UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 10 

Ms. Cheryl Niemi 

Washington Department of Ecology 

Water Quality Program 

P.O. Box 47600 

Olympia, Washington 98504-7600 

1200 Sixth Avenue, Suite 900 

Seattle, WA 98101 -3140 

MAR 2 3 2015 

OFFICE OF 

WATER AND WATERSHEDS 

Re: EPA's Comments on Proposed Revisions to Washington's Human Health Criteria and New and 

Revised Implementation Provisions 

Dear Ms. Niemi: 

I am writing to submit the U.S. Environmental Protection Agency's comments on the Washington 

Department of Ecology's proposed human health criteria and new and revised implementation 

provisions issued on January 12,2015. If adopted, this proposed rulemaking would revise the following 

sections of Washington's water quality standards: 

• Human Health Criteria and Other Narrative Revisions (WAC 173-201A-240) 

• Variances (WAC 173-201 A-420) 

• Intake Credits (WAC 173-20 1A-460) 

• Compliance Schedules (WAC 173-201A-510(4)) 

The EPA fully supports Ecology's efforts to adopt human health criteria, and we appreciate the 

leadership that Ecology and the Governor's Office have shown thus far in developing Washington's 

human health criteria for toxics. Over the last several years, Ecology undertook an extensive public 

process to discuss options for rule development. The EPA supports Ecology's effort to use regional and 

local fish consumption data by proposing to adopt human health criteria based on a fish consumption 

rate of 175 grams per day. As we have previously stated, the best available data includes evidence of 

fish consumption rates well above 6.5 grams per day among high fish consumers in Washington, 

including tribal members with treaty-protected rights, which raises concerns that the human health 

criteria in effect for Clean Water Act purposes in Washington are not sufficiently protective. In fact, the 

best available data indicates fish consumption rates among some tribal members with treaty-protected 

fishing rights well above 175 grams per day. 

Other elements of Ecology's rule proposal, such as its revision to the state's long-standing cancer risk 

level from 10-6 to 10-

5, do not fully reflect the best available science, including local and regional 

information, as well as applicable EPA policies, guidance, and legal requirements. Specifically, a 

cancer risk level of 10-5 does not provide appropriate risk protection for all Washington citizens, 

including tribal members with treaty-protected fishing rights, when coupled with a fish consumption rate 

of 175 grams per day or higher. By using a 1 o-5 cancer risk level, the state has substantially offset the 

environmental benefits of raising the fish consumption rate for carcinogenic human health criteria. For 
tribes with treaty-protected fishing rights, this approach to the cancer risk level will not advance health 

protections consistent with their treaty-reserved right to harvest and eat fish and shellfish. In addition, 

Ecology has not prov~ded sufficient justification for its proposed 1 o-s cancer risk level and how it will 

result in criteria that provide for the attainment and maintenance of the WQS of downstream waters, 

consistent with the EPA's regulations at 40 CFR 131.1 O(b ). Finally, in addition to the fish consumption 

rate and cancer risk level, Ecology should use the best available science to derive its human health 

criteria and, in many instances, EPA's 2014 draft CWA section 304(a) recommended criteria represent 

that information. ... · 

As a result, Ecology should reconsider certain elements of its proposal to ensure that final human health 

criteria adopted by the state provide appropriate levels of protection for all Washington citizens, 

including communities that eat higher amounts of fish, specifically tribes with treaty-protected fishing 

rights. The EPA's concerns are outlined in the enclosed comments. We remain committed to working 

with the state to ensure that the human health criteria Ecology ultimately chooses to adopt are protective 

of designated uses and based on a sound scientific rationale, consistent with 40 CFR 131.11(a). 

In addition, the EPA appreciates Ecology's efforts to consider implementation of these criteria by 

proposing new and revised implementation tools. The EPA recognizes that industry and local 

governments in Washington have raised valid concerns about the challenges of meeting more stringent 

water quality standards. We believe there is broad recognition that workable, effective implementation 

will be critical to ultimately realizing the protections that revised human health criteria are intended to 

provide. The EPA recognizes the importance of implementation tools in making progress toward 

improved water quality while accounting for the needs of the regulated community. We firmly believe 

that Ecology can adopt a water quality standards package that offers protective human health criteria 

while giving industry reasonable time to comply with more stringent water quality-based effluent limits 

through implementation tools. Such an approach can support a thriving economy while adequately 

protecting higher fish consuming populations. The EPA remains committed to assisting Ecology during 

its development and utilization of implementation tools. 

As you are aware, the EPA has initiated a federal rulemaking process to amend Washington's existing 

human health criteria in the National Toxics Rule, which were last updated in 1992. The EPA is 

encouraged that Ecology proposed its own rule and we hope that Ecology will finalize a scientifically 

defensible rule that protects the health of Washington's citizens. As stated in Regional Administrator 

Dennis McLerran's December 18, 2014 letter to Director Maia Bellon, despite our having initiated a 

federal rulemaking, if Washington submits a final rule to the EPA for Clean Water Act review and 

action prior to our completion of a federal proposal, the EPA will fulfill its Clean Water Act duty to 

review and act on the state's submittal. 

2 
As previously noted, attached are the EPA's detailed comments for your consideration. We have 

appreciated our work together throughout this process and remain committed to providing technical 

assistance as you work on revisions to this proposed rule. 

If you have any questions concerning our comments or desire the EPA's assistance, please contact me at 

(206) 553-1855 or Angela Chung at (206) 553-651.1. 

Enclosure 

Sincerely, 

dYt:fi~ Daniel D. Opalski, Director 

Office of Water and Watersheds 

3 
U.S. Environmental Protection Agency, Region 10 

Comments on Washington Department of Ecology's Proposed Human Health Criteria and 

Implementation Tools Rule 

March 23, 2015 

Public Notice of Proposal Dated January 12, 2015 

The Washington Department of Ecology (Ecology) provided draft surface water quality 

standards (WQS) revisions found at Chapter 173-201A WAC to the public for review and 

comment on January 12, 2015. 1 With these WQS revisions, Ecology is proposing to adopt 

human health criteria and revise or establish new implementation tools. The EPA reviewed the 

state's draft rule and associated documents and provides the following comments for Ecology's 

consideration. The comments are organized as follows: 

1. Human Health Criteria and Other Narrative Revisions (WAC 173-201A-240) 

A. Fish Consumption Rate (FCR) 

B. Cancer risk level 

C. Relative Source Contribution (RSC) 

D. Body Weight 

E. Drinking Water Intake 

F. Reference Dose (RID) and Cancer Slope Factor (CSF) 

G. Bioconcentration Factor (BCF) 

H. Polychlorinated Biphenyls (PCBs) 

I. Arsenic 

J. Methylmercury 

K. Pollutant Scope 

L. Downstream Waters and Other Narrative Revisions 

2. Implementation tools and definitions 

A. Variances (WAC 173-201A-420) 

B. Intake Credits (WAC 173-201A-460) 

C. Compliance Schedules (WAC 173-201A-510(4)) 

Please note that the EPA's positions described in the comments below, regarding the state's 

proposed WQS, are preliminary in nature and do not constitute an approval or disapproval by the 

EPA under the Clean Water Act (CWA) Section 303(c). Approval and/or disapproval decisions 

will be made by the EPA following adoption of the new and revised standards by the state of 

Washington and submittal of revisions to the EPA. In addition, the EPA's comments do not 

constitute, and are not intended to be, an Administrator determination under CW A Section 

303(c)(4)(B). 

