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Fish Consumption Battle Heats Up – Papermakers, Seattle Manufacturers Go to Court to Intervene in Water-Quality Lawsuit

The Port of Seattle -- focal point for the South Seattle manufacturing district.

The Port of Seattle — focal point for the South Seattle manufacturing district.

OLYMPIA, Dec. 23.—Washington’s battle over water-quality standards is coming to a boil as two manufacturing groups go to court to intervene in an environmental lawsuit against the federal Environmental Protection Agency. The suit would force the feds to tell state regulators they have to adopt more stringent water-quality standards – most likely rules so tough nobody can meet them.

So the Northwest Pulp and Paper Association and the Manufacturing Industrial Council of Seattle are going to war — perhaps the first of a number of business and local-government interests that will join the fray. Known around the statehouse as the “fish consumption” issue, the effort to impose more-stringent water-quality standards is triggering high alarm among manufacturers, port districts and local governments responsible for wastewater treatment facilities. But it also could affect those businesses that hold stormwater-runoff permits – and it is an issue that might play into Boeing’s decision to stay or go.

State regulators and environmental groups say the state’s water-quality rules are based on an outdated and insufficient estimate of human fish consumption. The problem is that they are talking about adopting a new estimate some 25 times higher – such a dramatic increase that it would drive new water-quality standards so stringent that no technology exists to achieve them. Even with the best available technology, an investment in the billions would likely be required – a point made clear by a study released two weeks ago by the Association of Washington Business and county and city associations that raised the specter of $200-a-month sewer bills. Yet they maintain the state’s waterways would not be made much cleaner, because there are myriad other sources of contamination no one can possibly control.

“The technology is still not there, so if we spend all this money, we’re not going to meet the standard,” said Chris McCabe, executive director of the papermakers’ association. “It is too strict.”

The lawsuit is the immediate battleground. But the court fight comes as regulators for the Department of Ecology are contemplating imposing the same rules themselves. If they adopt rules on their own, they argue it will ensure the feds don’t take matters out of their hands. Ecology plans to adopt a draft rule early next year. It is unclear whether the issue will become a matter of debate during the coming legislative session.

Fish Consumption is Central Issue

Boise Cascade's Wallula pulp mill: The pulp and paper industry would be sharply affected.

Boise Cascade’s Wallula pulp mill: Because the pulp and paper industry is dependent on water supply, it would be sharply affected.

The lawsuit was filed in October by the Seattle law firm Earthjustice on behalf of four environmental groups — the Puget Soundkeeper Alliance, Columbia Riverkeeper, Spokane Riverkeeper and North Sound Baykeeper. The suit also is joined by the Pacific Coast Federation of Fishermen’s Associations, a commercial fishing group.

The central issue is this: The state’s water-quality rules are based on an estimate of average national fish consumption adopted two decades ago, 6.5 grams a day, about a half-pound a month — the equivalent of one fish filet. Federal regulators in recent years have urged states to take a different tack, basing their estimates – and thus their water-quality standards – on the amount of fish consumed by the biggest fish-eating populations, tribal members and sport fishermen. Oregon was the first to do so two years ago, adopting an estimate of 175 grams a day, about 12 pounds a month, highest in the country. That has driven new standards for hard-to-remove contaminants like PCBs that have begun to create big problems for municipal wastewater treatment plants that are seeking to renew their permits. Industry will soon face the same trouble. The first Oregon paper mills face permit renewals next year.

Regulators in this state haven’t announced a decision about Washington’s fish-consumption estimate; at one point a year ago they were suggesting an even higher estimate might be adopted. But of late most talk has been of adopting the Oregon standard. The reasoning has been that state action might keep the EPA from stepping in.

Ecology officials are correct when they say the feds have been putting pressure on the state to adopt higher standards. The lawsuit cites a number of letters from EPA officials to the Department of Ecology over the last three years. Last June, regional administrator Dennis McLerran told Ecology director Maia Bellon, “the best available science includes evidence of consumption rates well above 6.5 grams per day among high fish consumers and shows that that the human health criteria currently in effect for clean water purposes in Washington are not sufficiently protective.”

But for all the letters that have gone back and forth, the feds have not issued a finding that the old national toxics rule is inadequate, nor have they ordered Washington to adopt new standards. The letters themselves cannot be considered a directive. That’s where the lawsuit comes in.

Would Force EPA’s Hand

The lawsuit asserts that Washington is out of compliance with federal standards — an arguable point. Janette Brimmer of Earthjustice, lead attorney in the lawsuit, points out that it doesn’t seek to impose a particular figure for fish consumption – it just argues that the state ought to adopt a higher one, and that the EPA needs to compel the state to do it. “The state has known for a very long time that the fish consumption standard is not protective – in fact it exposes not just these [high fish-consuming] populations but the entire population,” she says. “There are very few people in the state of Washington that eat less than a fish meal per month, and that is what the rate is set at now. If you eat more than that, you are exposed to unhealthy levels of toxins, and that is just the fact.”

