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NINA BELL*

Environmental Injustice Posed by Oregon’s

Water Quality Standards

In 2004, after nearly two decades of delay,1 Oregon’s Department of Environmental Quality (ODEQ) updated its water quality standards for toxic pollutants2

 by adopting most of the U.S.

Environmental Protection Agency’s (EPA) recommended criteria published pursuant to section 304(a) of the Clean Water Act

(CWA).3 In doing so, Oregon adopted the EPA’s underlying assumption that the average person consumes 17.5 grams of fish

per day.4 Oregon’s explicit choice to use this national average

stands in stark contrast to an unprecedented amount of data

gathered by the EPA and Columbia River Inter-Tribal Fish Commission (CRITFC)5

 demonstrating that Native American tribal

members consume fish at a rate far exceeding the national aver-

* Nina Bell, Executive Director, Northwest Environmental Advocates. J.D. cum

laude 1991, Lewis and Clark Law School; B.A. 1987, Antioch University. The author thanks Brian Pietruszewski.

1 In its 1986-1988 triennial review, the ODEQ adopted Table 20, which established

numeric criteria for toxic priority pollutants based on the EPA’s national recommended criteria. Most of these criteria originated in 1980, see Water Quality Criteria Documents, 45 Fed. Reg. 79,318 (Nov. 28, 1980), and the state did not update its

toxics standards during several subsequent reviews.

2 DEPARTMENT OF ENVIRONMENTAL QUALITY, WATER QUALITY CRITERIA SUMMARY, TABLE 20 (2004), available at http://www.deq.state.or.us/wq/wqrules/Div041/

OAR340Div041Tbl20.pdf; id. at TABLE 33A, available at http://www.deq. state.or.us/

wq/wqrules/Div041/OAR340Div041Tbl33A.pdf; id. at TABLE 33B, available at http://

www.deq.state.or.us/wq/wqrules/Div041/OAR340Div041Tbl33B.pdf.

3 Federal Water Pollution Control Act, 33 U.S.C.A. §§ 1251-1387 (2005).

4 Memo from Stephanie Hallock, Director DEQ, to Environmental Quality Commission, April 29, 2004, available at http://www.deq.state.or.us/wq/standards/Toxics

EQCDocs/EQCStaffRptToxicsFinal.pdf.

5 The CRITFC member tribes are: the Confederated Tribes of the Warm Springs

Reservation of Oregon, the Confederated Tribes and Bands of the Yakama Nation,

the Confederated Tribes of the Umatilla Indian Reservation, and the Nez Perce

Tribe. U.S. ENVIRONMENTAL PROTECTION AGENCY, COLUMBIA RIVER BASIN FISH

CONTAMINANT SURVEY 1996-1998 E-1 (2002), http://yosemite.epa.gov/R10/OEA.

NSF/webpage/Columbia+River+Basin+Fish+Contaminant+Survey (follow “Entire

Document” hyperlink).

[85]
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86 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]

age.6 High fish consumption levels translate directly into greater

health risks when fish are contaminated with toxic residues, as

they are in the Columbia River Basin. For example, tribal members who consume forty-eight fish meals per month have cancer

risks up to fifty times higher than those present in members of

the general public, who consume fish about once per month.7 As

a result, while Oregon’s water quality standards subject its citizens to an added cancer risk of one cancer per 1,000,000 people

exposed to a given toxic pollutant,8

 the standards allow cancer

risks to tribal members that far exceed this level. To many people, it is obvious this is not just—but is it legal?

In Part I of this article, I explain how the establishment of state

water quality standards provides a foundation to protect tribal

members and others who consume fish at subsistence or nearsubsistence levels. First, the CWA requires states to update their

water quality standards every three years, paying particular attention to toxic criteria. Second, the legal definition of “water

quality standard,” which is frequently thought of only as a “safe”

amount of pollutants, is actually quite broad, encompassing protection of uses that have been designated or have existed at any

time since 1975, as well as the numeric and narrative criteria

adopted to protect those uses. Because numeric criteria are not

developed to protect frequent fish consumers, the gap-filling nature of designated and existing uses and of narrative criteria is

particularly important in addressing environmental justice concerns when water quality standards are applied through regulatory programs. Third, in establishing water quality standards,

states must choose the risk level they want to provide their citizens, factoring in both the amount of fish consumed by the general population and the quantity consumed by subsistence fish

consumers. Although the EPA has developed, in response to two

executive orders on environmental justice and children’s health,

6 Id. At 4-58.

7 The study showed fish consumption levels for CRITFC’s member adults at: (1) a

high rate of 389 grams per day (compared to 142.4 grams per day among adults in

the general population), and (2) an average rate of 63.2 grams per day (compared to

7.5 grams per day in the general population). CRITFC member children with high

consumption levels were found to consume 162 grams per day, or the equivalent of

five meals each week. Id. at 4-59.

8 MARTIN S. FITZPATRICK, OREGON ENVIRONMENTAL QUALITY COMMISSION,

TOXIC COMPOUNDS CRITERIA ISSUE PAPER: 1999-2003 WATER QUALITY STANDARDS REVIEW 18 (2004), http://www.deq.state.or.us/wq/standards/ToxicsEQCDocs/

AttachmentHToxicsCriteriaIssuePaperfinal.pdf.
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Environmental Injustice 87

a small body of work that urges use of these standards to protect

the nation’s most vulnerable populations, there has been no regulatory response to date.

In Part II, I review the EPA’s regulations prohibiting unintentional or “disparate impact” discrimination pursuant to the Civil

Rights Act of 1964, and explain why these regulations are not

enforceable by third parties. Part III describes how Oregon

adopted toxic criteria based on national average fish consumption levels, thus ignoring both its own technical advisory committee’s recommendations and a comprehensive study

demonstrating extremely high fish consumption levels among

members of the four Columbia River tribes. Finally, I point out

that the EPA has authority to: (1) disapprove, on several

grounds, Oregon’s toxic criteria because they fail to protect subsistence fish consumers, and (2) ensure Oregon’s excellent, but

oft-ignored, narrative criterion on toxics is fully implemented in

order to protect these consumers.

I

PROTECTIONS AFFORDED FREQUENT FISH

CONSUMERS BY THE CWA

Water quality standards comprise the foundation for the

CWA’s water quality-based approach in regulating sources of

water pollution and protecting the nation’s waters. These standards are known primarily for setting “safe” pollutant levels

through state adoption of numeric criteria, which are most often

(but not always) the same as the EPA’s recommended criteria

published pursuant to section 304 of the CWA.

However, a looming question is: For whom are these pollutant

levels safe? Are they safe for people who eat more than the

amount of fish upon which the numeric criteria are based? Are

they safe for people who are exposed to more than the normal

amount of toxins through employment conditions, living conditions, or methods of food preparation? Are they safe for

children?