1 Department of Ecology. 2015. Proposed Human Health Criteria and Implementation Tools Rule proposalpublic review. http:iNAV\V.ecy.wa.goviprograms/wgiruledeviwac 173201A!1203inv.html. 

1 
1. Human·Health Criteria and Other Narrative Revisions <WAC 173-201A-240) 

The EPA established Washington's existing human health criteria for toxic pollutants in the 1992 

national toxics rule (NTR).2 Ecology now proposes to adopt human health criteria for 96 

different toxic pollutants into the state's WQS. Ecology added these proposed criteria values to 

Table 240 in the state's WQS, which also contains aquatic life criteria. In most cases, Ecology 

calculated criteria for each pollutant using the EPA's recommended 304(a) human health criteria 

equations for carcinogens and non-carcinogens with state-selected inputs. However, in the case 

of human health criteria for arsenic, copper, and asbestos, Ecology derived those values 

differently using Safe Drinking Water Act Maximum Contaminant Levels. In addition, the 

Washington Governor's Office provided a policy overlay that no criterion conc~ntration would 

become less protective than the corresponding existing NTR criterion concentration, with the 

exception of arsenic. 3 

Below are the EPA's comments on the individual input parameters that Ecology used to derive 

its proposed human health criteria along with comments on Ecology's proposed narrative 

revisions to WAC 173-201A-240. The EPA's comments will assist the· state in developing final 

water quality criteria that. protect applicable designated uses and are based on so~d scientific 

rationale consistent with 40 CFR 131.11(a), and protect downstream WQS consistent with 

40 CFR 131.10(b). 

The EPA would like to point out three overarching themes raised in our comments: 

(1) Tribal Treaty Rights. When acting on a state's WQS submission, the EPA must ensure that 

the WQS comply with the CW A as well as any other applicable law, including federal treaties.4 

In Washington, many tribes hold a treaty-reserved right to take fish for subsistence, ceremonial, 

religious, and commercial purposes at all usual and accustomed fishing grounds and stations, 

which cover the majori~y of waters in the state. These areas cannot directly be protected by the 

tribal government and, therefore, this responsibility falls to the state and federal governments to 

ensure their protection. 5 In order to effectuate the rights that these federal-treaties afford to those 

tribes, and to harmonize those treaty rights with the CW A, the EPA and Ecology must interpret 

the state's designated uses6 to include subsistence fishing. Therefore, both the EPA and the state 

need to consider what level of water quality is necessary to allow the tribes to safely consume 

fish in light of their treaty-reserved rights. In order to protect a subsistence fishing use, the state 

2 EPA. 1992. Toxics Criteria for Those States Not Complying with Clean Water Act, section 303(c)(2)(B). 40 CFR 

Part 131.36. htto://water.epa.gov/lawsregs/rulesregsintr/. Amended in 1999 for PCBs. 

http:/ /water .epa. gov/lawsregs/rulesregs/ntrfact.cfm. 

3 Governor Jay Inslee Policy Brief. July 2014. Ensuring Safo, Clean Water for Healthy People and a Strong 

Economy: Updating Washington's Water Quality Standards to Meet Today 's Toxic Threats. http://\\f·wwdev.goventor. wa.gov/sites/default/files/policy briefs/pb Clean Water 20 14.pdf. 4 In addition to treaties, executive orders or federal statutes, such as land claim settlement acts, may also apply to 

tribal resources. 5 Note that this analysis does not pertain to trust and reservation lands, where the applicable tribe can obtain 

treatment in a similar manner to a state (T AS) status and set their own WQS, including human health criteria. 

6 As defined in Washington's WQS (WAC 173-201A-600 and WAC 173-201A-610), these uses include the 

following: Fresh waters- Harvesting (Fish harvesting); Marine waters- Shellfish Harvesting (shellfish (clam, 

oyster, and mussel) harvesting) and Harvesting (salmonid and other fish harvesting, and crustacean and other 

shellfish (crabs, shrimp, scallops, etc.) harvesting). 

2 
must adopt criteria that will protect the tribal population exercising the subsistence fishing use as 

the target general population, not as a high-consuming subpopulation of the state. The data used 

to determine the fish consumption rate (FCR) also must reasonably represent tribal subsistence 

consumers' practices unsuppressed by fish availability or concerns about the safety of the fish 

available for them to consume. In addition, the cancer risk level selected must ensure a 

minimum level of protection for that tribal target population when consuming fish at 

unsuppressed levels. If data regarding unsuppressed fish ·consumption levels are unavailable, 

consultation with affected tribes is important in deciding, among other things, which fish 

consumption data should be used and the appropriate cancer risk level. 

(2) Best Available Science. Along with using local and regional FCR data, Ecology should use 

the best available science to derive its human health criteria and, in many instances, the EPA's 

· 2014 draft 304(a) recommended criteria represents that information. If the EPA's criteria 

recommendations become final before Ecology adopts a final human health criteria rule, the EPA 

recommends that the state use that information instead of the 2014 draft criteria information. 

(3) Protection of Downstream Waters. Ecology has not provided sufficient justification for its 

proposed 1 o-s cancer risk level and how it will result in criteria that provide for the attainment 

and maintenance of the WQS of downstream waters, consistent with the EPA's regulations at 

40 CFR 131.10(b). Most ofWashington's rivers are in ~e Columbia River basin and are, 

therefore, upstream of Oregon's portion of the Columbia River. Approximately 90% of 

Washington's proposed human health criteria are higher than Oregon's 2011 EPA-approved 

criteria for the same pollutants. 7 

A. Fish Consumption Rate (FCR) 

In Ecology's proposed rule, the state derived human health criteria using a FCR of 175 grams per 

day (glday). Ecology stated that this value is representative of state-specific information and was 

determined through a process that included consideration of EPA guidance and precedent, and 

input from multiple stakeholder organizations. Specifically, Ecology stated that this value is 

representative ofFCRs for highly exposed populations that consume both fish and shellfish from 

Puget Sound waters and is considered an "endorsed" value. 8 

In 1992, the EPA used the national default FCR at that time, 6.5 glday, to derive human health 

criteria for Washington in the NTR. In 2000, the EPA updated its methodology for deriving 

human health criteria and associated 304(a) recommendations using a national default FCR of 

17.5 glday.9 More recently in 2014, the EPA updated the national default FCR to 22 g/day. 10 

7 The EPA acknowledges that Washington uses fish tissue equivalent concentrations to trigger waterbody 

impairments based on the human health criteria in their 303( d) listing methodology. 8 Department of Ecology. January 2015. Washington State Water Quality Standards: Human Health Criteria and 

Implementation Tools. Overview of Key Decisions in Rule Amendment. Page 17. 

https:/ /fortress. wa. gov/ecy/Qub lications/pub lications/ 1410058 .pdf. 9 EPA. 2000. Methodology for Deriving Ambient Water Quality Criteria/or the Protection of Human Health. U.S. 

