UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 10 

Ms. Maia Bellon, Director 

Department of Ecology 

P.O. Box 47600 

Olympia, Washington 98504-7600 

Dear Director Bellon: 

1200 Sixth Avenue, Suite 900 

Seattle, WA 98101-3140 

JUN 2,1 2013 

OFFICE OF THE 

REGIONAL 

ADMINISTRATOR 

The U.S. Environmental Protection Agency appreciates your continued efforts to adopt human health 

water quality criteria to better ensure health protection for Washington residents. The EPA's 

understanding is that the Department of Ecology (Ecology) is on pace to propose a draft rule this winter. 

However, most recently, a number of stakeholders in the process have asked for our technical views on 

the budget proviso in Washington State Senate Bill 5034 .. The proviso, if enacted, would have 

significant impacts on Ecology's process and progress. Therefore, I would like to reiterate our 

perspectives on several technical issues that are relevant to your work. 

As you are aware, the EPA has been asked on several occasions to share its perspectives on the water 

quality criteria revisions underway in Washington and Idaho and how we view these efforts in relation 

to Oregon's revised human health criteria that were derived using a fish consumption rate of 175 grams 

per day, which the EPA approved in 2011. There has been much discussion in the current state processes 

about appropriate fish consumption rates, which are used to derive the human health criteria. The EPA 

also has been asked by the tribes and environmental groups, in particular, to intervene in the Washington 

and Idaho rulemaking processe~ and to exercise available authorities under the Clean Water Act. 

When the EPA reviews state and tribal water quality standards for approval or disapproval, the EPA 

must ensure that criteria are based on a sound scientific rationale consistent with 40 CFR § 131.11(a). 

The EPA believes there are scientifically sound regional and local data available in Washington that are 

sufficient for Ecology to move forward in choosing a protective and accurate fish consumption rate at 

this time. These data were thoroughly anal}7zed in Ecology's Fish Consumption Rates Technical Support 

Document, which was recently finalized. The1 est .vailable science includes evidence of consumption 

rates well above 6.5 grams per day among high fish consumers and shows that the human health criteria 

currently in effect for Clean Water Act purposes in Washington are not sufficiently protective. In 

Oregon's case, the EPA disapproved human health criteria similar to the currently applicable human 

health criteria for Washington under the National Toxics Rule (NTR). Oregon subsequently submitted, 

and the EPA approved, new human health criteria derived using a fish consumption rate of 175 grams 

per day, supported by sound scientific data. 

As noted previously, choosing a fish consumption rate for deriving human health water quality criteria is 

a curren! discussion topic in both Washington and Idaho. As you are aware, the EPA disapproved 

Idaho's human health criteria derived using a fish consumption rate of 17.5 grams per day because Idaho 

did not consider the available information relevant to fish consumption when calculating their human 

health criteria. The EPA believes that there are sufficient regional and local fish consumption data 

available to revise human health criteria in both Washington and Idaho, although the EPA has 

acknowledged that there are less state-specific data in Idaho on higher consumers. In Washington, in 
contrast with Idaho, the EPA believes that there are a number of scientifically sound data results specific 

to surveys conducted in the State for several population groups, including tribes, Asian Pacific Islanders, 

and recreational anglers. · 

We recognize the immense amount of work that Ecology has done. to host a number of public meetings 

as part of the state rulemaking process, and we have appreciated participating in those discussions. We 

also acknowledge the challenges still to come in making final decisions about the rule revisions, 

including implementation tools. The EPA is committed to working with Washington as they move 

forward on their rulemaking, and to helping ensure the rulemaking proceeds in a timely manner, with 

sound scientific data supporting decision-making. The EPA's commitment to support Washington 

State's process is consistent with the EPA's strong preference to support states in their development of 

water quality standards that are protective of designated uses rather than to develop standards at the 

national level. 

However, should Washington's process be unnecessarily delayed, the EPA has the authority to amend 

the NTR human health criteria for Washington, which the EPA originally pro~ulgated in 1992. Pursuant 

to Clean Water Act Section 303(c)(4)(B) and 40 CFR § 131.22(b), the EPA promulgated the NTR for 

states not complying with Section 303(c)(2)(B) of the Clean Water Act, which states," ... State[s] shaV 

adopt criteria for all toxic pollutants listed pursuant to section 307(a)(l) of this Act for which criteria 

have been published under section 304(a), the discharge or presence of which in the affected waters 

could reasonably be expected to interfere with those designated uses adopted by the State, as necessary 

to support such designated uses." As previously noted, since 1992, several national, regional, and local 

surveys have been conducted that provide scientifically sound information that fish consumption levels 

are considerably higher than 6.5 grams per day in Washington. In discussing this federal authority, the 

EPA has noted that a federal rulemaking would likely focus on human health criteria and not include the 

implementation tools currently being evaluated in the state rulemaking process. 

I look forward to our continued work together on this very important issue for the health and protection 

of all Washington citizens. If you would like to discuss further the topics I've addressed, please contact 

me directly or Dan Opalski, our Director for the Office of Water and Watersheds, at (206) 553-1855. ,. 

cc: The Honorable Billy Frank, Jr., Chairman 

Northwest Indian Fisheries Commission 

Dennis J. McLerran 

CJ·~? Regional Administrator 

The Honorable Brian Cladoosby, Tribal Chairman 

Swinornish Tribe 

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