UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 10

MaiaBellon, Director Department ofEcology P.O. Box 47600 Olympia, Washington 98504-7600

DearDirector Bellon: 1200 Sixth Avenue, Suite 900 Seattle, WA 98101-3140 

## DEC 18 2014 OFFICE OF THE REGIONAL ADMINISTRATOR

I am writing in follow up to myletter dated April 8, 2014, in which I described the U.S. Environmental Protection Agency's intention to amend the National Toxics Rule for the State ofWashington'shuman health water quality criteria should the Washington Department ofEcology not finalize its human health water quality criteriabythe end of2014. Consistent with that letter, I am informing you that the EPA has initiated its internal federal rulemakingprocess to amend the NTR for Washington's humanhealth water quality criteria and plans to publicly announce the initiation oftheprocess onthe EPA's Website inmid-January 2015 via a monthlynotice that summarizes upcoming EPAregulatory actions (known as the Action Initiation List).

At the same time, as you know, the EPA remains interested and committed to supporting the State's process to complete a water quality standards submission for the EPA to review. I am encouraged by Ecology's timeline to issue a draft rule for public commentinJanuary 2015, and appreciate the Governor's personal investment in moving the State's efforts forward. I continue to strongly encourage the State to fully considerthe issues that the EPA has raised during the State'srulemaking process, particularlyregarding the need for the State to base its decision on sound science and thebest available data, which provide evidence offishconsumption rates well above 6.5 grams per dayinWashington, and to explain why a change in the State's long-standing cancer risk protection level is necessary and how it is consistent with its strategy for protecting higher fish consumers inWashington. I am hopeful that Washington's submission to the EPA fully addresses these issues, protects humanhealth and the environment, and is consistent with the Clean WaterAct.

The EPA recognizes that its federal rulemaking activities, specifically the timeframe for developing draft federal water quality criteria for Washington, would overlap with Washington's potential timeline for finalizing its rule. Therefore, it is important to note that, ifWashington were to submit a final rule to the EPA for Clean Water Act review and action, the EPA would likelypause its federal rulemaking activities to fulfill its required duty to review and act on the submittal underthe Clean WaterAct (to either approve the submittal within 60 days ordisapprove within 90 days). However, initiating the EPA's internal rulemakingprocess now, preserves the EPA's ability to propose a rule in a timely
manner should action on ourpartbecome necessary.
Consistent with the input wehave provided the State, the EPA will ensure that its federal rulemaking process fully considers the best available science, including local and regional information, and applicable EPA policies, guidance, and legal requirements. These policy and legal considerations would include an assessment ofdownstream waters protection, environmentaljustice, federal trust responsibility, and tribal treaty rights and how those issues should inform the EPA's analysis oftheprotectiveness ofthe water quality criteria. Atthis time, the EPAbelieves it would be able to complete
a proposed federal rule within approximately 9-12 months unless, as previouslynoted, it pauses its process to review a final State submittal. The EPA acknowledges that this would mean the earliest timeline for a federal proposal would likelybe August 2015, which is later than the May2015 timeframe I noted in myApril2014 letter. Ibelieve the August timeframe strikes a balancebyproviding time for Washington to potentially complete its rulemakingprocess and submit a final rule to the EPA for Clean WaterAct review while at the same time allowing the EPA to prepare to move forward with updating the federal rule should that actionbecome necessary. Finally, the EPA recognizes that industry and local governments have raised concerns about implementation flexibility andbeingprovided time to meet new, more stringent waterquality standards. The EPA supports Ecology's efforts to regularly engage a broad range ofstakeholders about these
concerns during its rulemakingprocess, and several ofthose concerns have been addressed in the State's analysis on thepotential economic costs and benefits ofthe preliminary draft rule. The EPA intends to continue working with the State on its development and use ofappropriate implementation mechanisms that are consistent with the CleanWaterAct, including variances and compliance schedules.

We are keenly aware oftheneed to implement water quality standards in ways that makereasonable progress inimproving water quality whileprotectingthe economic viability ofstate industries and communities. To that end, the EPA is available to meetjointlywith Ecology and key stakeholders to discuss how implementation mechanisms can and should work to makeprogress toward improved water quality while accounting for the needs ofthe regulated community. We look forward to continuing to work with the State on a successful path forward.

The EPA remains very appreciative ofthe challenging work that Ecologyhas undertaken thus far to adopt human health water quality criteria and we look forward to reviewing aruleproposal inJanuary. Developing water quality standards that protectpublic health remains a high priority issue for the EPA, especiallyin Region 10. Please note that, as with myApril 8, 2014letter, this letter does not constitute and is not intended as an Administrator determination under CWA section 303(c)(4(B). Ifyou would like to discuss these topics further, please contact me directly orhave your staffcontact Dan Opalski,
ourDirector for the Office ofWater and Watersheds, at (206) 553-1855.

Sincerely,

# ~q. Dennis J. McLerran Regional Administrator

cc: Michael Grayum, Executive Director Northwest Indian Fisheries Commission

Brian Cladoosby, Tribal Chairman SwinomishTribe

Matt Steuerwalt, Policy Advisor Washington State Governor's Office