Environmental Protection Agency, Office ofWater, Washington, D.C. EPA-822-B-00-004. 

http://www.epa.gov/waterscience/criteria/humanhealth/method/complete.pdf. 

10 79 FR 27303. Updated National Recommended Water Quality Criteria for the Protection of Human Health. 

3 
The EPA's 2000 Human Health Methodology recommends that states use local or regional data 

over the EPA's national default recommended FCR. Surveys of local residents in the Pacific 

Northwest, including tribes and recreational anglers, reflect high consumption levels offish and 

shellfish -·much higher than the national default FCR the EPA used in 1992 to derive 

Washington's currently applicable human health criteria. Ecology now has sufficient 

scientifically sound regional and local fish consumption data to consider when choosing an FCR, 

including: 

• A Fish Consumption Survey of the Umatilla, Nez Perce, Yakama, and Warm Springs 

Tribes of the Columbia River Basin (Columbia River Inter-Tribal Fish Commission 

(CRITFC), 1994). 

• A Fish Consumption Survey of the Tulalip and Squaxin Island Tribes of the Puget Sound 

Region (Toy et al., 1996). 

• Fish Consumption Survey of the Suquamish Indian Tribe of the Port Madison Indian 

Reservations, Puget Sound Region (Suquamish Tribe, 2000). 

• Asian and Pacific Islander Seafood Consumption Study (Sechena et al., 1999). 

Washington's proposal to use 175 g/day to calculate its revised human health criteria is 

consistent with the 95th percentile of the 1994 CRITFC study listed above, and is the same FCR 

that the state of Oregon used to derive its human health criteria, which the EPA approved in 

2011. 11 That said, in draft documents, Ecology considered FCRs as high as 267 g/day. 12 · 

The EPA is encouraged that Ecology is choosing to protect high fish consumers in Washington 

by deriving the state's human health criteria using local and regional fish consumption data. The 

EPA is also very supportive of the state's decision to include anadromous fish in the FCR used to 

derive the criteria, which is appropriate given the species that reside in Washington's nearshore 

and coastal waters, especially Puget Sound. Ecology's approach is consistent with the EPA's 

recommendation to use scientifically sound regional and local fish consumption data and is a 

significant improvement from the FCR used to derive the state's current human health criteria. 

That said, the EPA recognizes that fish consumption by tribes or other high consumers within the 

state may be suppressed due to issues including local availability of fish or concerns about the 

safety of the fish available for them to consume; existing data suggest an unsuppressed FCR 

would be higher than 175 g/day. 13 As discussed previously, to adequately protect the tribes' 

treaty-reserved fishing rights, the data used to determine the FCR for the target general 

population must reasonably represent consumption levels that are unsuppressed. The EPA 

11 EPA. October 2011. Technical Support Document for Action on the State of Oregon's New and Revised Human 

Health Water Quality Criteria for Toxics and Associated Implementation Provisions Submitted July 12 and 21, 

2011. http://\V'\\W.epa.gov/region 1 O/pd£'waterior-tsd-hhwgs-20 ll.pdf. 

12 Department of Ecology. Fish Consumption Rates Technical Support Document. Fmal issued in January 2013. 

Draft issued in October 2011. http:/iw,-...w.ecy.wa.gov/programs/tcp/regsitish/20 l :!/FCR-doc.html. 

13 The EPA is unaware of any data that reliably establish an unsuppressed FCR for all or part of 

Washington. However, a number of authors have reported heritage average FCRs for the Columbia River Basin 

Tribes ranging from 401 to 995 g/day (Craig and Hacker (1940) & Hewes (1947); Swindell (1942); Marshall (1977); 

Walker (1967)). Upper percentile values are not reported in these heritage studies but would be higher than the 

reported average values. The highest estimated current FCRs in Washington come from a study on the Suquamish 

Tribe, with reported FCRs as high as 1600 glday (Suquamish 2000, Table C5). The 95th percentile Suquamish FCR 

is 767 grams per day (Ecology 2013). 

4 
acknowledges, however, that the tribes within the state have generally viewed 175 g/day as a 

compromise minimum value for current criteria-setting purposes, so long as it is coupled with a 

cancer risk level of 1 o-6 (see section B). Based on the EPA's review of existing data in 

Washington, in conjunction with consultation with the tribes, the EPA supports Washington's 

decision to derive the human health criteria using a FCR of 175 g/day so long as the state also 

retains a cancer risk level of 1 o-6• A 1 o-6 cancer risk level is necessary to ensure that the target 

population of tribal fish consumers exercising their treaty-reserved rights, including those whose 

consumption is not suppressed, are adequately protected. 

B. Cancer Risk Level 

The EPA used a cancer risk level of 10-6 (1 in 1,000,000) to derive Washington's human health 

criteria for carcinogens in the 1992 NTR. The EPA selected this cancer risk level with input 

from Washington, which adopted around the same time a WQS provision that states:."Risk-based 

criteria for carcinogenic substances shall be selected such that the. upper-bound excess cancer 

risk is less than or equal to one in a million" (WAC 173-201A-240(6}}, that the EPA approved 

in 1993 .. In Ecology's proposed rule, the state derived human health criteria for carcinogens 

using a cancer risk level of lo-s (with the exception ofPCBs), which increases the cancer risk 

level from 1 in 1,000,000 to 1 in 100,000. Ecology stated that this decision is a state-specific 

risk management decision that included considerations of engineering, social, economic, and 

political concems. 14 Ecology's rationale for this decision includes that the cancer risk level for 

highly exposed populations is lo-s due to the state's decision to derive its human health criteria 

using a FCR of 175 g/day. 

