most, it appears the Ecology group will meet six times and serve
as a “sounding board” rather than an advisory committee. Because, with the exception of
NWEA, the participants are exclusively pollution sources or allied with pollution sources,
Ecology will be taking the pulse only of interests vested in an outcome that benefits their
commercial endeavors. Left out are those who represent the fish consumers and water users of
Washington, that is the vast majority of its citizens and those who bear the burden of pain,
heartache, and financial devastation of cancer and chronic diseases caused by toxic chemicals.
Moving Forward
It is NWEA’s view that the environmental and tribal representatives who have refused to
participate in Ecology’s latest lurch in the process would likely come to the table if Ecology were
willing to make policy decisions on the basis of what is best for the State’s citizens, not just its
business interests. This would be evident if Ecology first and very simply made certain major
policy calls – such as retaining the State’s current risk level for cancer – rather than throwing
everything open for change. Specifically, Ecology needs to make clear this bartering of increased
fish consumption and increased risk – the combination of which would generate a result equal to
or less protective than current standards – is a fraudulent game it is not willing to play. Likewise,
Ecology needs to, as Oregon did, settle on a fish consumption level that it believes is supported
by the evidence, rather than negotiate that level based on its regulatory implications for toxic
dischargers.
Second, having settled such fundamental matters of State policy, Ecology must make clear it
genuinely wants the community of interests to discuss regulatory solutions for dischargers that
are reasonable to all who make Washington home, not just business interests. This means an
explicit retraction of statements about re-examining and possibly overturning every single Clean
Water Act regulatory rule and policy in the State. It also means a commitment that Ecology will
reject, up front, approaches that will poke holes into the integrity of the Clean Water Act by, inter
alia, turning temporary regulatory relief into decades of noncompliance.6
Third, Ecology must commit to concurrently increase regulation of the numerous sources of
toxics – industrial, commercial, residential, agricultural, and silvicultural – that currently
contaminate Washington’s waters with limited or no controls whatsoever. If Ecology wants to
establish regulatory loopholes for permitted dischargers it must also commit to conducting
rulemaking to establish pollution controls on currently un- or under-regulated sources of toxic
pollution. There is no point in establishing new criteria if literally no pollution source is on the
hook to reduce pollution.
Finally, Ecology must commit to completing rulemaking by a date certain. And it must agree
that it will not adopt regulatory loopholes in advance of adopting new toxic criteria.
We believe these four steps would bring most of Washington’s stakeholders to the table.
However, in the absence of these actions, this entire process is at best an academic exercise.
Potentially much worse, it is one likely to move the state’s regulatory program backwards.
Conclusion
Even Ecology is likely to agree it has handled poorly the process of updating these toxic criteria.
But the problems are not limited to process. The agency has also misleadingly termed proposed
regulatory loopholes “implementation tools,” agreed to play a confidence game in which it might
increase cancer risks to eliminate any safety benefit that would accrue to the public from
increasing the fish consumption levels, and produced a fig leaf of a report to conceal its utter
disinterest in regulating currently unregulated sources of toxics, even as it seeks to let regulated
sources off the hook.
Washington citizens deserve better than this.
Until Ecology sponsors a discussion that is more than how to re-create the water quality
regulatory program to meet the desires of toxic polluters, NWEA cannot see lending its name to
the outcome. Naturally, we will continue to participate in the formal process and we hope that
our expertise in the Clean Water Act and pollution control will continue be of use to Ecology.
Sincerely,
Nina Bell
Executive Director
cc: Governor Jay Inslee
Kelly Suswind, Ecology
Melissa Gildersleeve, Ecology
Angela Chung, EPA
------------------
1 See WAC 173-201A-240(6); 40 C.F.R. § 131.36(d)(14)(iii). Washington went so far as
to urge EPA to promulgate the one-in-a-million criteria nationwide and, if it did not, to urge a
federal rule to “specifically address the issue of multiple contaminants so as to better control
overall site risks.” 57 Fed. Reg. 60848, 60867 (Dec. 22, 1992).
2 At some points in the process Ecology announced it would develop these regulatory
loopholes prior to the new toxic criteria, leaving open the prospect Washington would have an
abundance of regulatory flexibility but not even new human health protection on paper. While
the timing of these two regulatory packages remains unclear, Ecology has not agreed they will be
linked.
3 Ecology, Washington Toxics Reduction Strategies Workgroup, Toxics Policy Reform for
Washington State, January 16, 2013 at http://www.ecy.wa.gov/toxics/docs/trs_ToxicsPolicy
ReformWA.pdf.
4 The paper has 12 recommendations, the strongest being a tepid recommendation that
Ecology be given limited authority to institute bans of certain chemicals. Oddly this group’s
recommendations also include the very regulatory loopholes being discussed by Ecology as socalled
“implementation tools,” not a single one of which is intended to reduce toxic inputs to
Washington waters.
5 Ecology’s website also includes some parting thoughts from Ted Sturdevant, its former
Director, in which he states that “[t]o break the impasse, we have to ask a different set of
questions: What is the simplest, least expensive and most effective way to address the root causes
of toxic pollution?” Ecology, Conversations on Washington's Future: Clean Water, Healthy
Fish and a Sound Economy at http://www.ecy.wa.gov/about/ECOnverse05.html. He then
describes a collaborative approach to phase out brake pads with heavy metals. Mr. Sturdevant
does not explain why one example of a collaborative approach is a justification for not regulating
the innumerable sources of toxic contaminants that remain.
6 While Washington certainly can explore ideas for providing regulatory relief for
permitted discharge sources, the reality is that there are only a few acceptable methods under the
Clean Water Act: e.g., short-term variances that can be renewed, compliance schedules where
sources can commit to an effluent-certain/date-certain outcome, intake credits, Use Attainability
Analyses, site-specific criteria, and combinations thereof.
Thanks for sharing this. It's easy to cruise along and not ferret out and stay informed about the workings of our state agencies and such. While I admit to initially skimming, I will try and come back and finish!
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