# Northwest Indian Fisheries Commission 6730 Martin Way

**~.,** Olympia,

**W~hlngton** 98516-5540

**Phon~** (360)

**43S~**1180 www.nwU'c.org FAX # 753-8()59

Michael Bussell, Director Office ofWaterand Watersheds U.S. EPA, Region 10 1200 Sixth Avenue, Suite 900 Seattle, WA 98101 September7, 2012

Re: EPA engagement in Washington's development ofwaterquality standards and attendingfish consumption rates. Dear Director Bussell, The Northwest Indian Fisheries Commission and its membertribes would like to drawyour attention to the delays and lack ofprogress bythe state ofWashington in adopting revised water qualitystandards1 that adequately protectthe health ofthe people ofWashington with respect to toxic chemicals in sediment, water, and fish. The recent approach to water qualitystandard rulemaking and the subsequent adoption ofrevised fish consumption rates {FCR) outlined by the Director ofthe Washington State Department of Ecolog/ {Ecology) will continue to puttribal people in Washington at agreater risk ofexposure to toxic chemicals. As stated in the August 24, 2012 letterfrom NWIFC Chairman Billy Frank, Jr. to Regional Administrator Dennis Mclerran,the tribes have requested thatthe EPA exercise its critical role as federal trustee oftreaty-reserved resources and steward ofthe Clean WaterAct in the review of Ecology's actions and proposals, and consult with tribes throughoutthe process. Furthermore, the tribes requested that EPA exercise its authorityto assure that protective waterquality standards and attendingfish consumption rates will be adopted as soon as possible. The purpose ofthis letter is to underscore the tribes' call for EPA action, and to provide more detail on the recent history of the fish consumption rate issue. The Relationship ofTreaty Rights, Water Quality Standards, and Fish Consumption Rates The Northwest Indian Fisheries Commission is composed ofthe 20 treaty-tribes in western Washington who have treaty-reserved rights to harvestvarious natural resources in their usual and accustomed areas. These rights have been upheld numeroustimes by federal courts, and pertain to resources, such

1 In this letter "water quality standards" refers to both the sediment and surface water quality standards found in Washington's Administrative Code. 2 Open LetterfromTed Sturdevant, July 16, 2012 1as salmon and shellfish- the cornerstone oftribal cultures, economies, and way of life. Although these rights are secured by the U.S. Constitution as the supreme law ofthe land, they are nonetheless, susceptible to the dangers of historical and modern industrial practices. Toxic sediments and effluents contribute to both the subtle and sometimes overt degradation ofaquatic resources. Moreover, many ofthese pollutants enterthe food chain and expose both tribal and non-tribal communities to chemicals that cause awide variety ofserious health problems, including but not limited 

### to, cancer, neurological disorders, and endocrine disruption. As you are aware, Washington's water quality standards play a critical role in protectingtreaty-reserved aquatic resources and the communities who depend on them. By setting limits for pollutants, the water quality standards serve as the primary accountability mechanism to ensure that polluting activities and toxic cleanups are complying with goals ofthe Clean WaterAct and protectingthe beneficial uses of state and tribal waters. Unfortunately, the fish consumption rates (FCR) found in Washington's existing water quality standards are not accurate, and therefore lead to under-protective regulations that govern the discharge and cleanup oftoxic contaminants. These FCRs are found in both the Department of Ecology's sediment management standards and surface water quality standards
. The Clean WaterAct reserves the role of review and approval ofthe water quality standards to the EPA in an effortto maintain accountability and ensure accurate pollution limits. This federal role is significant to the membertribes, because EPA- as afederal trustee oftreaty-reserved resources- is responsible forthe protection and stewardship oftribal aquatic resources as well as ensuring implementation ofthe Clean WaterAct. The EPA has previously exercised this role in reviewing and approving both the sediment management and surface water quality standards, because the review and approval of both ofthese elements falls directly within the scope of EPA's authorities.3At thisjuncture, it is importantthat EPA continue to exercise these roles in the context ofWashington's development of fish consumption rates forthe water quality standards. History of Efforts to AdoptAccurate Fish Consumption Rates in Washington EPA and Ecology have long been aware that existing FCRs in Washington do not reflect accurate exposure levels. Since at least 1994, the state and federal agencies were in receipt ofthe Columbia River Inter-Tribal Fish Commission (CRITFC) report detailing tribal FCRs. In 1999, Ecology released a report4 synthesizing fish consumption data, and formally acknowledging the existing inaccuracies. The emergence ofthese reports and the subsequent state and federal government's acknowledgement of the FCR deficiencies prompted some observers to believe the state would soon address these