The EPA's 2000 Human Health Methodology1

s states that use of 10-6 or lo-s in the derivation of 

human health criteria may be an acceptable level of risk for the target general 

population. 16 Here, the state has not demonstrated how its use of a cancer risk level of 1 o-s 

would result in water quality criteria that adequately protect tribal fish consumers as the target 

general population as opposed to a highly exposed subpopulation within the broader general 

population in Washington. For example, the cancer risk level for tribal members whose 

consumption is not suppressed (i.e., greater than 175 g/day), would very likely be higher than 

1 o- s. It should also be noted that the 2000 Human Health Methodology did not consider how 

CW A decisions should account for applicable treaty-reserved fishing rights, and the treaties 

themselves may require higher levels of protection. Therefore, the EPA supports the state's 

decision to derive the human health criteria using a FCR of 175 g/day so long as the state also 

14 Department of Ecology. January 2015. Washington State Water Quality Standards: Human Health Criteria and 

Implementation Tools. Overview of Key Decisions in Rule Amendment. Page 17. 

https:/ /fortress. wa.gov/ecv/publications/publications/141 0058 .pdf. 

15 EPA. 2000. Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health. U.S. 

Environmental Protection Agency, Office ofWater, Washington, D.C. EPA-822-B-00-

004. htto://\\'Ww.epa.gov/waterscienceicriteria/humanhealtb/method/complete.pd( 

16 The Methodology also notes that states and authorized Tribes can always choose a more stringent risk level, such 

as 10-7• Page 1-12. 

5 
retains a cancer risk level of I o-6

, which the tribes have generally viewed as a compromise 

minimum value in tribal consultation. 17 

As further discussed below in section L, Ecology also has not provided sufficient justification for 

its proposed I o-s cancer risk level and how it will result in criteria that provide for the attainment 

and maintenance of the WQS of downstream waters, consistent with the EPA's regulations at 40 

CFR I3l.IO(b). 

C. Relative Source Contribution (RSC) 

The RSC is a factor applied in development of criteria for non-carcinogens and nonlinear 

carcinogens, to account for sources of exposure other than drinking water and freshwater and 

estuarine fish consumption (e.g. marine fish, non-fish food consumption, dermal exposure). In 

Ecology's proposed rule, the state. derived human health criteria using a RSC value of I.O. 

Ecology stated that this is an appropriate risk management decision due to the limited ability of 

the CW A to control exposure to sources outside of its jurisdiction. While the EPA. commends 

some of the risk management choices that the state is making with respect to sources of 

exposure, consistent with the EPA's 2000 Human Health Methodology, the EPA recommends 

that Ecology derive its human health criteria for non-carcinogens and nonlinear carcinogens 

using a RSC value between 0.2 and 0.8. 

In the I992 NTR, the EPA did not incorporate a RSC value into the equation to derive 

Washington's human health criteria for non-carcinogens. The EPA's 2000 Human Health 

Methodology recommends default RSC values between 0.2 and 0.8 to be used in the calculation 

of human health criteria. The EPA established a ceiling of 0.8 for the RSC to ensure protection 

of individuals whose exposure could be greater than indicated by current data and to account for 

unknown sources of exposure. In the EPA's 20I4 draft updated 304(a) recommendations, the 

EPA applied a RSC for all of the updated national criteria for non-carcinogens and one nonlinear 

carcinogen. 18 

Again, the EPA commends Ecology for incorporating anadromous fish in the proposed FCR. 

This is particularly appropriate since data exist that show adult salmon in Washington can 

accumulate a substantial fraction of their contaminant body burden during their residence time in 

Puget Sound (O'Neill and West, 2009) and near coastal marine waters (O'Neill2006) that are 

under the jurisdiction of the CWA. 19• 

20 The EPA's human health criteria FAQs clarify that, 

17 In a July 1, 2014 response letter to Washington Senator Doug Ericksen from Dennis McLerran, EPA Region 10 

Administrator, the EPA provided several reasons why Ecology should maintain its current cancer risk level of 10-6, 

including the protection of reserved fishing treaty rights. 

18 EPA. 2014. DRAFT: Updated National Recommended Water Quality Criteria -Human Health. 

http:ifwater.epa.e.ov/scitecb/swguidance/standards/criteria!current/hhdraft.cfm. 

19 O'Neill, S.M., and J.E. West. 2009. Marine distribution, life history traits, and the accumulation of 

polychlorinated biphenyls in Chinook salmon from Puget Sound, Washington. Transactions of the American 

Fisheries Society 138: 616-632. 

20 O'Neill, S.M., G.M. Ylitalo, J.E. West, J. Bolton, C.A. Sloan, and M.M. Krahn. 2006. Regional patterns of 

persistent organic pollutants in five Pacific salmon species (Oncorhynchus spp) and their contributions to 

6 
where a state's FCR includes freshwater, estuarine, and all marine fish consumption, states can 

adjust the RSC to reflect a greater proportion of the reference dose being attributed to marine 

exposures.21 Therefore, the EPA recognizes that a default RSC value of0.2 could be 

overprotective when anadromous fish are included in the FCR. However, even when accounting 

for anadromous fish in the FCR, Ecology has not adequately justified using a RSC value of 1.0 

to derive human health criteria for all non-carcinogens and nonlinear carcinogens, nor has it 

adequately explained why it is appropriate to ignore all other routes of exposure, including air, 

soil, and other marine fish and shellfish. Further, the EPA considers whether there are multiple 

health-based criteria or regulatory standards for the same chemical in determining the RSC. 

Therefore, the EPA strongly recommends that Ecology choose an appropriate RSC in the 

recommended range of 0.2 to 0.8 using the Exposure Decision Tree approach as described in 

EPA's 2000 Human Health Methodology to calculate human health criteria that are protective of 

the designated use and based on sound science. 

D. Body Weight 

In Ecology's proposed rule, the state derived human health criteria using a body weight 

assumption of 80 kg based on tribal survey data relevant to Washington and EPA's 2011 

Exposure Factors Handbook.22 In general, the EPA is supportive of Ecology assuming a body 

weight of 80 kg to derive human health criteria. 

In the 1992 NTR, the EPA used a body weight assumption of70 kg in the equation to derive 

Washington's human health criteria. Although 70 kg is the EPA's current default assumption in 

its 304(a) recommendations, the EPA derived its 2014 draft 304(a) recommendations using an 

updated body weight assumption of 80 kg, the national mean based on a more current survey of 

the U.~. population and described in the EPA's 2011 Exposure Factors Handbook.23 Consistent 

with the EPA's guidance, Ecology is using local and regional specific data in deriving this value. 

In addition, this value is consistent with the national default assumption the EPA will incorporate 

into its revised 304(a) recommendations for human health criteria. 

