## LOWER ELWHA KLALLAM TRIBE

September 7, 2012 2851 Lower Elwha Road Port Angeles, WA 98363

Dennis McLerran,Regional Administrator U.S. Environmental ProtectionAgency Region 10 1200 Sixth Avenue, Suite 900 Seattle, WA 98101-3140 Phone: 360.452.8471 Fax: 360.452.3428

Re: Failure ofEcology to Revise Fish ConsumptionRate
DearAdministratorMcLerran:
I am writing to you to express the Lower Elwha Klallam Tribe's disappointment regarding the Washington State Department ofEcology'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 ofthe Elwha River, just west ofPort Angeles, and because ofour 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 ofan appropriate FCR. We nowjoin the Northwest Indian Fisheries Commission and otherTribes who have writtento express our serious concern. Ecology's decision contradicts its previous assurances that a revised FCR would be in place prior to the end ofthe 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 ofcompliance with the Clean Water Act, as it does not provide FCRthat are protective ofhumanhealth.
The current water quality and cleanup standards in effect in Washington State have long been recognized as grossly under-protective offish 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 1drafting ofa technical document with the expressed goal ofdeveloping a science-based default fish consumption rate for Washington State. The pending draft document, prepared by one ofthe 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 ofmore than 200 grams perday

. As you may know,the State ofOregonpassed similarfish consumptionrules 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 offishat levels evenhigherthan thatproposedby 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 beenproposed. During the public comment period, Ecology received significant negative response from Industry groups and municipalities over the potential impacts ofthe proposed FCR standard on water quality standards. While we strongly support Ecology's decision to develop human health based criteriafor surface water quality standards and its efforts to establish arealistic 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 ofindustry concerns over the protection ofhuman health and tribal treaty rights. Ecology's action leaves the development ofa fish consumptionrate to a vague stakeholderprocess and the uncertainty ofan 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 similarto that ofOregon's 

### 175 grams would be easilyjustified with the available data. We ask that you continue to actively engage withEcology to ensure that areasonable, 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 oftribal 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 ofmeaningful action warrants solicitation of regional and national leadership and expertise, as well as the authority ofthe EPA to address this critical issue. September 7, 2012 D

.McLerran Page 2We thank you for your time and attention to this matter of great importance to native peoples and all residents ofWashington State who consume seafood harvested from our state waters. Sincerely,



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## ~ Frances G. Charles, Chairperson LowerElwhaKlallam Tribe

cc: NorthwestIndian Fisheries Commission, Tribal Chairs, and Commissioners Ted Sturdevant, Ecology Director Bob Perciasepe, EPADeputyAdministrator LowerElwha Tribal Council, Environmental Coordinator, and General Counsel

September7, 2012 D

.McLerran Page 3