3 See Letter from Randall FSmith, Director ofOffice ofWater EPA R10 to Megan White and Jim Pendowski, Ecology, in which EPA discusses which standards are applicable underthe CWA in 1999
. See also Nw
. Envtl
. Advocates v . EPA, 3:05-CV-01876-AC, 2012 WL653757 {D. Or. Feb. 28, 2012) clarifying the scope of EPA review and approval ofstate programs and standards affecting implementation ofwater quality standards
. 4 Leslie Keill & Lon Kissinger, Washington State Department of Ecology, Analysis andSelection ofFish Consumption Ratesfor Washington State RiskAssessments and Risk-BasedStandards (Draft, 1999)
. 2shortcomings. In an article published in 2000, the author noted that the "[t]he Washington State Department of Ecology, at least, is well along in the process of revising its standards' assumptions regarding fish consumption in light ofthe studies produced by the Puget Sound and Columbia River Basin tribes."5 Tribal health issues related to fish consumption were raised during the review of revisions to the state's surface water quality standards in 2002-2003. In a letterfrom the Confederated Tribes ofthe Umatilla Reservation to then Ecology DirectorTom Fitzsimmons6 the Tribes stated that, "Standards forthe water quality offish habitat must be protective of both aquatic life and ofthe health oftribal members consuming the fish in accordance with treaty reserved rights." Overthe last fewyears, the tribes have been working directly with the Department of Ecology in another attemptto finally rectify the inaccurate FCRs, and ensure adoption ofthe revisions. Tribes were initially encouraged when Ecology DirectorJay Manning made a commitment to complete human health criteria in waterquality standards within the term ofthe current administration. Ecology Director Ted Sturdevant reaffirmed this commitment, and an Executive Oversight Committee was formed composed oftribal leaders, Ecology, and EPA to ensure progress. Ecology had proposed, and the tribes reluctantly agreed, to review and adoptfish consumption rates as part ofthe sediment management standards before proceeding to human health criteria in the surface water quality standards. This pathway to revise FCRs included several important deliverabies to be completed by the end ofthe current administration'sterm:
• The development ofaguidance documentthat clarifies importanttechnical issues and a recommended range ofconsumption rates based on locally available scientific data; and • The promulgation ofa default FCR in the sediment management standards. However, as theJuly 16, 2012 open letterfrom Ted Sturdevant indicates, the Department of Ecology is again changing its approach to revising FCRs. This is presumably because Ecology has been receiving a lot of pushback from industries and municipalitieswho vehemently oppose raising the FCR due to increased costs associated with meetingthe stricter standards. Without consulting, let alone receiving support from the tribes, Ecology has delayed publication oftheirtechnical support document (guidance) and stripped the document of importanttechnical clarifications. Even more significantly, Ecology is no longer proposing to promulgate a default FCR in the standards. Instead, Ecology is proposing to use a site-specific rate-setting process based on a narrative FCR, which will further contribute to cleanup delay.