E. Drinking Water Intake 

In Ecology's proposed rule, the state derived human health criteria using a drinking water intake 

rate of 2 L/day. Ecology states that since data specific to drinking water consumption in 

Washington are not available, the state cannot compare local data to the available national 

estimate and, therefore, Ecology proposes to use the EPA's current default rate of2 L/day. In 

the absence of reliable local or regional data, the EPA recommends that the state refer to the 

most current available national data on drinking water intake rates. 

contaminant levels in northern and southern resident killer whales ( Orcinus orca). 2006 Southern Resident Killer 

Whale Symposium, NOAA Fisheries Service Northwest Regional Office April 3-5, 2006. Seattle, W A. Extended 

Abstract. 5pp. 

21 EPA. January 2013. Human Health Ambient Water Quality Criteria and Fish Consumption Rates: Frequently 

Asked Questions. http://water.epa.govlscitech/swguidance/standards/criteria/bealth/methodologv/upload!hhfaqs.pdf. 

22 EPA. 2011. EPA Exposure Factors Handbook. 2011 edition (EPA 600/R-090/052F). 

http://cfuub.epa.gov/ncea!risklrecordisplay.cfm?deid=236252. 

23 Id. . 

7 
In the 1992 NTR, the EPA used a drinking water intake rate of2 L/day in the equation to derive 

Washington's human health criteria. Although 2 L/day is the EPA's current default rate in its 

304(a) recommendations, the EPA derived its 2014 draft 304(a) recommendations using a 

drinking water intake rate of 3 L/day. This rate represented a consumer-only estimate of 

combined direct and indirect water ingestion for all sources of water at the 90th percentile for 

adults ages 21 and older. 24 In response to public comments that focused on the most current 

national drinking water data, the EPA will finalize the updated 304(a) criteria using a drinking 

water intake rate of2.4 L/day, which represents the per capita estimate of combined direct and 

indirect community water ingestion· at the 90th percentile for adults ages 21 and older. 25 

If Ecology cannot obtain reliable local or regional data, the EPA encourages Ecology to consider 

the new information used to update the EPA's national default rate, including EPA's 2011 

Exposure Factors Handbook.26 

F. Reference Dose (RID) and Cancer Slope Factor (CSF) 

New research led to updates of several toxicity values for non-carcinogenic effects (reference 

doses or RIDs) and carcinogenic effects (cancer slope factors or -CSFs) since the EPA 

promulgated the NTR in 1992. The EPA used updated toxicity factors to recalculate its 304(a) 

recommended human health criteria for certain pollutants various times since 1992. The EPA's 

Integrated Risk Information System27 (IRIS) is the primary recommended source for RID and 

CSF information; however, in some cases, more current peer-reviewed and publically-available 

toxicological data are available from other EPA program offices (e.g., Office of Pesticide 

Programs, Office ofWater, Office of Solid Waste and Emergency Response}, other national and 

international programs, and state programs. The EPA conducted a systematic search of nine 

peer-reviewed, publicly available sources to obtain the most current RIDs and CSFs to derive the 

2014 draft 304(a) recommendations. The criteria are based on the more sensitive endpoint based 

on cancer or non-cancer assessments, presuming a cancer risk level of 1 o-6

• If a higher cancer 

risk level is used, it is possible-that the non-cancer endpoint becomes the driver for the criterion. 

The EPA recommends Ecology consider adopting final criteria that reflect the latest scientific 

information on toxicity that the EPA used in its draft recommendations or in the final national 

criteria recommendations if they are available before Ecology adopts a final rule. If Ecology 

chooses not to use updated toxicity values, the EPA recommends that Ecology provide a 

rationale for choosing not to integrate the latest science regarding toxicity into its human health 

criteria. 

G. Bioconcentration Factor (BCF) 

In Ecology's proposed rule, the state derived human health criteria using BCFs. Ecology's stated 

rationale is that Bioaccumulation Factors (BAFs) account for uptake from sources other than 

24Jd. 

2s Id. 

26Jd. 

27 EPA. Integrated Risk Information System (IRIS). U.S. Environmental Protection Agency, Office of Research and 

Development, Washington, D.C. W\V\V.epa.goviiris. 

8 
water (e.g., sediment, other food sources), and, therefore, are overprotective because some of the 

sources included could have pollutant burdens that come from areas and waters outside of 

Washington's CW A jurisdiction (e.g., mercury from air deposition). Pollutants from sources 

other than the water column can accumulate in fish that people consume, particularly if they have 

chemical properties that cause the pollutants to accumulate in fish dietary items. To account for 

bioaccumulation, the EPA's 2000 Human Health Methodology recommends use ofBAFs that 

account for uptake of a contaminant from all sources by fish and shellfish, rather than BCFs that 

only account for uptake from the water column. In the 1992 NTR, the EPA used BCFs in the 

equation to derive Washington's human health criteria. Although the EPA's current 304(a) 

recommendations use BCFs, the EPA's 2014 draft 304(a) recommendations replace BCFs with 

BAFs. The EPA will finalize the updated 304(a) criteria using BAFs, where data are available. 

BAFs account for biomagnification in the food chain, which is an essential pathway that Ecology 

is missing by using BCFs. For example, studies show that dietary uptake is associated with 98% 

ofPCB bioaccumulation in Lake Michigan Lake Trout.28 The EPA strongly recommends 

Ecology consider adopting final criteria that reflect the latest scientific information on 

bioaccumulation that the EPA used in its draft recommendations. If Ecology chooses not to use 

the latest scientific information on bioaccumulation, the EPA strongly recommends that Ecology 

provide a rationale for choosing not to integrate the latest science regarding bioaccumulation into 

its human health criteria. 

H. Polychlorinated Biphenyls (PCBs) 

For PCBs, Ecology proposed criteria that are the same as those currently in effect under the NTR 

(as revised in 1999): 0.00017 Jlg/L for both the criteria for water & organisms and organisms 

only. In developing the proposed criteria, Ecology used a chemical-specific cancer risk level of 

4 x 1 o-s or 0.00004, which exclusively applies to PCBs. Ecology states that it chose this cancer 

risk level for consistency with the level of risk in the toxicity factor that the Washington 

Department of Health uses to develop fish advisories for PCBs. 29 When Ecology used the 4 x 

1 o-s cancer risk level along with its other proposed inputs to calculate PCB criteria, the resulting 

criteria were less stringent than the currently effective 1999 NTR values. Therefore, the state 

proposed to adopt the 1999 NTR criteria for PCBs. 

In general, the EPA does not support Ecology using a chemical-specific cancer risk level for 

PCBs. Instead, consistent with the EPA's comments related to the need for Ecology to evaluate 

potential risks to the tribes as a target general population in section B above, the state should 

calculate human health criteria for all carcinogenic pollutants, including PCBs, using a 1 o-6 

cancer risk level. 

