1 

## LOWER ELWHA KLALLAM TRIBE

2851 Lower Elwha Road Phone: 360.452.8471 Port Angeles, WA 98363 Fax: 360.452.3428

September 15

, 2014

Gina McCarthy, Administrator U.S. Environmental Protection Agency William Jefferson Clinton Building 1200 Pennsylvania Avenue, N.W.
Mail Code: 110 1 A Washington, D

. C

. 20460

Re: Request for p rompt EPA p romulgation of human health

- based water quality
standards for Washington State

Dear Administrator McCarthy:

I write on behalf of the Lower Elwha Klallam Tribe in western Washington State to urge

EPA leadership to support the efforts of its Region X in initiating promul gation of a Fish Consumption Rate (FCR) of 175 grams/day and an associated cancer risk of 10 - 6 (one in a million) for the State of Washington. The scientific evidence has long supported the need for these basic standards, without which several distinct com munities in Washington, including nearly two dozen Indian tribes with treaty fishing rights, will be disproportionately harmed. Repeated delays and false starts by the State of Washington and its cognizant agency, the Department of Ecology, have made it u rgently necessary for EPA to follow through with the action that Region X is proposing. EPA has already approved these standards for the neighboring State of Orego n in 2011, and approval for Washington will have the added benefit of regional consistency, i ncluding with respect to shared major watersheds such as the Columbia River
basin.

Over two years ago, in July, 2012

— due to objections and threats from industry

— the State abruptly suspended an ongoing rulemaking effort geared toward promulgating the 175 g/day FCR. Since then, the State has missed several self

- imposed deadlines for issuing a draft rule, and as a result will now be unable to issue a final rule by the end of 2014, the timeframe2

previously called for by EPA Region X as necessary to avoid “und ue delay.” Recently, the Washington Governor’s office at last announced its latest approach to this issue

— it promises merely a preliminary draft rule by September 30, 2014, which will propose the 175 g/day FCR
while at the same time increasing the cancer r isk by a factor of 10, to 10 - 5 (one in one hundred thousand). The proposed increase in cancer risk would essentially cancel out the improved FCR, rendering it, in effect, the equivalent of 17.5 g/day under the present cancer risk factor of 10 - 6 . It
is clear the State recognizes, as does EPA Region X, that the FCR needs to be raised to the 175 g/day level, but it is equally clear that the State lacks the will to implement it effectively. That is why EPA must assume responsibility.

Like most Washington t ribes, Lower Elwha has a treaty right to harvest fish at all of its usual and accustomed grounds and stations, which was hard

- won during the fishing rights struggles of the 1950s

- 70s, culminating in the 1974 Boldt Decision in federal district court and
its affirm ance by the Supreme Court. Since that time, Washington tribes have become leaders in fisheries management and restoration, experienced co

- managers of this precious resource on which the entire region depends. Lower Elwha has done its part by, among other things, leading
the effort to remove the dams on the Elwha River

— the largest dam removal project to date in the
United States

— and restore its ecosystem and once

- abundant salmon runs.

Because of our treaty rights and management capabilities, Lower El wha has also been a key partner in several long

- running toxic cleanup and restoration efforts, where we have learned many lessons about State

- led cleanup efforts and about how State water quality standards and the FCR can affect cleanup or natural resource restoration levels. Our most notable and sustained involvement has been at Port Angeles Harbor (processes that involve at least seven major PRPs (Potentially Responsible Parties)). EPA, our Tribe, and the Washington Department of Ecology are all party to a Deferral Agreement, in which EPA has deferred its CERCLA responsibility for cleanup of the Harbor to Ecology, but subject to the Tribe’s right to participate and concur in all major cleanup decisions. We take that responsibility very seriously and have b een diligent in our involvement for over 15 years. We have also led the effort to organize a Natural Resources Damages (NRD) Trustee Council under CERCLA to pursue restoration projects to compensate for damage to resources in the Harbor caused by toxic con tamination.

Because of this long history of detailed involvement, we understand the implications that major cleanup decisions may have on human health, recovery and restoration of natural resources, and the potential financial impacts on the PRPs. We are intimately aware of the relationship between persistent, bioaccumulative contaminants in aquatic systems and the risks to human receptors (consumers) of fish and shellfish. These risks are further magnified when high end subsistence consumers, including N ative American and Asian/Pacific Islanders, receive a disproportionate body burden of these contaminants due to higher rates of fish consumption. This is also the case for many non

- native subsistence consumers. We are also aware that water quality