The legal definition of “water quality standard,” which is much

broader than the numeric criteria described above, can answer

these and many other questions in a way that provides a measure

of equal protection to all. Defined fully, water quality standards

consist of (1) designated beneficial uses, (2) numeric and narra-
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88 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]

tive criteria that protect those uses, and (3) an anti-degradation

policy that includes, among other provisions, a requirement that

existing uses be protected.9 But the law can only protect if properly implemented and enforced. Thus, solutions will remain elusive as long as the states and the EPA fail to adhere to the law

while tolerating higher risk levels in those human subpopulations

exposed to elevated levels of toxic contaminants.

A. Triennial Review of Water Quality Standards

The CWA requires states to review and improve their water

quality standards every three years.10 During each of these “triennial reviews,” states must adopt specific numeric criteria for all

toxic pollutants for which the EPA has published recommended

criteria under CWA section 304(a).11 For the remaining chemicals on the CWA’s list of “priority pollutants,”12 states must

adopt criteria “based on biological monitoring or assessment

methods.”13 In determining the criteria needed, the states must

also review data on discharges and water quality to identify waters where toxic pollutants may be causing adverse effects or otherwise raising concerns.14 For all pollutants, where waters are

designated for multiple uses, state criteria must support the most

sensitive use.15

9 40 C.F.R. § 131.12(a) (2005).

10 33 U.S.C.A. § 1313(c)(1) (2005).

11 33 U.S.C.A. § 1313(c)(2)(B); 40 C.F.R. § 131.11(a)(2).

12 See U.S.C.A. § 1317(a).

13 33 U.S.C.A. § 1313(c)(2)(B); see 40 C.F.R. § 131.11(b)(2). Of the 126 priority

toxic pollutants identified by the EPA pursuant to 33 U.S.C.A. § 1317, at least eighteen have no published EPA-recommended criteria, and many do not have the full

complement of six criteria (two of which are for human health) that are generally

established for each pollutant. In addition to these section 1317 pollutants, there are

many more toxic chemicals in U.S. waters that the EPA has not identified as “priority pollutants.” 33 U.S.C.A. § 1313(a)(1) states that “[t]he Administrator may revise

such list and the Administrator is authorized to add to or remove from such list any

pollutant.” By virtue of these chemicals not being listed, the EPA is not required to

develop recommended criteria for them. 33 U.S.C.A. § 1314(a)(1).

14 40 C.F.R. § 131.11(a)(2).

15 40 C.F.R. § 131.11(a)(1). Despite the requirement that criteria protect the most

sensitive designated use, states routinely adopt numeric criteria for toxic pollutants

that insufficiently protect wildlife. Birds and mammals that consume large amounts

of fish in proportion to their body weight are frequently at much greater risk than

humans.
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Environmental Injustice 89

While the state acts initially, the burden shifts to the EPA16 to

determine whether the state standards meet CWA requirements.17 Following its adoption of water quality standards, a

state must submit them to the EPA for approval or disapproval.18

The EPA has sixty days to approve or ninety days to disapprove

the new or revised standards.19 If the EPA disapproves the standards, it must provide the state with an explanation of what is

necessary to meet the CWA’s requirements and give the state

ninety additional days in which to make the needed corrections.20

If the state fails to take the necessary steps within this time

frame, the EPA must “promptly” promulgate a federal standard

for the state.21

B. Water Quality Standards Are More than Just

“Safe” Levels

1. Protection of Designated and Existing Uses

States must adopt beneficial uses—such as transportation,

drinking, swimming, and fish and wildlife habitat—into their

water quality standards.22 Thereafter, any legal requirement to

meet the state’s water quality standards (such as a discharge permit) must fully support such “designated uses.”23 A state may

designate uses broadly, as in “aquatic uses,” or with subcategories, such as “cool water fish.”24 Where subcategories are created, the EPA expects the state to tailor its protections to the

more specific use.25 Left unclear is what protections the EPA

16 In some instances, the EPA may also be under a mandatory duty to take action

where the state fails to act. 33 U.S.C.A. § 1313(c)(4)(A).

17 Moreover, if the standards affect threatened or endangered species, section 7 of

the Endangered Species Act (ESA) requires the EPA to pursue consultation with

the U.S. Fish and Wildlife Service and/or National Marine Fisheries Service, and

with American Indian tribes. 16 U.S.C.A. § 1536(a)(2). This consultation is likely to

have the effect of providing considerably more protection to certain animal species

than human subpopulations.

18 33 U.S.C.A. § 1313(c)(2)(A)(c)(3); 40 C.F.R. § 131.20(c).

19 33 U.S.C.A. § 1313(c)(3).

20 Id. 21 33 U.S.C.A. § 1313(c)(4).

22 See 33 U.S.C.A. § 1313(c)(2)(A).

23 Id. 24 See 40 C.F.R. § 131.10(a), (c).

25 40 C.F.R. § 131.10(c). Likewise, when numeric criteria are designed to protect

specific designated uses, the time and place of those uses must be identified. Northwest Environmental Advocates v. U.S. EPA, 268 F. Supp. 2d 1255, 1266-67 (D. Or.

2003).
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requires when states choose to designate their uses broadly and

the designations encompass sensitive human populations and/or

fish species.

In addition to designated uses, federal regulations require that

water quality standards protect “existing uses” through state

adoption of an antidegradation policy and corresponding implementation methods.26 Existing uses are those uses that have

been “actually attained” at any time since November 28, 1975, as

well as the level of water quality necessary to protect them.27

Every time a water quality standard is applied, the state should

evaluate whether existing uses will be protected in the event that

a state’s designated uses fail to ensure full protection of those

existing uses.

2. Protection Afforded by Narrative Criteria

In addition to numeric criteria and the protection of designated and existing uses, water quality standards contain another

set of broad requirements: narrative criteria. Narrative criteria

provide a mechanism to address any unanticipated water quality

issues a state may encounter,28 filling the gaps left where numeric

criteria have not been updated, do not exist, or were not developed to protect a water body’s most sensitive uses. Narrative criteria are especially important because numeric criteria “cannot

reasonably be expected to anticipate all the water quality issues

arising from every activity that can affect the State’s hundreds of

individual water bodies.”29

Beneficial uses not likely to be adequately protected by

numeric criteria include: (1) threatened and endangered species

that cannot bear the risk levels upon which aquatic-use numeric

criteria are based, (2) humans who consume greater than average

amounts of fish, (3) children, (4) species, such as mink, that are

particularly sensitive to certain toxic pollutants, (5) species that

consume high levels of fish in proportion to their body weight,

and (6) any uses affected by the additive or synergistic effects of

exposure to multiple pollutants. In the absence of adequately

protective numeric criteria, the narrative criteria, as with the des26 40 C.F.R. § 131.12(a), 131.3(e), 131.6(d).

27 40 C.F.R. § 131.12(a)(1).

28 Id. 29 PUD No. 1 of Jefferson County and City of Tacoma v. Washington Dep’t of

Ecology, et al. 511 U.S. 700, 717 (1994).
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ignated and existing uses, are a legal basis upon which to provide

these protections.