The EPA recognizes that PCBs provide unique challenges due to the fact that they are pervasive, 

widespread, long-lasting, and difficult to detect. However, this does not warranf setting the 

28 Thomann R. V., and Connolly, J.P. 1984. Model ofPCB in the Lake Michigan lake trout food chain, Environ. 

Sci. Techno!., 18(2), 65-71. 29 Department of Ecology. January 2015. Washington State Water Quality Standards: Human Health Criteria and 

Implementation Tools. Overview of Key Decisions in Rule Amendment. Page 39. 

https://fortress. wa.gov/ecy/publications/publications/141 0058.pdf. 

9 
human health criteria at less stringent levels. Instead, the EPA would like to work with Ecology 

to further discuss PCBs and how they can be addressed through the state's implementation tools 

- such as variances -without adjusting the cancer risk level. 

I. Arsenic 

For arsenic, Ecology proposed to adopt a criterion of 10 Jlg/L, which is the Maximum 

Contaminant Level (MCL) for arsenic under the Safe Drinking Water Act. Ecology also 

proposed requirements relating to arsenic pollution minimization. Arsenic is the only pollutant 

for which Ecology proposed human health criteria less stringent than the values currently in 

effect under the NTR (0.018 Jlg/L for water & organism and 0.14 Jlg/L for organisms only). 

The EPA recognizes that developing human health criteria for arsenic can be challenging, 

particularly because naturally occutring levels in Washington could exceed the EPA's 

recommended criteria. The EPA is willing to work with Ecology to explore options for deriving 

protective arsenic criteria that consider the special circumstances associated with natural levels 

of arsenic in Washington's waters. The EPA would also like to offer assistance in exploring how 

arsenic can be addressed using the state's revised implementation tools. However, at this point 

Ecology has not provided an adequate rationale to depart from its own decision to ensure the 

newly adopted criteria are no less stringent than the currently effective criteria under the NTR. 

J. Methylmercury 

Ecology decided to defer the adoption of human health criteria for methylmercury to allow for 

time to develop a comprehensive implementation plan in a future rulemaking. Therefore, the 

NTR human health criteria for total mercury would remain in effect for Washington. Ecology 

has not provided sufficient rationale for why the state is not considering the latest scientific 

information on methylmercury, beyond the difficulties anticipated in implementation. 

In 2001, the EPA updated its 304(a) recommended methylmercury criterion for protection of 

human health after considering the latest science and_ data regarding health effects from intake of 

mercury and the primary routes of exposure. The 2001 methylmercury criterion is expressed as a 

fish tissue concentration and replaced the EPA's previous recommended water column 

concentration for total mercury. 30 

As part of the development of the EPA's 2001 recommended methylmercury criterion, the EPA 

reviewed the sources and forms of mercury that humans are exposed to when eating fish or 

consuming water from the nation's waters. The EPA found that humans are exposed primarily to 

methylmercury rather than to inorganic mercury, and the dominant exposure pathway is through 

consumption of contaminated fish and shellfish rather than from ambient water. The EPA found 

that a criterion addressing the potential health effects from methylmercury would protect humans 

from the most toxic form of mercury and the primary route of exposure. Thus, in considering the 

30 EPA. January 2001. Water Quality Criterion for the Protection of Human Health: Methylmercury. U.S. 

Environmental Protection Agency, Office ofWater, Washington, D.C. EPA 823-R-01-001. 

http://water.eoa.1!ov/scitech/swguidance/standards/criteria/health!upload/2009 01 15 criteria methylmercury mere 

urv-criterion.pdf. 

10 
fate of mercury in the environment and available toxicological data, the EPA concluded that it is 

more appropriate to derive a water quality criterion for methylmercury rather than inorganic 

mercury. In addition, the data and science on methylmercury exposure, effects, and 

environmental fate supported the derivation of a fish tissue residue criterion. 

The EPA strongly encourages.Ecology to consider adoption of a methylmercury criterion using 

appropriate input parameters discussed above. Ideally, Ecology would consider adoption of this 

criterion in this rulemaking. However, if that is not feasible, the EPA recommends that Ecology 

provide a definitive timeframe for when it plans to adopt a methylmercury criterion. 

Regarding implementation of a fish tissue criterion for methylmercury, the EPA published 

guidance in 2010 to assist states and tribes. 31 The EPA recognizes that there are unique 

challenges with implementing fish tissue criteria as opposed to water column criteria. The EPA 

recommends that Ecology consider the information available in the EPA's methylmercury 

criterion implementation guidance and would like to offer assistance in determining how best to 

implement a methylmercury fish tissue criterion in Washington. 

K. Pollutant Scope 

Ecology proposed human health criteria for all CWA Section 307(a) priority toxic pollutants, 

with the exception of methylmercury. The number of distinct pollutants in Ecology's proposal 

outnumbers the pollutants in the NTR because Ecology included additional priority pollutants for 

which the EPA d~veloped 304(a) recommended criteria since last revising the NTR. The EPA 

also developed 304(a) recommendations for several non-priority pollutants, but Ecology did not 

propose to adopt criteria for any non-priority pollutants. 

The EPA encourages Ecology to consider adopting human health criteria for the non-priority 

pollutants for which the EPA developed 304(a) recommendations. Although the state's existing 

narrative criterion for toxic pollutants at WAC 173-201A-240(1) provides coverage for these 

pollutants, the EPA recommends that states use numeric criteria instead of narrative criteria 

when available, consistent with 40 CFR 131.11 (b). In the event Ecology has data or information 

suggesting that any of these pollutants do not warrant concern in Washington's waters, the EPA 

understands that Ecology could choose not to adopt human health criteria for those select nonpriority pollutants. 

L. Downstream Waters and Other Narrative Revisions 

Ecology made several revisions to the provisions at WAC 173-201A-240, which provide 

background and organize the toxic substances section ofWashington's WQS. 

The EPA has no comments on Ecology's revisions to WAC 173-201A-240(3), ( 4), (5), and 

(S)(a). These revisions help clarify and organize the proposed rule. 

31 EPA. April2010. Guidance for Implementing the January 2001 Methylmercury Water Quality Criterion. U.S. 

Environmental Protection Agency, Office of Water, Washington, D.C. EPA 823-R-10-001. 

http:/ /waler.epa. uovi sci tee h/ swgu idancei standardsi criteria/heal th!upload/ mercurv20 1 0. pdf. 

11 
The EPA has specific comments on WAC 173-201A-240(5)(b). In general, the EPA supports 

Ecology's revisions to this provision, which explain the purpose of the criteria, criteria 

derivation, and the format ofTable 240. However, the EPA would like to address the proposed 

language regarding protection of downstream waters in further detail. 

