UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 10 1200 Sixth Avenue, Suite 900 Seattle,WA 98101-3140 

## JAN Z0 7015

The Honorable Senator Doug Ericksen, Chair Washington Senate Energy, Environment, and Telecommunications Committee Post Office Box 40442 Olympia, Washington 98504-0442
Dear Senator Ericksen: OFFICE OF THE REGIONAL ADMINISTRATOR

Thank you for your letter dated December 23, 2014. I appreciate you taking the time to write to me again about Washington's water quality standards to protecthumanhealth. As you noted, theU.S. Environmental Protection Agencyhas initiated its internal federal rulemaking process to amend the humanhealth water quality criteria for Washington inthe National Toxics Rule.
In general, the EPA prefers that states and tribes update their water quality standards and submit final rules to the EPA that are consistent with the Clean Water Act and EPA'spolicies, guidance, and legal requirements. Therefore, I recognize that there is concern about the dual processes involvingboth the state and federal government in the development ofhumanhealth criteria for Washington. However, as I stated in myDecember 18,2014, letterto Ecology Director Bellon, it is not the EPA's intent to detract from the State's rulemaking process. The EPA strongly supports Washington's efforts to finalize a State rule that is protective ofhumanhealth to replace the humanhealth criteria that were federally promulgated for Washington in the 1992 NTR. At the same time, we continue to believe it is prudent for EPA to prepare for a potential federal rule proposal should action on ourpartbecome necessary. With that background inmind, I have outlined specific answers to your six questions below. (1) Is EPA currently developing water quality rulesfor otherstates in Region 10? 

## If so, what rules are beingdeveloped, and for which states?
The EPA is not currently developing federal water qualityrules for other states in Region 10. However, in a December2014 settlement agreement with the Idaho Conservation League, the EPA committed to either approve revised humanhealth criteria submitted byIdaho orto propose federal human health water quality criteria for Idaho. The general deadline to fulfill this commitment is December 2016, subject to extensionunder certain circumstances. This settlement agreement was in response to a Notice ofIntent to Sue alleging EPA's failure to promptlypromulgate criteria for Idaho following the EPA's disapproval ofldaho'srevised human health criteria inMay 2012. According to its current rulemaking schedule, the State ofIdaho plans to submit arevised final rule to EPA in 2016. (2) Is EPA currently developing water quality rulesfor states in otherEPA Regions? 

## If so, what rules are beingdeveloped , andwhere do those rules apply?
In August 2014, EPA entered into a consent decree with Our Children's Earth and Ecological Rights Foundation that obligates EPA to propose selenium and mercury criteria to protect aquatic life and aquatic-dependent wildlife for certain areas ofCalifornia, unless California adopts (and EPA approves)such criteria first. EPA is working with California to fulfill the obligations under the consent decree, and to ensure workable implementation ofany new water quality standards. (3) In the last sixyears, has EPAproposedto take control of the water quality rule developmentprocess in otherstates? 

## If so, in which states, andhas EPAfollowed through on any suchproposals?
Under the CWA, states have primary responsibility for developing and adopting water quality standards for their navigable waters. On certain occasions, consistent with CWA section 303(c)(4), the EPA Administrator (orhis/her duly authorized delegate) has determined that to meet the requirements ofthe CW A, federal promulgation ofone or more new orrevised water quality standards was necessary. In these instances, the affected state(s) retained the option to adopt and submit to EPA water quality standards consistent with CWA section 303(c) and the EPA's implementing regulations at 40 CFR part 131. On several occasions, once a state has submitted new orrevised water quality standards that the EPA approved as fully meeting CWA requirements, the EPA has withdrawn or ceased work on (as appropriate) its federally promulgated standards. In the last six years, EPA finalized two such withdrawals via federal rulemaking (certain aquatic life criteria applicable to Wisconsin originally promulgated in 40 CFR part 132 for the Great Lakes system (see 76 FR 57646), and certain criteria applicable to California, New Jersey, and Puerto Rico originallypromulgated in the NTR (see 78 FR 20252). Additionally, in the last six years, EPA promulgated numeric nutrient criteria for Florida's lakes, springs and certain flowing waters, and proposed numeric nutrient criteria for Florida's estuaries, and coastal waters. Ultimately, once Florida submitted and EPA approved state-adopted nutrient criteria for these waters, EPA withdrew its federal promulgation and ceased work on its proposals. (4) What, specifically, willEPA do to ensure amplepublicparticipation in its development of water quality standardsfor Washington, andhow can thepublicparticipate in theprocess?
As stated above, the EPA's preference is for Ecology to proceed with its rulemaking in a timelymanner, which would include the State following their own public participation process. IfEPA proceeds with proposing a federal rule, the EPA conducts a public participation process similar to the State's where it provides a formal public comment period that commences when a federal rule is proposed. In addition, EPA offers government-to-government consultation with tribal governments consistynt with its federal trust responsibilities. The EPA would also considermeeting with other stakeholders who are interested in providing inputbefore orduring the formal public commentperiod. Itis important to note the EPA's

. deliberativeprocess limits the information that the EPA can share about a federal proposal priorto the public comment period. (5) Who, specifically, within EPA is authorized to make a final determination to adopt human health criteriafor Washington's water quality standards?
Consistent with CWA section 303(c)(4)(B), the EPA Administrator (or his/her duly authorized delegate) is authorized to determine that one or more new orrevised water quality standards is (are) necessary to meet CW A requirements. (6) What is theparticular basisfor EPA's view that Washington's current water quality standards are deficient?

2Thebest available science includes evidence offish consumptionrates well above 6.5 grams per day amonghigh fish consumers in Washington, which raises concerns that the human health criteria currently in effect for Clean WaterAct purposes inWashington are not sufficientlyprotective. Again, thank you for contacting the EPA. Ifyou have any questions, please feel free to contactme or have your staffcontact Dan Opalski, the Director ofthe Office ofWater and Watersheds. You can reach Danbyphone at (206) 553-1855 orby email at opalski.dan@epa.gov.

# ~ Dennis J. McLerran Regional Administrator

cc: Ms. Maia Bellon, Director, Washington Department ofEcology



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