Each time a state applies water quality standards in its regulatory programs, it decides whether to interpret its narrative criteria (thereby providing protection lacking in its numeric criteria)

or to ignore them. A key example is the states’ development of

CWA-mandated lists of impaired waters, in which water quality

data are compared to water quality standards to identify where

clean-up and pollution restrictions are needed.30 States also

should apply narrative criteria when they develop Total Maximum Daily Loads (TMDLs), which are clean-up plans for waters

identified as impaired.31 Likewise, the water quality-based effluent restrictions32 on municipal and industrial point source dis30 33 U.S.C.A. § 1313(d)(1)(A) requires states, or the EPA if a state fails to act, to

prepare a list of waters not meeting water quality standards.

31 33 U.S.C.A § 1313(d)(1)(C).

32 The CWA contains numerous requirements for technology-based controls that

are intended to reduce pollution regardless of the effect of the discharge on the

receiving stream due to other sources, the size or flow of the stream, and other

circumstances. See, e.g., 33 U.S.C.A. § 1311(b). In addition to meeting technologybased effluent limitations, National Pollutant Discharge Elimination System

(NPDES) permits must also contain “any more stringent limitation, including those

necessary to meet water quality standards . . . or required to implement any applicable water quality standard established pursuant to this Act.” 33 U.S.C.A.

§ 1311(b)(1)(C). Likewise, the Act requires that where a permitting authority determines that “discharges of pollutants from a point source . . . would interfere with the

attainment or maintenance of [applicable] water quality [standards], . . . effluent

limitations (including alternative effluent control strategies) for such point source

. . . shall be established which can reasonably be expected to contribute to the attainment or maintenance of such water quality.” 33 U.S.C.A. § 1312(a).

EPA regulations require that the effluent limitations incorporated in

NPDES permits meet any additional standards and state requirements. See

40 C.F.R. § 122.44(d)(1). This section establishes the need for “any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under [other sections of the CWA] necessary

to: (1) Achieve water quality standards established under section 303 of the

CWA, including State narrative criteria for water quality.” 40 C.F.R.

§ 122.44(d)(1).

These required effluent limitations must control all pollutants or pollutant

parameters (either conventional, nonconventional or toxic pollutants)

which the Director determines are or may be discharged at a level which

will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative

criteria for water quality. Id.

In order to determine whether a discharge causes or has the reasonable

potential to cause or contribute to an in-stream excursion above either narrative or numeric criteria, “existing controls on point and nonpoint sources

of pollution, the variability of the pollutant or pollutant parameter in the
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chargers require compliance with water quality standards.33

Finally, narrative criteria can and should play a role when states

issue certifications of compliance with water quality standards for

activities requiring federal permits or licenses, such as dredging

projects and dams.34

In light of the importance of such narrative criteria, particularly for toxic constituents, the CWA requires states to ensure

that narrative criteria are given the full force and effect of law.

Specifically, states are required to promulgate an implementation

methodology to interpret and apply their narrative criteria for

toxic pollutants.35 Federal rules require that where a state uses

narrative criteria for toxic pollutants, it is required to identify

how it will apply those criteria to point source discharges of toxic

pollutants into waters that violate water quality standards.36

The presence of an implementation methodology becomes

even more significant given the EPA’s finding that its recommended numeric criteria for CWA section 304(a) pollutants will

often be insufficient to protect a state’s beneficial uses.37 The

EPA has stated that:

1) its recommended criteria are not intended to provide protection for terrestrial and avian wildlife; 2) not all toxic pollutants have been designated as priority pollutants and even

some priority pollutants have no recommended criteria developed; and, 3) its recommended criteria do not consider or reflect the synergistic and additive effects of multiple priority

toxic pollutants.38

In the California Toxics Rule, the EPA further stated that “in

some instances, the human health mercury criteria included in

today’s final rule may not protect some aquatic species or

threatened or endangered species. In such instances, more stringent mercury limits may be determined and implemented

through use of the State’s narrative criterion.”39 In fact, the EPA

effluent . . . and where appropriate, the dilution of the effluent in the receiving water” must be accounted for. 40 C.F.R. § 122.44(d)(1)(ii).

33 NPDES permits are issued pursuant to 33 U.S.C.A. § 1342.

34 See 33 U.S.C.A. § 1341.

35 40 C.F.R. § 131.11(a)(2).

36 Id. 37 California Toxics Rule, 65 Fed. Reg. 31,682 (May 18, 2000) (to be codified at 40

C.F.R. pt. 131).

38 U.S. ENVIRONMENTAL PROTECTION AGENCY, BIOLOGICAL EVALUATION FOR

THE CALIFORNIA TOXICS RULE 5, 36-37 (1997).

39 California Toxics Rule, 65 Fed. Reg. at 31,689 (emphasis added).
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concluded that California’s narrative criteria for toxics are the

only way in which the health of many fish, birds, and mammals

can be accounted for in that state’s water quality standards.40

3. Criteria Must Protect the Most Sensitive Beneficial Use

When states adopt criteria, they are required to establish them

in order to protect the most sensitive beneficial use.41 For example, protection of aquatic life is clearly a more sensitive beneficial

use than shipping. When it comes to categories within uses, it is

much less clear what federal regulations require. Apparently,

the EPA’s general view is that so long as a use, such as protection

of human health, is designated generally, it need only be protected generally.42 However, where a state chooses to establish

subcategories of uses (for example, different categories of fish

such as “cool” and “cold” water), the state is obligated to provide

full protection for each subcategory. The EPA has used the

problem of states designating uses broadly to complain that its

existing regulations do not allow it to force such states to be

more specific.43

C. The EPA’s Guidance on Choosing Risk Levels for Water

Quality Standards

The EPA’s published guidance for water quality standards explains that it develops its section 304(a) recommended criteria

for human health by considering two pathways: ingestion of

water and ingestion of fish and shellfish.44 The guidance also

provides ways for states to determine human health criteria that

differ from the EPA’s recommended criteria.45 A pollutant’s toxicity or cancer potency, exposure levels and routes, and the risk

level the state seeks to establish all form the basis of an alternative human health criterion.46 The EPA draws attention to the

“serious concern” associated with human consumption of contaminated tissue, explaining that “the presence of even extremely

40 See U.S. ENVIRONMENTAL PROTECTION AGENCY supra note 38, at 35.

41 40 C.F.R. § 131.11(a)(1).

42 See EPA Water Quality Standards Regulation, 63 Fed. Reg. 36,742, 36,749-50

(July 7, 1998) (to be codified at 40 C.F.R. pt. 131).

43 See id. 44 WATER QUALITY STANDARDS HANDBOOK 3-4 (U.S. Environmental Protection

Agency ed. 2d ed. 1994).