Ecology proposed to add the following language: 

"All waters shall maintain a level of water quality when entering downstream waters that 

provides for the attainment and maintenance of the water quality standards of those downstream 

waters, including the waters of another state. " 

This is consistent with the EPA's regulation at 40 CFR 131.1 O(b ). In addition, EPA's 2014 

guidance on Protection of Downstream Waters states that: 

"Adoption of narrative criteria or numeric criteria (or both) that are protective of downstream 

waters are viable options under 40 CFR 13J.JO(b). States/tribes have discretion in choosing 

their preferred approach. The EPA expects that many states/tribes will consider using a 

combination of narrative and numeric criteria depending on their circumstances. " 32 

However, the guidance also suggests that states and tribes can consider a more tailored and 

specific narrative criterion and/or a numeric criterion in certain situations, such as when more 

stringent numeric criteria are in place downstream and/or environmental justice issues are 

relevant. 

As mentioned above, most of Washington's rivers are in the Columbia River basin and are, 

therefore, upstream of Oregon's portion of the Columbia River. In addition, the Columbia River 

creates most ofthe Washington-Oregon border. Since approximately 90% ofWA's proposed 

human health criteria are higher than Oregon's EPA-approved criteria for the same pollutants, 

the EPA strongly encourages Ecology to consider adopting numeric criteria (either in addition to 

or instead of narrative criteria) that ensure the attainment and maintenance of Oregon's 

downstream WQS, or to provide additional rationale detailing how the use of a narrative 

downstream protection criterion alone will protect Oregon's more stringent WQS. For waters 

flowing into Oregon, criteria that are equally stringent or more stringent than Oregon's human 

health criteria would better ensure the attainment and maintenance of Oregon's downstream 

WQS consistent with 40 CFR 131.10(b). This aligns with the EPA's previous statements 

regarding a desire for regional consistency in human health criteria among Region 1 0 states. 

In addition, as stated in the comments above on the cancer risk level, Ecology should not delete 

the language at WAC 173-201A-240(6), which pertains to protection from carcinogens at a one 

in one million cancer risk level. 

32 EPA. June 2014. Protection of Downstream Waters in Water Quality Standards: Frequently Asked Questions. 

http:i/water.eoa.i!oviscitech!swguidanceistandards/librarv/upload/downstream-fags.pdf. 

12 
2. Implementation Tools and Defmitions 

Ecology proposed to revise procedures/authorizing provisions for two of the state's existing 

implementation tools (variances and compliance schedules) and added a new tool for intake 

credits. In addition, the state proposed to adopt a definition for each of these implementation 

tools at WAC 173-201A-020. 

As mentioned in the cover letter to our comments, the EPA recognizes the importance of 

implementation tools in order to make progress toward improved water quality while accounting 

for the needs of those affected, such as industry and local municipalities. To that end, the EPA 

supports use of these tools particularly in instances where more stringent human health criteria 

would create difficulties for the regulated community. 

Below are the EPA's comments on each of the implementation tools Ecology proposed to revise 

and adopt, to assist the state in ensuring the final implementation tools are approvable under 

CWA Section 303(c). 

A. Variances (WAC 173-201A-420) 

Ecology proposed to add a new definition at WAC 173-201A-020 to define variances and 

substantially reVise the state's variance procedures at WAC 173-201A-420. The revised 

procedures establish minimum qualifications for granting variances for individual dischargers, 

stretches of waters, and multiple dischargers. 

The EPA is in the process of specifying its federal requirements for variances.33 Keeping in 

mind the regulatory revisions being considered, below are the EPA's comments on Ecology's 

revisions to the variance provision and definition of variance: 

1. The EPA requests that Ecology clarify that the temporary modification referred to in the 

variance definition and revised provision is time-limited and does not replace the 

underlying WQS. 

2. Ecology proposed to remove its current five-year term limit on variances. Instead, 

Ecology expects the timeframe of a variance not to exceed the term of the permit, except 

under certain circumstances. If a variance term is issued for more than five years, 

Ecology proposed that the Department will complete mandatory five-year reviews. In 

general, the EPA supports this revision to the timeframe for variances as it provides 

flexibility for situations where the term of a permit would not be a reasonable duration 

for a variance. The EPA· will review each variance submittal from Ecology and consider 

the justification for the term of the variance when making CW A approval/disapproval 

decisions. 

33 EPA. September 4, 2013. Water Quality Standards Regulatory Clarifications; Proposed Rule (40 CFR Part 131). 

Federal Register Vol. 78, No. 171. 54518-54546. http://www.gpo.gov/fdsys/pkg!FR-2013-09-04/pd£'~013-

21140.pdt: 

13 
3. The EPA is supportive of Ecology's proposed language regarding public process, 

pollutant minimization plans, and conditions in which variances would be considered for 

renewal (as long as reasonable progress toward meeting the underlying WQS is being 

made), shortened, or terminated. . 

4. Ecology also proposed consideration of variances for individual dischargers, multiple 

dischargers, and waterbodies. The EPA anticipates working closely with the state, 

especially for multiple discharger variances or waterbody variances, to ensure. that each 

variance meets all applicable federal requirements. The EPA suggests that Ecology 

review the EPA's FAQs on multiple discharger variances.34 

5. The EPA requests that Ecology consider adding language into the variance authorizing 

provision that clearly articulates that any variance adopted by the state must identify the 

highest attainable condition and interim WQS applicable during the duration of the 

variance. Even if Ecology chooses not to include this language in its variance 

authorizing provision, the EPA still expects Ecology to specify this in any variances that 

it adopts and submits to the EPA. 35 

6. Once Ecology submits its final variance provision, the EPA will review the specified 

sections of Ecology's variance procedures as a "general policy" under 40 CFR 131.13 

and will base its review on whether the procedure is consistent with the CW A and federal 

regulations. Ecology is still required to submit each individual variance to the EPA for 

review and action before it is effective for purposes of the CW A because the variances 

themselves are also WQS. Accordingly, each variance submitted for the EPA's review 

must include the Attorney General's certification and be consistent with the CWA and 

the EPA's implementing regulations, including all applicable public participation 

requirements. Thus, the EPA's review of Ecology's variance procedure need not evaluate 

each hypothetical variance the state could issue under this regulation and consider 

whether such a variance would be consistent with the CWA and the EPA's implementing 

regulation. If the EPA does approve Ecology's variance procedure, the EPA's approval 

would not be an automatic approval of any future variance the state wishes to grant. 