5 O'Neill, Catherine A, Variable Justice: EnvironmentalStandards, Contaminated Fish, and "Acceptable" Risk to Native Peoples, 19 Stanford Environmental Law Journal 3 (2000). footnote 174, emphasis added 6 See letterfrom Michael Farrow toTom Fitzsimmons, March 14, 2003. 3The total effect ofthe latest approach by Ecology is that Washington will continue delaying the protection of human health, and will not develop standards (or even guidance) that results in the protection ofthe beneficial uses as required by the Clean WaterAct. Norwill Ecology meet its previous commitment to the tribes to begin rectifying these issues by, at a minimum, promulgating a revised default FCR before the end ofthe current state administration's term. Eighteen years afterthe CRITFC study scientifically documented the gross inaccuracy ofthe current FCR, the state still has not completed an update, nor is this likelyto change in the nearfuture. Tribal Concerns with the Sediment Management Elements ofWashington's Water Quality Standards The tribes are particularly concerned about Ecology's proposal to utilize a narrative FCR in the sediment management standards, because ofthe inefficiencies and lack ofcertainty created by asite-by-site rate setting process. This approach also fails to utilize an accurate default FCR as a backstop and accountability measure, ifa FCR is not correctly developed atthe site level. Without the assurances of an accurate numeric default FCR, protection of human health will be subject to political pressures and procedural errors duringthe establishment of FCRs at each and every site. The lack ofa numeric default FCR also places additional burden ofsetting waterquality criteria onto the tribes and local communities who must repeatedly advance, and defend, theirsite-specific FCRs. As evidenced by the September 2011 Draft Fish Consumption Rate- Technical Support Document released to the public, Ecology has at its disposal ample local scientific information to establish adefault FCR in the sediment management standards. 7 Nonetheless, Ecology appears to be ignoring this available and locally relevant scientific information in favor ofcreating a complex process that puts the burden ofensuring accurate FCRs on each tribe at each site. It is worth noting that a similar eschewing ofavailable and relevant local data in establishing a FCR was largely the basis for EPA's disapproval of Idaho's proposed human health criteria.8 Equally troubling are Ecology's recent indicationsthatthey may not re-submit the sediment management standards, which will newly include standards forfresh water sediments, to the EPA for review and approval. At an August 281h, 2012 public workshop, management stafffrom the Taxies Cleanup Program of Ecology remarked thatthe sediment management standards were not promulgated underthe 

### state's Water Pollution Control Act (WPCA), but instead were developed underthe state's Model Taxies Control Act (MTCA); and therefore EPA review and approval would not be necessary. Ecology's interpretation of EPA's federal authorities is both inappropriate, and legally incorrect.

7 See e.g. Fish Consumption Rates- Technical Support Document, September 2011 draft, page 103, recommending a range of FCR from 157to 267 grams per day. 8 See Letterfrom Michael Bussell to Barry Burnell Water Quality Program Administrator for IDEQ, re: EPA Disapproval of New and Revised Human Health Water Quality Criteria forToxics, Idaho Docket 58-0102-0503, May 10, 2012. See also Letter from Barry Burnell, IDEQ to Michael Bussell, August 6, 2012, stating "EPA's disapproval is based upon the assertion that DEQ did not consider several sources of information regarding local and regional fish consumption before using the national default fish consumption rate to set criteria." 4

### The purpose ofthe Clean WaterAct is ultimatelyto "restore and maintain the chemical, physical, and biological integrity ofthe Nation's waters." 9 

### Certainly restoring the contaminated sediments which underlie those waters and affectthe biological integrity ofthe aquatic inhabitants is a necessary element ofachieving these primary goals ofthe Act
. Without clean river bottoms and estuarine floors, shellfish which reside in the sediment orother aquatic species that rely upon interaction with those elements ofthe ecosystem, will not be protected. Essentially, sediment cleanup is intertwined with the restoration and maintenance ofWashington's waters, and is a necessary component ofthe protection ofthe beneficial uses ofthe water quality standards. Therefore, it is necessary for EPA to closely review Ecology's revisions and amendments, including the proposed narrative FCR ofthe sediment management standards, regardless ofwhetherthey are promulgated under MTCA orthe WPCA. This point has been clearly underscored by a recent Oregon federal district court opinion stating: The EPA cannot choose to review and approve water quality standards while ignoring separate provisions which have the potential to cripple the application ofthose standards. Ifthe EPA is required to determine whether proposed water quality criteria are "sufficient to protect the designated uses" itwould undermine the purposes ofthe Act to not require a review ofprovisions promulgated that may enable or disable the attainment ofthat criteria. 10 Elements of Ecology's Proposal are an Environmental Injustice 

### For the treatytribes ofwestern Washington, the consumption offish and shellfish is aspiritual and cultural act, as well as an important nutritional and subsistence undertaking
. It is therefore no surprise thatthe tribes reserved the right to harvest various aquatic resources in exchange for ceding much of what is now western Washington. The longstanding inaccuracies found in the FCRs have lefttribal communities who rely upon fish and shellfish unduly exposed to toxic chemicals. This type ofenvironmental policy making, which provides less protection for a population of people and subsequently leads to the unequal exposure of pollutants, is undoubtedly an environmental injustice. 11 