45 Id. at 3-6–3-10.

46 Id. at 3-8.
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low ambient concentrations of bioaccumulative pollutants (sublethal to aquatic life) in surface waters can result in residue concentrations in fish tissue that can pose a human health risk.”47 The

agency further identifies, as factors relevant to health risks, differences in fish species, types of fish tissue consumed, consumption rates and patterns, and food preparation methods. Even so,

the EPA allows states to calculate criteria based on, for example,

the assumption that people remove fatty tissues (which tend to

bioaccumulate toxic contaminants) prior to consumption, an assumption that ignores significant cultural variations in food

preparation.

Fish consumption levels can dramatically alter the calculation

of what constitutes a “safe” level of toxic contamination. The

EPA’s initial guidance established four levels of fish and shellfish

consumption, none of which approximates those found in the

CRITFC study. The EPA’s consumption levels ranged from 6.5

grams per day, considered an average amount of fish for consumers and non-consumers, to 180 grams per day, representing the

“reasonable worst case.”48 According to the EPA, some states

have used twenty and thirty-seven grams per day for some waters.49 In any case, the EPA allows states to set their own risk

levels so long as they explain the rationale for the risk levels they

have chosen.50 The EPA explains that it allows for exposure to

carcinogenic pollutants at risk levels ranging from one cancer per

1,000,000 people exposed to one cancer per 10,000 people exposed “to protect average exposed individuals and more highly

exposed populations.”51 Unfortunately, the EPA does not explain whether a state may provide a risk level higher than one in

10,000 to more highly exposed populations. However, according

to the EPA, a state must include substantial support in its administrative record if it adopts criteria that provide less protection

than a one in 100,000 risk level.52

While the EPA’s guidance has generally been construed to

mean states could adopt more protective criteria for people who

consume fish at subsistence levels, the agency has indicated this

may not be true. In 1998, the EPA engaged in an Advance No47 Id. at 3-4.

48 Id. at 3-5.

49 Id. 50 Id. at 3-15.

51 Id. 52 Id.
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tice of Proposed Rulemaking (ANPRM) to explore issues concerning water quality standards.53 In the ANPRM, the EPA

indicated assent to states providing carcinogen protection to subpopulations at a risk level as high as one in 10,000, noting its

Great Lakes Guidance allows that risk level for subpopulations

in the Great Lakes Basin.54 But the EPA questioned whether

this rationale could correctly be applied to non-carcinogenic pollutants. Moreover, the ANPRM stated that the EPA “recognize[d] the need to address issues regarding different fish

consumption patterns among subsistence, minority populations.”55

While concluding that it would not be feasible for states to

equalize the risks for all levels of fish consumption, the agency

also concluded that “criteria should ensure adequate protection

of all significant populations and subpopulations from reasonable

risks.”56 The word “adequate” raises a red flag, as well it should,

for the remainder of the ANPRM addresses environmental justice issues by discussing how states can be “encouraged” (but not

required) to modify their numeric criteria to account for higher

than average fish consumption levels by subpopulations.

Other EPA guidance documents point to the agency’s belief

that local fish consumption rates should be used to set water

quality standards:

EPA encourages states and tribes to use the revised methodology to develop or revise [criteria] to reflect local conditions

appropriately. EPA believes that [criteria] inherently require

several risk management decisions that are, in many cases,

better made at the state and regional level (e.g., fish consumption rates, target risk levels).57

D. Executive Orders Related to Disparate Impacts

Two executive orders encourage the EPA to address more fully

issues of environmental justice and children’s health. But, as

53 EPA Water Quality Standards Regulation, 63 Fed. Reg. 36,742 (July 7, 1998) (to

be codified at 40 C.F.R. pt. 131). The EPA did not undertake rulemaking on waterquality standards after publishing and taking public comment on the ANPRM.

54 Id. at 36,774.

55 Id. at 36,775.

56 Id. 57 Revised Methodology for Deriving Health-Based Ambient Water Quality Criteria (2000), http://www.epa.gov/waterscience/criteria/humanhealth/method/fact

sheet.html (last visited Sept. 30, 2005).
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with all executive orders, they contain explicit clauses denying

“any right to judicial review involving the compliance or noncompliance of the United States, its agencies, its officers, or any

other person. . . .”58 Therefore, while they may stimulate thought

and action by the EPA, they are not enforceable by third parties.

1. Executive Order on Environmental Justice

Attention to environmental justice in the EPA was primarily

triggered by President Clinton’s executive order on that subject.59 This order called for agency strategies to promote enforcement of statutes in areas with minority populations, ensure

greater public participation, and improve research and data collection.60 It specifically addressed concerns about subsistence

fish consumption by encouraging federal agencies to collect and

analyze consumption patterns, communicate risks to the public,

and encourage public participation in regulatory actions.61 However, the order’s expectations concerning how agencies’ regulatory actions could better address environmental injustice are

vague; they include publishing guidance on methods of calculating human health risks that agencies “shall consider . . . in developing their policies and rules,” and inviting the public to “submit

recommendations to Federal agencies relating to the incorporation of environmental justice principles into Federal agency programs or policies.”62

2. Executive Order to Protect Children’s Health

In 1997, President Clinton signed an executive order to address

[a] growing body of scientific knowledge [that] demonstrates

that children may suffer disproportionately from environmental health risks . . . [which] arise because: children’s neurological, immunological, digestive, and other bodily systems are still

developing; children eat more food, drink more fluids, and

breathe more air in proportion to their body weight than

adults.63

Each federal agency was to make it “a high priority to identify

and assess environmental health risks and safety risks that may

58 E.g., Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 11, 1994).

59 See generally id. 60 Id. at 7630.

61 Id. at 7631.

62 Id. at 7632.

63 Exec. Order No. 13,045 (Apr. 27, 1997).
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disproportionately affect children” and to “ensure that its policies, programs, activities, and standards address disproportionate

risks to children that result from environmental health risks or

safety risks.”64

In response to the order, the EPA developed its Policy on

Evaluating Health Risks to Children, addressing the need to

safeguard the health of infants and children because they are

“among the nation’s most fragile and vulnerable populations.”65

This policy calls for the EPA to consider risks to infants and children consistently and explicitly when generating risk assessments

during decision-making processes, including setting standards to

protect public health and the environment.66

The EPA’s Children’s Health Protection Advisory Committee

(CHPAC) noted that water quality criteria are “one means by

which the EPA can regulate the prevention of contaminated fish

by mercury and ensure children’s protection from hazardous

levels of mercury.”67 The CHPAC recommended that the EPA

prevent further contamination of fish by revising the mercury criteria.68 However, despite the two executive orders’ attention to

toxic effects on children and subpopulations, neither the EPA

nor the states use the risks to these populations as the basis for

establishing water quality criteria.

