LOWER ELWHA KLALLAM TRIBE 

September 7, 2012 

2851 Lower Elwha Road 

Port Angeles, WA 98363 

Dennis McLerran, Regional Administrator 

U.S. Environmental Protection Agency 

Region 10 

1200 Sixth Avenue, Suite 900 

Seattle, WA 98101-3140 

Phone: 360.452.8471 

Fax: 360.452.3428 

Re: Failure of Ecology to Revise Fish Consumption Rate 

Dear Administrator McLerran: 

I am writing to you to express the Lower Elwha Klallam Tribe's disappointment 

regarding the Washington State Department of Ecology's (Ecology) recent and abrupt decision 

to suspend the development of a revised fish consumption rate (FCR) for Washington State 

cleanup and water quality standards. It is time for EPA to step in and promulgate a reasonable 

interim FCR. 

Our Tribe is located at the mouth of the Elwha River, just west of Port Angeles, and 

because of our continued subsistence dependence on fish and shellfish and our experiences with 

contamination in Port Angeles Harbor and elsewhere, we have been heavily involved in the 

development of an appropriate FCR. We now join the Northwest Indian Fisheries Commission 

and other Tribes who have written to express our serious concern. 

Ecology's decision contradicts its previous assurances that a revised FCR would be in 

place prior to the end of the current Administration's term and negates the tremendous efforts 

that the tribes exerted in working with Ecology over for the past few years. It also leaves 

Washington's water quality standards out of compliance with the Clean Water Act, as it does not 

provide FCR that are protective of human health. 

The current water quality and cleanup standards in effect in Washington State have long 

been recognized as grossly under-protective of fish consumers and environmental health. After 

being advised in 2008 by its Science Advisory Board (SAB) that the existing fish consumption 

rates of 6.5 g/day were not scientifically defensible, Ecology engaged in research and the 

September 7, 2012 

D. McLerran Page 1 
drafting of a technical document with the expressed goal of developing a science-based default 

fish consumption rate for Washington State. The pending draft document, prepared by one of the 

region's foremost experts in the subject area, recognizes that Washington fish consumers eat 

much more fish than the existing default rates and proposes a new rate for both cleanup and 

water quality standards of more than 200 grams per day. 

As you may know, the State of Oregon passed similar fish consumption rules in 2011 that 

resulted in a default value of 175 gms/day. We believe that the fish consumption data in 

Washington State shows even greater levels of seafood consumption among Native American 

populations. The data is also clear that Asian-Pacific Islanders and non-native subsistence 

fishers consume quantities offish at levels even higher than that proposed by Washington State. 

During this process Ecology engaged the Northwest Indian Tribes requesting assistance 

in reviewing and providing feedback on the proposed new rate. Our technical review found the 

proposed rate to be reasonable as a default rate for the state. However, we also recognized that, 

in fact, Puget Sound Tribes often consume far greater quantities of seafood per day even than 

what has been proposed. 

During the public comment period, Ecology received significant negative response from 

Industry groups and municipalities over the potential impacts of the proposed FCR standard on 

water quality standards. While we strongly support Ecology's decision to develop human health 

based criteria for surface water quality standards and its efforts to establish a realistic default fish 

consumption rate, we are disappointed and dismayed with its recent actions to revise the 

technical document and remove the conclusions and recommendations for a new default fish 

consumption rate. We are further dismayed by Ecology's decision to evaluate this subject with a 

stakeholder group of its choosing. This change, made without consultation with the tribes, 

nullifies the assurances and commitments that Ecology originally made to the tribes in this 

process. Ecology has further chosen to postpone the fish consumption rate issue indefinitely, 

which it originally stated would be enacted through the sediment management standards (SMS) 

update in 2012. We view this abrupt change as a prioritization of industry concerns over the 

protection of human health and tribal treaty rights. Ecology's action leaves the development of a 

fish consumption rate to a vague stakeholder process and the uncertainty of an upcoming change 

in state administration. 

I am encouraged by your September 6, 2012 letter to Ecology in which you "strongly 

support the adoption of human health criteria" for fish consumption rates derived from 

"scientifically sound data." We agree that a Washington standard similar to that of Oregon's 17 5 

grams would be easily justified with the available data. We ask that you continue to actively 

engage with Ecology to ensure that a reasonable, scientifically supported fish consumption value 

be established in a timely manner. And as an interim matter, we ask that EPA consider 

promulgating a higher default Fish Consumption Rate for Washington's Water Quality and 

cleanup standards-a standard that more reasonably reflects the realities of tribal and non-tribal 

fish consumption in this State. We understand the complexities of reconciling science and 

potential economic costs in establishing public health policy. But Ecology's lack of meaningful 

action warrants solicitation of regional and national leadership and expertise, as well as the 

authority of the EPA to address this critical issue. 

September 7, 2012 

D. McLerran Page 2 
We thank you for your time and attention to this matter of great importance to native 

peoples and all residents of Washington State who consume seafood harvested from our state 

waters. 

Sincerely, 

~ -::t_~ t.v.> .)~ . (__h. Q..J\._ ~ Frances G. Charles, Chairperson 

Lower Elwha Klallam Tribe 

cc: Northwest Indian Fisheries Commission, Tribal Chairs, and Commissioners 

Ted Sturdevant, Ecology Director 

Bob Perciasepe, EPA Deputy Administrator 

Lower Elwha Tribal Council, Environmental Coordinator, and General Counsel 

September 7, 2012 

D. McLerran Page 3