### Unfortunately, even when the state attemptsto address these problems, they continue to create environmental policies which cause tribes to bear an undue burden. For example, Ecology's proposal to ignore data available forthe development ofa numeric default FCR, and instead create narrative site specific FCRs places the burden of resource protection on the local tribe, not on the agency responsible for setting the regulations. The tribes who already have

9 33 U.S .C. § 1251(a). 10Nw. Envtl. Advocates v. EPA, 2012 WL 653757 (D. Or. Feb
. 28, 2012) at 8 11 EPA defines Environmental Justice as "the fair treatment and meaningful involvement ofall people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies." EPA, EPA'sAction Development Process, Interim Guidance on Considering Environmental Justice During Development ofan Action, July 2010, available at http:!/ www.epa.gov/environmentallustice/resources/pollcy/consldering-ej-in-rulemaking-guide-07-2010.pdf. 5

### limited resources will be responsible forfinding scientific and policy staffto advance a FCR for each and every cleanup site that will ensure thattheir health and rights are being protected. This resource burden is further compounded by the need forthe tribes to directtechnical and policy staffto participate in a plethora ofpre-rulemaking process, which the state deems necessary to promulgate revised FCRs and calculate scientifically sound human health criteria. Essentially, when the state finally begins to address one environmental justice- the disproportionate exposure oftaxies via under-regulation- the state creates additional environmental policies which continue to unduly burden the tribes. This continued drain on tribal resources expended in an attemptto protect theirtreaty-reserved rights and community health, merely perpetuates the previous disparate treatment ofthe tribes instead of rectifying it. Therefore, these state responses provide neitherthe "fairtreatment" 12 

### northe "meaningful involvement" 13 

### envisioned by EPA's environmentaljustice policies. Requested EPA Action 

### In the context of Ecology's abruptly proposed changes to the FCR process and the subsequent continuation ofenvironmentaljustice issues, the tribes wish to underscore the importance of EPA's role in reviewing and approving modifications to Washington's waterqualitystandards and EPA's role as a federal trustee. Ecology's recent decision making clearly appears to be driven by considerations other than protecting human health and achieving compliance with the Clean WaterAct-such as pressure from specific businesses. For this reason, EPA's review and approval serves as an important backstopto ultimatelyensure that waterqualitystandards protect beneficial uses, not political and financial interests. Accordingly, the tribes respectfully request that the EPA exercise these responsibilities through the following actions: 1. Require Ecology to submit sediment management standard modifications to the EPA for full review and approval; 2. Undertake consultation with the tribes when reviewing the state's sediment management standards and all other aspects ofthe water quality standards; 3. Disapprove those standards that include narrative or inaccurate FCRs, and do not utilize the well vetted technical information previously released to the public by Ecology in the September 2011 draft ofthe Fish Consumption Rates- Technical Support Document; and

12 EPA defines "Fair Treatment" as "no group of people should bear adisproportionate burden ofenvironmental harms and risks, including those resulting from the negative environmental consequences ofindustrial, governmental, and commercial operations or programs and policies." ld at 3 13 EPA defines "Meaningful Involvement" as 1) potentially affected community members have an appropriate opportunityto participate in decisions about a proposed activity thatwill affect their environment and/or health; 2) the public's contribution can influence the regulatory agency's decision; 3) the concerns ofall participants involved will be considered in the decision-making process; and 4) the decision-makers seek out and facilitate the involvement ofthose potentially affected. Id. 64. Take immediate action to begin promulgation ofstate-wide or regional fish consumption rates, at orabove the approved Oregon standards Finally, we would like to note that despite all that has transpired, the tribes remain committed to ensuring the revision and ultimate adoption ofaccurate numeric defaultfish consumption rates in Washington. The tribes also look forward to working closely with EPA, theirtrustee, to accomplish this
. Should you oryour office need assistance in setting up consultation, orsupport ofany kind on this matter, please do not hesitate to contact me or Fran Wilshusen at the Northwest Indian Fisheries Commission at (360) 438-1180
. Thank you foryour attention to this important matter.

Sincerely,

Michael Grayum

cc NWIFC Commissioners Dennis Mclerran, EPA Regional Administrator, Region 10 Bob Perciasepe, EPA Deputy Administrator Dan Opalski, Director, Office of Environmental Cleanup, EPA Region 10

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