II

PROTECTION AGAINST ENVIRONMENTAL INJUSTICE UNDER

TITLE VI OF THE CIVIL RIGHTS ACT

A. Title VI of the Civil Rights Act and the EPA’s

Implementing Regulations

Title VI of the Civil Rights Act of 1964 was promulgated under

the authority of the Constitution’s Spending Clause, with explicit

congressional intent to prevent recipients of federal funds from

64 Id. 65 EPA Science Policy Council: Policy on Evaluating Health Risks to Children,

http://bronze.nescaum.org/committees/aqph/memohlth.pdf (last visited Sept. 30,

2005).

66 Id. 67 J. ROUTT REIGART, OFFICE OF CHILDREN’S HEALTH PROTECTION, REPORT OF

THE CHILDREN’S HEALTH PROTECTION ADVISORY COMMITTEE REGARDING THE

SELECTION OF FIVE REGULATIONS FOR RE-EVALUATION (1998), http://yosemite.

epa.gov/ochp/ochpweb.nsf/content/whatwe_reg_rprt.htm.

68 Id.
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98 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]

engaging in discrimination:69 “No person in the United States

shall, on the ground of race, color, or national origin, be excluded

from participation in, be denied the benefit of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance.”70

The Act does not address “disparate impact” discrimination, a

facially neutral practice which has discriminatory effects on a

protected class of people, but authorizes federal agencies to

adopt regulations to effect the provisions of section 601.71 In

1973, the EPA promulgated regulations to implement Title VI,

revising them in 1984.72 The regulations apply to recipients of

EPA program funding such as states, which typically rely upon

the EPA for assistance in developing their water quality standards.73 The regulations specifically incorporate section 303 of

the CWA, which includes the development of both water quality

standards and TMDLs to implement those standards.74

The substantive portion of the EPA’s implementing regulations prohibits any program or activity receiving EPA assistance

from denying “a person any service, aid or other benefit that is

different, or is provided differently from that provided to others

under the program” or “[r]estrict[ing] a person in any way in the

enjoyment of any advantage or privilege enjoyed by others receiving any service, aid, or benefit provided by the program or

activity.”75 The regulations further prohibit recipients of EPA

funds from engaging in any disparate-impact discrimination.76 In

69 42 U.S.C.A. § 2000(d) (2005).

70 Id. 71 42 U.S.C.A. § 2000(d-1) of the Act orders agencies to prepare regulations to

implement 42 U.S.C.A. § 2000(d).

72 Nondiscrimination in Programs Receiving Federal Assistance From the Environmental Protection Agency, 49 Fed. Reg. 1656 (Jan. 12, 1984) (to be codified at 40

C.F.R. pt. 7).

73 40 C.F.R. § 7.15. This applies to EPA assistance beginning February 13, 1984.

74 The regulations include activities listed in Appendix A Catalogue of Federal

Domestic Assistance under the 66.000 series. Item 21 of Appendix A lists section

303 of the CWA, which includes the development of standards, impaired waters lists,

and TMDLs. Id. 75 40 C.F.R. § 7.35(a)(2)-(3).

76 40 C.F.R. § 7.35(b) states that:

a recipient shall not use criteria or methods of administering its program or

activity which have the effect of subjecting individuals to discrimination

because of their race, color, national origin, or sex, or have the effect of

defeating or substantially impairing accomplishment of the objectives of

the program or activity with respect to individuals of a particular race,

color, national origin, or sex.
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Environmental Injustice 99

addition, the regulations require federally supported programs in

which the recipient has previously discriminated to take affirmative action to remedy the injuries caused by the discrimination.77

B. Restrictions on Enforcement of the EPA’s

Implementing Regulations

Unfortunately, to the extent that the EPA’s Title VI regulations are broader than permitted under Title VI, no private right

of action exists to enforce them.78 After the Supreme Court’s

decision in Alexander v. Sandoval,

79 it is highly likely that any

agency disparate impact regulation exceeds the bounds of Title

VI and the Constitution. Therefore, EPA regulations which prohibit disparate impact discrimination likely are not enforceable

by a third party. To date, the EPA has not found a single violation of its Title VI implementation regulations.80

This should not come as a complete surprise if one reviews

what the EPA is attempting to achieve through its programs to

address environmental injustice. The EPA starts auspiciously

77 40 C.F.R. § 7.35(a)(7).

78 Alexander v. Sandoval, 532 U.S. 275, 293 (2001). In Sandoval, the Court held

that a private right of action is not available to enforce disparate-impact regulations

promulgated under 42 U.S.C.A. § 2000(d-1)(2005).

79 Id. 80 In Cannon v. University of Chicago, 441 U.S. 677, 710-15 (1979), the U.S. Supreme Court stated that actions may not be brought against federal agencies for

failing to enforce their own section 602 regulations. The Court based its statement

upon evidence in the legislative history of Title VI that Congress had resisted the

concept of private suits against the federal government. The Court thus described

Title VI as embodying “a compromise aimed at protecting individual rights without

subjecting the Government to suits.” Id. at 715. Although potential plaintiffs lack a

private right of action to make states and other recipients of EPA funds comply with

Title VI regulations, they may be able to force the EPA to comply with Title VI by

using the Constitution to challenge an act of discrimination by the EPA or a federal

funding recipient. Id. at 715 n.51. The Supreme Court has consistently held that

Title VI is coextensive with the Due Process and Equal Protection clauses of the

Fourteenth Amendment, which apply to state and local governments, and Justice

O’Connor recently reiterated that view in Grutter v. Bollinger. 539 U.S. 306, 343

(2003). Long ago, in Bolling v. Sharpe, 347 U.S. 497, 499 (1954), a companion case

to Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court held that

the Equal Protection clause also applies to the federal government through the Due

Process clause of the Fifth Amendment. The EPA or any “state actor,” including

those exercising any delegated authority beyond simple receipt of EPA funds, can be

held accountable for any constitutional violation. However, official action is not

unconstitutional solely because it results in a racially disproportionate impact; proof

of racially discriminatory intent or purpose is required to show violation of the

Equal Protection clause. Village of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252, 264-65 (1977).
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100 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]

enough, defining environmental justice as “the fair treatment and

meaningful involvement of all people regardless of race, color,

national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”81 Environmental justice is achieved,

according to the EPA, “when everyone enjoys the same degree

of protection from environmental and health hazards and equal

access to the decision-making process to have a healthy environment in which to live, learn, and work.”82

However, the EPA’s lofty goals break down as soon as the

agency sets forth its intentions for accomplishing them. The

agency’s focus rests not on the external pollution sources causing

the problem in the first place, but on tribal responses. Listed in

its reports generated in response to the Executive Order on Environmental Justice83 of past, present, and future EPA, state, and

tribal activities, are primarily more reports providing grants and

training to groups and tribes creating internships and conducting

outreach to affected communities. To date, the water qualitybased program, administered by the EPA’s Office of Wetlands,

Oceans, and Watersheds (OWOW), has focused on providing

tribes with grant money and training, establishing a national

database on fish consumption advisories, and helping tribes establish fish consumption advisories and water quality standards

for tribal waters.84 This narrow focus ignores the broader concern of cleaning up polluted waters that are not on tribal lands;

such an effort should start with states setting water quality standards that provide tribal members and other frequent fish consumers with equal protection from the risks of toxic chemicals.