B. Intake Credits (WAC 173-201A-460) 

Ecology proposed to add a new provision at WAC 173-201A-460 and an associated definition at 

WAC 173-201A-020 that addresses situations where a pollutant that a facility discharges also 

exists in the facility's intake water. The proposed new language provides regulatory relief 

relative to National Pollutant Discharge Elimination System (NPDES) permit requirements for 

point sources that do not increase the mass of a background pollutant above their intake water 

34 EPA. March 2013. Discharger-specific Variances on a Broader Scale: Developing Credible Rationales for 

Variances that Apply to Multiple Dischargers. Frequently Asked Questions. 

http://water.epa.gov/scitechlswguidance/standards/upload/Discharger-specitic-Variances-on-a-Broader-ScaleDeveloping-Credible-Rationales-for-Variances-that-Apply-to-Multiple-Dischargers-Freguently-AskedQuestions. pdf. 

35 I d. Pages 6-7. 

14 
levels.· This language is patterned after the language from the EPA's Great Lakes Initiative 

(GLI) as promulgated at 40 CFR 132, Appendix F, Procedure 5.D and 5.E. 

l. Ecology's proposed language at WAC 173-201A-460(2)(a) parallels, in part, the GLI 

language. Specifically, the rule provides that water quality-based effluent limits 

(WQBELs) may be established "so there is no net addition of the pollutant in the 

discharge compared to the intake water" if certain specified conditions are met. This 

provision is similar to the GLI's "No Net Addition" (NNA), and the conditions are 

essentially parallel to those included in the GLI provision. · 

2. However, the GLI regulation also contained~ additional intake credit provision (the 

"reasonable potential procedure"), which allowed the permitting authority to consider 

intake pollutants in determining whether the discharge had reasonable potential to cause 

or contribute to an excursion of the water quality criteria. Under the GLI, if the facility 

did not add any mass of the intake pollutant to its wastewater (e.g. use of intake water for 

once-through cooling), and met other specified conditions, the permit writer could find 

that there was no reasonable potential, and thus no WQBEL was required. It is not clear 

from the existing regulatory text whether Ecology intends to include such a "reasonable 

potential procedure." Ecology's language states "(t)he department may determine if there 

is [emphasis added] reasonable potential for the discharge," but does not explain how 

such a determination would be made, and specifically, whether and how intake po.Uutants 

would be considered in such determination. To the extent that Ecology intends to include 

such a provision, the EPA requests that the regulation clarify this by separating out the 

"reasonable potential procedure" (allowing consideration of intake pollutants in assessing 

reasonable potential) from the NNA provision (allowing the WQBEL to be set at the 

level of the intake pollutant). 

The EPA does not consider this new implementation tool to be a WQS under CW A Section 

303(c) since it is an NPDES permitting implementation provision. 

C. Compliance Schedules (WAC 173-201A-510(4)) 

Ecology proposed to add a new definition at WAC 173-201A-020 to define compliance 

schedules and revise the compliance schedule authorizing provision at WAC 173-201A-510(4). 

This revised provision removes the specific time limit for compliance schedules and describes 

circumstances when a compliance schedule can go beyond the term of a permit and ensures that 

compliance is achieved as soon as possible. The Washington legislature directed Ecology to 

extend the maximum length of compliance schedules to more than 10 years when appropriate 

(RCW 90.48.605). Ecology also added language to describe the interaction with TMDLs. 

The EPA considers Ecology's compliance schedule authorizing provision to be a WQS and, 

therefore, expects to take action on the revisions under CWA Section 303(c). However, unlike 

individual variances which must be approved by the EPA, the use of individual compliance 

schedules is not subject to the EPA's approval under CWA Section 303(c). The EPA maintains 

NPDES permit oversight to ensure that compliance schedules are implemented in a manner 

consistent with the CW A. 

15 
The EPA supports Ecology's new definition for compliance schedules. Below are the EPA's 

comments on Ecology's revisions to its compliance schedule prov~sion: 

1. The EPA requests that Ecology clarify that compliance schedules cannot be established 

for WQS themselves. Instead, compliance schedules can be authorized for WQBELs that 

are based on certain WQS. 

2. The EPA compared the proposed provision to the language in federal regulations at 

40 CFR 122.47(1), which requires "compliance as soon as possible ... ". Ecology's 

. proposed ·provision retains language in its current provision, which requires compliance 

"in the shortest practicable time." By definition, the term "practicable" implies feasible 

or achievable; therefore, could be implemented in a manner less stringent than "possible." 

Ecology uses these terms interchangeably throughout the compliance schedule 

authorizing provision and supporting documentation. The EPA requests clarification to 

ensure the proposed provision language is as stringent as federal regulations. 

3. The EPA acknowledges that Ecology proposed to replace its existing maximum 

compliance schedule duration of 10 years with language specifying that compliance 

schedules shall generally not exceed the term of the permit at WAC 173-201A-510(4)(d). 

This is consistent with applicable guidance36 and applicable NPDES regulations so long 

as compliance schedules are authorized to meet a NPDES permit's WQBELs as soon as 

possible. 

4. The EPA supports Ecology's decision to delete WAC 173-201A-510(4)(a)(v) from its 

existing compliance schedule provision. This language regarding "resolution of pending 

water quality standards issues" is inconsistent with the EPA's guidance and applicable 

law. In addition, the EPA supports the language Ecology proposed to add to WAC 173-

201A-510 (4)(b)(iv). This language clarifies that compliance· schedules can be issued for 

the completion of water quality studies only if such studies are related to implementation 

of permit requirements to meet WQBELs. Without this clarification, it was unclear if 

Ecology envisioned such studies to include support for a Use Attainability Analysis 

(UAA) or a site-specific criteria revision, which would be inconsistent with the EPA's 

guidance and applicable NPDES regulations. 

5. Based on direction from the Washington Legislature, Ecology proposed language 

regarding how compliance schedules interact with TMDLs at WAC 173-201A-510(4)(e). 

This new language explains situations in which Ecology can determine a longer time 

period is needed to come into compliance with applicable WQS beyond the term of a 

NPDES permit. In any of these situations, the actions specified in the compliance 

schedule must be sufficient to achieve WQS as soon as possible according to WAC 173-

201A-510(4)(e)(iv). This is consistent with the EPA's guidance and applicable NPDES 

regulations. 

36 EPA. May 10, 2007. Compliance Schedules for Water Quality-Based Ejjluent Limitations in NPDES Permits. 

Memorandum from James A. Hanlon, Director, Office of Wastewater Management. 

http://water.epa.gov/lawsregs/Lruidance/wetlands/uploadisigned-hanlon-memo.pdf. 

16 
6. Lastly, the EPA acknowledges that Ecology constructed the compliance schedule 

provision to apply to aquatic life uses (WAC 173-201A-51 0( 4)(a)(i)) and uses other than 

aquatic life (WAC 173-201A-510(4)(a)(ii)). If Ecology adopts this proposed rule 

language, the state can implement the compliance schedu~e authorizing provision upon 

the EPA's approval without ESA consultation for uses other than aquatic life. 

17