It’s not that anyone can demonstrate that anyone is getting sick by eating fish. But Brimmer says that’s not the issue – regulations are based on calculations of risk, a matter of numbers. “To force citizens who are in their 50s and suffering from cancer to prove that was because they ate too much fish over the years is not how our society and our laws work. A long, long time ago the decision was made that we have got to do risk assessment and understand toxins that are in our environment and protect people from them.”

Industry and local-government concerns about cost and benefit are what Brimmer calls “back-end” issues. Arguments about technological problems and limited benefit have been sounded ever since the federal Clean Water Act took effect 40 years ago, she says; it is public safety that counts. “That is the bottom line. It is time after 40 years to stop using the waters as sewers.”

Big Worries

South Seattle, one of the state's biggest manufacturing districts.

South Seattle, one of the state’s biggest manufacturing districts.

The state also has filed to intervene in the lawsuit, and at least on one point it has a common interest with the manufacturers. Given the stand regional EPA officials have taken, they have reason to doubt that the agency will put up much of a fight. McCabe says his association is worried that EPA will simply settle the case by ordering the state to adopt new standards. Hence the motions to intervene in the lawsuit: The other parties could object to any deal between the feds and the greens.

But there are other issues that are making the manufacturers and the local governments nervous. They say the easiest work has been already been done on what is called “point-source pollution,” regulating the 500 or so industrial and municipal wastewater plants that discharge into Washington waters. If the state adopts the Oregon rules, for some of the 100 contaminants that would be affected, the state would be requiring a level of cleanliness that cannot be measured with current technology, much less attained. And effluent would have to be cleaner than the water into which it is discharged.

Further, while Ecology has not made a decision about its approach, it could also affect the 5,000 property owners who hold general discharge permits, typically for stormwater runoff. Think blacktop near a shoreline. Think public ports and big factories with parking lots. It is a huge concern for manufacturers in industrial south Seattle, says Dave Gering of the Manufacturing Industrial Council: The rules could require industrial property owners to make rainwater cleaner than when it hits their roofs. The enormous costs involved could put a damper on an industrial district that generates billions, he says, with little evidence that it would provide significant benefit to waterways or fish. Hence Boeing’s involvement in the issue. Last session it urged lawmakers to pass a budget proviso that would have delayed the Department of Ecology’s rulemaking process until impartial scientific studies of the new standards could be conducted. But the effort hit a brick wall when the administration of Gov. Jay Inslee threatened a veto.

While regulators argue that “variances” might be granted when technology is not available, it is a rather different concept than envisioned by the federal law – normally variances are granted to give time for plants to comply, with a specific goal in mind – installation of new equipment or implementing other means of reducing pollution. Decisions by regulators can be challenged in court. “If you go into this with standards that can’t be obtained or can’t be defined or aren’t known, it makes it really hard for people to comply,” Gering says. “It goes from an environmental compliance issue to a legal liability issue. The instant that number is set, somebody can sue and say you are not achieving that number. It becomes a cosmic bank shot.”

Rumblings From Beaver State

Right now manufacturers, local governments and environmental groups are meeting for roundtable discussions in the governor’s office. That’s where big-picture questions ought to be decided, McCabe says, not in the EPA or the courts. “If EPA begins taking over state decisions on important issues such as this one, where will it end?” he asks. “Why would Washington taxpayers pay hundreds of millions of dollars a year for a program that can be so easily preempted when someone doesn’t get their way?”

McCabe notes that a second lawsuit may be on the way, this one from Nina Bell of Northwest Environmental Advocates. Bell’s group filed a 60-day notice of intent to sue the EPA over Washington fish-consumption standards in February. That potential suit, still unfiled, is a bit more expansive — it contends that EPA is required to issue a finding that Washington is out of compliance with federal standards, and it raises a host of other issues. The group has filed a similar notice covering the state of Idaho. The suits aim to extend victories scored by the environmental group in Oregon, which McCabe says have paralyzed the permit-renewal process in that state.

Indeed there are rumblings of trouble in Oregon. Though that state adopted its rules in 2011, there were delays for federal approval and litigation. So the first impact was felt this year, when three big municipal wastewater treatment operations came up for permit renewals. Northwest Environmental Advocates is leading environmental groups in raising objections: Unless they meet the new standards, they argue permits should be denied. Oregon regulators now must decide whether to shut down the treatment facilities or require new technology – and there is the possibility of third-party lawsuits should the environmental groups be dissatisfied. “We don’t know of any available affordable technology that would allow us to meet the suite of contaminants that are wrapped up in the human-health-related criteria,” says Janet Gillaspie of the Oregon Association of Clean Water Agencies. Rather than mandating that wastewater treatment plants remove trace and undetectable levels of contaminants, she says the country might reexamine the way it uses chemicals. Pollution prevention is a more effective way to reduce to reduce toxins in the environment, she argues – “changing a number doesn’t do that.”