The future looks just as dubious when it comes to integrating

environmental justice concerns into the protections afforded by

water quality standards and the TMDLs implementing those

standards. Again, the EPA has lofty-sounding goals: the EPA’s

objectives for the near future are, for example, to (1) ensure lowincome and minority populations are given adequate public notice of opportunities to participate in the “next round” of states’

81 U.S. EPA Environmental Justice Home Page, http://www.epa.gov/compliance/

environmentaljustice/.

82 Id. 83 Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 16, 1994).

84 U.S. ENVIRONMENTAL PROTECTION AGENCY OFFICE OF WATER, FY2003 ENVIRONMENTAL JUSTICE PROGRESS REPORT 5-7, available at http://www.epa.gov/compliance/resources/reports/accomplishments/ej/ow-ej-progress-rpt-2004.pdf.
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Environmental Injustice 101

and tribes’ triennial reviews, (2) assist tribal governments in

adopting standards, and (3) develop fish-consumption advisories

to “protect targeted communities.”85 Specific pollution clean-up

goals also are adopted to protect human health by making fish

and shellfish safe to eat. For example, the EPA has adopted a

2008 target to “improve the quality of water and sediments to

allow increased consumption of safe fish in not less than 3 percent of the water miles/acres identified by states or tribes as having a fish consumption advisory in 2002.”86 Also by 2008, the

EPA hopes that all states and tribes will have adopted the new

fish tissue criterion for mercury, and that states and tribes will

have adopted and applied national fish advisory guidance to their

local waters.87

However, the EPA’s targets and projects avoid the obvious:

regulatory changes. The EPA’s plans are silent on assuring that

state water quality standards protect low-income and minority

populations, or that states use the standards’ gap-filling attributes

in conjunction with implementation methods to achieve such

protection. The EPA’s targets and projects likewise are silent on

any other regulatory actions that the EPA could take to ensure

its clean-up objectives are met.

III

OREGON’S FAILURE TO PROVIDE EQUAL PROTECTION TO

HUMAN SUBPOPULATIONS IN THE FACE OF SUBSTANTIAL

DATA REQUIRES EPA ACTION

A. In Updating its Water Quality Standards for Toxic

Pollutants, Oregon Ignored Evidence of Elevated

Fish Consumption Rates

Oregon generally conducts its triennial reviews with the assistance of two advisory committees, a Technical Advisory Committee (TAC) and a Policy Advisory Committee (PAC). Initially,

the ODEQ asked its TAC to review what could be done to address the results of the CRITFC study.88 In its sole recommenda85 U.S. ENVIRONMENTAL PROTECTION AGENCY OFFICE OF WATER, FISCAL YEAR

2004 & 2005, ACTION PLAN TO INTEGRATE ENVIRONMENTAL JUSTICE 8, http://www.

epa.gov/compliance/resources/reports/actionplans/ej/ow-ej-actionplan2004.pdf.

86 U.S. ENVIRONMENTAL PROTECTION AGENCY, 2003-2008 STRATEGIC PLAN: DIRECTION FOR THE FUTURE 34 (2003), http://epa.gov/ocfopage/plan/2003sp.pdf.

87 Id. at 39.

88 FITZPATRICK, supra note 8, at H-35.
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102 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]

tion on human health protection with any practical ramifications,

the TAC proposed that the ODEQ use different fish consumption rates based on actual or predicted levels of consumption.89

The TAC’s recommendations were then forwarded to the PAC,

an industry-dominated group. Apparently, no sector of industry

was willing to support such an approach, perhaps because increasing fish consumption rate assumptions would have the direct effect of lowering the allowable levels of toxic pollutants in

the environment. Indeed, the majority of PAC members seemed

to take the position that the inequities inherent in developing

water quality standards should be borne by the designated users,

including consumers of contaminated fish, not by the pollution

sources. The PAC rejected the TAC’s proposal of a three-tiered

fish consumption approach because, as the ODEQ later explained, it could “possibly lead to inequities . . . leading to situations where a source might have to comply with a criterion more

strict than designated for its location in order for the water to

meet a more strict criterion downstream.”90 The PAC’s inability

to agree on the TAC’s recommendations left Oregon without the

political consensus—or political cover—it needed to establish a

higher level of protection than that provided by the EPA’s recommended criteria. As a result, Oregon decided to wholly ignore the results of the CRITFC fish consumption survey, a study

that was never questioned by the TAC, PAC, or ODEQ staff.

In describing the triennial review process, the ODEQ stated

that “[i]nitially, the TAC indicated that the choice of which [technically defensible] rate to employ was a policy decision to be

made based on which population or subpopulation Oregon

wished to protect.”91 This finding was based on the TAC’s conclusion that all of the following rates were scientifically defensible: (1) the EPA national average rate, (2) the ninety-ninth

89 Id. at H-38–H-41.

90 Id. at H-58. The concern about downstream criteria is odd because other Oregon criteria have this very same effect. For example, temperature, which is not applied equally throughout a river system but is based on compliance with that

criterion at the point farthest downstream. Federal regulations actually require

states, when designating uses and setting appropriate criteria, to “take into consideration the water quality standards of downstream waters and . . . ensure that . . . water

quality standards provide for the attainment and maintenance of the water quality

standards of downstream waters.” 40 C.F.R. § 131.10(b) (2005). It is, perhaps, a

measure of the ODEQ’s desperation to avoid the CRITFC study results that it was

swayed by such a specious argument.

91 FITZPATRICK, supra note 8, at H-36.
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Environmental Injustice 103

percentile national rate of 142.4 grams per day that the EPA offers “as a value that can be used if states desire to protect subsistence anglers,” and (3) the fiftieth and ninety-ninth percentile

rates from the CRITFC study (63.5 and 389 grams per day, respectively).92 Left unaddressed was whether the TAC believed

that doing nothing, as the ODEQ ultimately did with the

CRITFC information, was scientifically defensible. One is left

with the clear impression that the TAC did not.

Oregon attempted to explain its decision to ignore the legal

and policy concerns raised by the TAC, the public, and the

CRITFC data. In documents supporting the triennial review, the

ODEQ recommended using the 17.5 grams per day national average fish consumption rate “until such time that sufficient information is available to completely apply the 2000 EPA

Methodology in deriving criteria.”93 ODEQ said nothing about

what was insufficient in this multimillion dollar study. The state

also noted that its choice to use the national average rate was

“consistent with the lowest fish consumption rate recommendation of both EPA and the TAC.”94 It offered three rationales for

this approach: (1) the likelihood of EPA approval, (2) the avoidance of “equity issues raised by some PAC members over the use

of TAC-recommended multiple fish consumption levels,” and (3)

the provision of “greater protection to subsistence fisher subpopulations within the State than currently exists.”95

These are curious statements at best. First, if EPA approval

were truly the primary goal of the triennial review process, the

ODEQ presumably would have chosen a path consistent with the

EPA’s Title VI regulations, particularly given the fact that the

EPA paid for the CRITFC study.

