Washington Department of Ecology Caters to Big Business

Raises Cancer Risk Rates Under Preliminary Water Quality Plan

On the heels of lobbying by big business, the Washington State Department of Ecology has proposed a preliminary draft rule for water quality standards that could continue to undermine ecological health, tribal treaty rights and environmental justice by raising the risk rates for cancer among fish consumers in Washington State.

The new rule, announced September 30, comes as part of the state’s ongoing review of its default fish consumption rates and other factors used to establish water quality standards under the Clean Water Act.  The state uses such tools to set the amount of pollution that can be discharged into water bodies under state-managed permits. Higher fish consumption rates, for instance, require more stringent water quality standards; lower rates allow more pollution and increase risks to human health. While these policies shape water quality for everyone in the state, they disproportionately affect communities that consume more fish. In Washington State this includes Indian Nations, Asian and Pacific Islander communities, and recreational fishers.

The Department of Ecology’s preliminary draft rule would raise default fish consumption rates (FCRs) from an extreme low of 6.5 grams per day to 175 grams per day (about one serving per day).  While this represents an improvement, it remains well below estimated rates for high consumption communities and their high-end fish consumers. One study, for instance, found mean consumption rates of 214 grams per day for Suquamish tribal members and 90th percentile rates above the proposed level for Squaxin Island (206 g/day) and Tulalip (193 g/day) tribal members.  Upper percentile consumption rates for recreational fishers are estimated at between 200 and 250 grams per day. Ninety-fifth percentile Japanese and Korean fish consumption rates for finfish and shellfish are estimated at 188 and 230 grams per day, respectively. These populations, and their higher-end consumers, would be inadequately protected under the proposed rate. [1]

More troubling, however, the state’s preliminary proposal would offset potential water quality gains by simultaneously raising the cancer risk rate for fish and water consumers from one-in-one-million to one-in-one-hundred-thousand. The agency casts this change as “confusing” and based on a “complex formula,” assuring the public that “most standards” under the new rule “are more protective” and “no standard is less protective.” While it may be the case that many rates will improve incrementally under the new rule, this description does not fully describe the effect of the proposal. The formula – which is not that complex – includes fish consumption rates in the denominator (the bottom of the fraction) and cancer risk rates in the numerator (top of the fraction). The result is predictable. On the whole, any gains achieved by decreasing pollution discharges from higher fish consumption rates are offset 10-fold by increasing the cancer risk rate. A comparison between Governor Inslee’s plan (essentially that proposed by DOE) and one implemented in Oregon (which set FCRs at 175 grams/day, but kept a one-in-one million cancer risk rate) unsurprisingly demonstrates that allowed levels for most carcinogenic pollutants would be at least 10 times higher under the proposed Washington rule. [2]

The state’s proposed rule also provides for companies to apply for variances (temporary exemptions) by claiming an inability to meet water quality standards for economic or technical reasons. The Department of Ecology announced plans to issue a formal draft rule in January 2015.

Ecology’s movement on the issue came after decades of efforts by tribes to call attention to inadequate default rates. This dates back to at least a 1994 study by the Columbia River Intertribal Fish Commission documenting higher rates among member tribes. The Department’s decision came after repeated warnings by the Environmental Protection Agency that its rates were too low – though the federal agency has continued to allow Washington to drag its feet on the issue. The EPA is ultimately responsible for approving, or disapproving, Washington DOE’s decision, or otherwise insuring that rates are protective of treaty fishing rights, environmental justice and ecological health.

DOE’s proposed higher cancer risk came after lobbying on the issue by some of the state’s major industries. The agency’s preliminary rule mimics a proposal by Democratic Governor Jay Inslee. Inslee’s proposal followed lobbying by Boeing, Weyerhaeuser, the Packaging Corporation of America, Schnitzer Steel and municipalities such as Renton and Everett. Companies and business associations pressing the DOE on cancer risk rates included Weyerhaeuser, the National Council for Air and Stream Improvements, Inc. (forest industry) and TransAlta Centralia Generation LLC (energy, including a coal-driven plant). [3]

Allowing higher cancer risk rates in the calculation of water quality threatens to undermine tribal treaty rights and environmental justice in the state. When tribes ceded the land base of Washington State to the United States through treaties, they reserved a long-existing right to continue "taking fish" in their "usual and accustomed" fishing places. This right is undermined when water contamination limits tribes’ ability to fish for subsistence, cultural and commercial purposes. Degraded water quality also undermines environmental justice when communities of color – such as Indian Nations and Asian and Pacific Islander communities – are disproportionately harmed by fish contamination because they consume higher quantities of fish. In a recent report titled No Justice on the Plate, Borderlands Research and Education documented that companies opposing higher water quality standards in Washington State specifically attacked this environmental justice principle. [4]

Conservative and far right groups in the state joined big business in opposing higher fish consumption rates.  This included prominent think tanks such as the Evergreen Freedom Foundation and Washington Policy Center as well as the lesser-known Citizens Alliance for Property Rights, an Issaquah-based group that promotes far right conspiracy theories.  Such groups have not yet responded to the preliminary draft rule. According to Brandon Housekeeper of the Association of Washington Business, that group is reviewing the proposed rule before commenting. [5] Housekeeper is a former Policy Analyst for the Washington Policy Center –best known for proposing conservative budgets and attacking organized labor. While with the WPC, Housekeeper supported extending tax-like fees on tribes under a state gaming compact.

Tribes and environmental groups have criticized the hike in cancer risk rates, also taking the agency to task for taking so long to move on an issue that has long impacted Northwest communities.  The Northwest Indian Fisheries Commission has previously disagreed with proposals to raise cancer risk rates.  Referencing the higher cancer risk rate, Squaxin Island Tribal Council member Jim Peters told the Associated Press, “That’s just not acceptable for our tribe, for any tribe in the state or anybody who eats a lot of fish.”  Chris Wilke of the Puget Soundkeeper Alliance told the AP, “This is backsliding, and even if the numeric standards stay the same…They’ve created loopholes." [6]

The Environmental Protection Agency has a responsibility to ensure adequate protection of water quality in Washington State under treaties between the United States and tribes, federal regulations addressing environmental justice and the Clean Water Act. Should the Department of Ecology propose standards inadequate to protect all communities in the state, the agency must meet its obligation by setting those standards itself. Addressing this issue is long overdue.