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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: 1101A 

Washington, D.C. 20460

Re: Request for prompt EPA promulgation 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 promulgation 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 communities 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 urgently 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 Oregon in 2011, and approval for Washington will have the added benefit of regional 

consistency, including 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 timeframe 
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previously called for by EPA Region X as necessary to avoid “undue 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 risk 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 tribes, 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 affirmance 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 Elwha 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 been 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 contamination.

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 Native 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