Second, by stressing the avoidance of equity issues, the ODEQ

makes clear that the “equity issues” the state truly cares about

are the negative effects on polluters of complying with requirements tailored to individual water bodies, not health effects on

subsistence populations. In addition to being ironic, this concern

is irrelevant because, by definition, the CWA’s water qualitybased provisions already create unequal conditions for point

source polluters. By law, effluent limits are set on the basis of

92 Id. 93 Id. at H-76.

94 Id. (emphasis added).

95 Id.
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104 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]

stream size, status of the water body (e.g., impaired or not), and

the pollution contributions of other regulated and unregulated

sources.96 Also, different designated uses in a water body can

generate dissimilar effluent limits, such as the presence or absence of salmonid spawning. Since the criteria are intended to be

tied to the foundation of water quality standards—the designated

uses—the correct approach sets the criteria for toxics based on

the needs of those uses. The ODEQ’s statement that it wants to

employ a one-size-fits-all approach to toxics merely clarifies for

the record that it does not intend to protect all designated uses

equally. Rather, it is placing a higher priority on treating all dischargers equally. That is not the proper goal for setting water

quality standards, as the EPA recently clarified.97

The ODEQ’s third purported justification for its decision to

use the national average—that it “provides greater protection to

subsistence fisher subpopulations within the State than currently

exists”—is factually true, but wholly irrelevant.98 Given that the

EPA’s national consumption rate increased, the ODEQ could

not arbitrarily ignore it in favor of the now outdated 6.5-gramsper-day basis for previous criteria without risking certain EPA

disapproval. Thus, it had to increase the rate to comply with

EPA guidance. However, use of a higher rate for all Oregon citizens does not provide greater protection to subsistence fisher

subpopulations and other frequent fish consumers; it merely continues the status quo of providing less protection for them in relation to the general population. In light of the CRITFC data,

that lesser level of protection is shockingly low. The claim that

use of the EPA’s new national average suggests Oregon is attempting to protect subsistence fishing populations is simply

disingenuous.

B. The EPA Has Authority to Remedy Oregon’s Failure to

Protect Frequent Fish Consumers

1. The EPA Should Disapprove Oregon’s Toxic Criteria

If the EPA determines Oregon’s water quality standards are

inconsistent with CWA requirements, the agency has authority to

disapprove Oregon’s toxic criteria and can promulgate replace96 See supra, note 32.

97 See Water Quality Standards for Kentucky, 67 Fed. Reg. 68,971, 68,975 (Nov.

14, 2002).

98 FITZPATRICK, supra note 8, at H-76.
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Environmental Injustice 105

ment criteria if the state fails to make the necessary changes.99

The EPA can also make changes to Oregon’s standards in the

absence of a submittal from the state.100 Finally, the EPA can

take other actions—not directly related to changing the published criteria—that would remedy the failure of Oregon’s toxics

standards to protect low income, minority, and tribal

populations.

For instance, the EPA can disapprove Oregon’s water quality

standards as inconsistent with EPA regulations promulgated

under Title VI of Civil Rights Act. Oregon has received, and

continues to receive, federal funds in support of both its overall

water quality program (including development of water quality

standards) and its triennial-review program.101 Therefore, those

programs must comply with the EPA’s Title VI regulations.102

As such, the ODEQ is not only prohibited from developing

water quality standards that discriminate against subpopulations

based on race, national origin, or gender, but it is affirmatively

required to provide water quality standards that remedy past discrimination.103 The prohibition against discrimination means the

ODEQ must protect subpopulations from health risks created by

toxic contaminants, and cannot seek to remedy unequal protection through fish consumption advisories that ask subpopulations

to restrict their use of water for activities such as fishing.

The EPA can also disapprove Oregon’s toxic criteria because

they are inconsistent with both the state’s antidegradation policy

and with federal regulations requiring that existing uses be protected.104 Likewise, where Oregon’s toxic criteria likely fail to

protect frequent fish consumers at a minimum risk level of one

cancer per 10,000 exposed people, the EPA’s disapproval could

be based on Oregon’s failure to protect designated uses adequately.105 Finally, since as discussed below the EPA has discre99 33 U.S.C.A. § 1313(c)(4)(A) (2005).

100 33 U.S.C.A. § 1313(c)(4)(B).

101 See, e.g., PERFORMANCE PARTNERSHIP AGREEMENT BETWEEN THE OREGON

DEPARTMENT OF ENVIRONMENTAL QUALITY AND THE U.S. ENVIRONMENTAL PROTECTION AGENCY – REGION 10 FOR JULY 1, 2004 – JUNE 30, 2006 (2004), http://

www.deq.state.or.us/about/ppa/ppa.pdf.

102 40 C.F.R. § 7.35(b).

103 40 C.F.R. § 7.35(a)(7).

104 33 U.S.C.A. § 1313(d)(4)(B).

105 33 U.S.C.A. § 1313(c)(4)(B); See DEQ WATER QUALITY STANDARDS TRIENNIAL REVIEW TOXICS TECHNICAL ADVISORY COMMITTEE, MEETING SUMMARY

(2001), http://www.deq.state.or.us/wq/standards/TOXMeetSUM0901.pdf.
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106 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]

tion to set fish consumption levels at “lower yet adequate” levels

in a TMDL, it follows that it also has discretion to override state

criteria it deems inadequate.106

2. The EPA Has Authority to Use Oregon’s Narrative

Criterion for Toxics

One approach to filling the gaps created by Oregon’s inadequate numeric criteria for toxics, apart from reviewing the

numeric criteria themselves, is use of the state’s narrative criteria.

Oregon has an extensive and detailed narrative criterion for toxic

pollutants that far exceeds the more typical state narrative pronouncement that toxics not be present in “toxic amounts”:

[T]oxic substances may not be introduced above natural background levels in waters of the state in amounts, concentrations, or combinations that may be harmful, may chemically

change to harmful forms in the environment, or may accumulate in sediments or bioaccumulate in aquatic life or wildlife to

levels that adversely affect public health, safety, or welfare or

aquatic life, wildlife, or other designated beneficial uses.107

The ODEQ, however, has not created the required methodology for interpreting its narrative toxics criteria, either for point

sources, as required by EPA regulations,108 or for any other purpose. Without this implementation methodology, the narrative

criteria are widely ignored when Oregon makes regulatory decisions where the criteria should be interpreted and applied, such

as the development of TMDL clean-up plans, issuance of National Pollutant Discharge Elimination System (NPDES) discharge permits, and certification of certain federal actions (such

as dredging and dam operations).109

The EPA has the authority, and a mandatory duty, to remedy

Oregon’s failure to adopt a narrative-criterion implementation

106 See infra p. 43 and note 113.

107 OR. ADMIN. R. 340-041-0033(1) (2005). It is important to note that the language of the rule has been changed from “[t]oxic substances may not be introduced. . .” to “[t]oxic substances shall not be introduced. . .” (emphasis added).

Although the language has been changed, it has not yet been approved or disapproved by the EPA. The original language of the rule, and a discussion thereof, is

available at ODEQ WATER QUALITY DIVISION, ASSESSMENT METHODOLOGY FOR

OREGON’S 2004 INTEGRATED REPORT ON WATER QUALITY STATUS 42-48 (2004),

http://www.deq.state.or.us/wq/303dlist/docs/AssessmentMethodology2004.pdf.

108 40 C.F.R. § 131.11(a)(2).

109 See, e.g., Columbia Slough TMDL, http://www.epa.gov/waters/tmdldocs/ColSloughTMDL.pdf.
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Environmental Injustice 107

methodology that can be used to ensure the health of frequent

fish consumers.110 The state’s failure in that regard has essentially rendered its narrative criteria meaningless.

A similar omission is Oregon’s failure to comply with the requirement that states use biological monitoring or assessment

methods to generate criteria addressing pollutants for which the

EPA has no recommended numeric criteria.111 ODEQ has failed

to adopt numeric criteria since 1988, when Oregon last established any numeric criteria for priority toxic pollutants. The EPA

can, using its authority to revise Oregon’s standards to meet

CWA requirements, promulgate criteria that will ensure regulation of pollutants for which there are no numeric criteria.112 In

doing so, the EPA could establish standards that reflect actual

fish consumption rates.

The EPA has discretion to consider environmental justice issues when it implements water quality standards by establishing

TMDLs; however, it is not required to do so.113 Most TMDLs—

as well as the CWA 303(d) list identifying impaired waters in

need of TMDLs—are developed by states. As with water quality

standards however, EPA approval or disapproval is required.114

Given that the requirement for TMDLs is that they be “established at a level necessary to implement the applicable water

quality standards,” the EPA has broad discretion to determine

that TMDLs allowing high risk levels for frequent fish consumers

are inconsistent with state standards.115 The EPA can require

Oregon to interpret and apply its own narrative criteria on toxics,

criteria which the EPA has implicitly sanctioned (but which Oregon has not done). The EPA could also require Oregon to ensure its TMDLs fully support designated uses, and determine

that “full support” includes protecting frequent-fish consum110 33 U.S.C.A. § 1313(c)(4)(A); 40 C.F.R. § 131.11(a)(2).

111 33 U.S.C.A. § 1313(c)(2)(B).

112 33 U.S.C.A. § 1313(c)(4)(B).

113 See Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517 (9th Cir. 1995). When

the EPA set a TMDL for dioxin in the Columbia River Basin, environmental groups

challenged EPA’s use of the then-applicable 6.5 grams per day national average fishconsumption rate, arguing that EPA should have used 150 grams per day to protect

tribal members. The Ninth Circuit upheld the EPA’s choice of a “lower yet adequate” risk level because it concluded the federal agency was not required to protect

subpopulations at the same risk level as the general public. Id. at 1524.

114 33 U.S.C.A. § 1313(d)(2).

115 33 U.S.C.A. §1313(d)(1)(c).
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108 J. ENVTL. LAW AND LITIGATION [Vol. 20, 2005]

ers.116 Finally, the EPA could require the state’s TMDLs to treat

frequent fish consumption as an “existing use” that, while not

specifically designated, must be protected to meet the standards’

antidegradation policy.117

The EPA also must take action where Oregon simply refuses

to act.118 The state’s failure to adopt new mercury criteria demonstrates the lengths to which it will go to avoid protecting its

citizens—particularly low income and minority populations. In

its recent triennial review, Oregon initially proposed adopting

the EPA’s new recommended criterion for methylmercury (.3

mg/kg).119 Unlike other criteria, which apply to ambient water,

the methylmercury criterion applies directly to fish tissue.120

Thus, this criterion is even more obviously linked to the national

average fish consumption figure used to develop it. The EPA’s

notice of availability of the methylmercury criterion itself emphasizes the issue of using appropriate fish consumption levels: “[f]or

exposure assessment, States and authorized Tribes are encouraged to use local studies on human fish and shellfish consumption that better reflect local intake patterns and choices.”

In the absence of local data, EPA recommends separate default

fish consumption values for the general population, recreational

fishers and subsistence fishers.121

Oregon proposed adopting neither of these approaches, simply

disregarding its credible evidence on actual consumption levels in

certain subpopulations. At the conclusion of its public process,

the ODEQ opted to forgo adoption of any new criterion for mercury,122 despite the pollutant’s widespread presence in Oregon

waters, state fish consumption advisories issued for mercury, and

the ongoing development of TMDLs to address unsafe levels of

mercury in Oregon fish.123 Oregon’s failure to conform to the

116 33 U.S.C.A. § 1313(d)(2).

117 40 C.F.R. § 131.12(a)(1).

118 See 33 U.S.C.A. § 1313(c)(3).

119 Hallock, supra note 4, at 5.

120 See Water Quality Criteria: Notice of Availability of Water Quality Criterion

for the Protection of Human Health: Methylmercury, 66 Fed. Reg. 1344, 1345 (Jan.

8, 2001).

121 Id. at 1346.

122 Hallock, supra note 4, at 1, 5.

123 Had Oregon adopted the new-tissue criterion for methylmercury it would have

had to face what it has ignored for so long, namely, a methodology with which to

apply the criterion. Clearly, the EPA did not intend the criterion to be adopted by

states and then ignored; in fact, the opposite is true because the EPA’s availability
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Environmental Injustice 109

CWA requirement that any triennial review incorporate new or

revised EPA criteria for toxic contaminants provides the EPA an

easy rationale for promulgating federal mercury criteria for the

state.

CONCLUSION

While a third-party challenge to Oregon’s updated toxic criteria under EPA regulations implementing the Civil Rights Act appears to be precluded, a challenge to the EPA’s approval of the

standards based on their inconsistency with other federal guidance and regulations could be successful. Regardless, the EPA

has multiple bases for disapproving Oregon’s standards as insufficient to protect tribal members and others who consume fish in

excess of national averages. The strength of the CRITFC data

make this an excellent test case for either a third-party challenge

or an EPA action.

notice discusses the criterion’s role in permit approval and fish advisories. Water

Quality Criteria: Notice of Availability of Water Quality Criterion for the Protection

of Human Health: Methylmercury, 66 Fed. Reg. at 1349. The EPA’s notice extensively discusses the various methods by which states can apply their tissue criterion

to determine levels of methylmercury in fish and water. The EPA states that an

implementation policy is necessary to establish sampling protocols and to attain the

criterion, NPDES permitting and TMDL development, and source management and

control strategies. Id. at 1357.
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