In a move consistent with EPA’s recent uptick in oversight of state regulatory programs, EPA has proposed to establish federal water quality standards (WQS) for human health criteria (HHC) for Washington state. The proposal comes less than two months after the Office of Water rescinded a memorandum that directed EPA regions to comply with Clean Water Act statutory deadlines and give sufficient deference to technical determinations made by states that administer EPA-approved delegated Clean Water Act programs. While the proposal itself is not surprising — EPA telegraphed that it would take this action early in this administration — the timing of the proposal is somewhat surprising.
Washington state’s HHC have a long and complicated history. The state began a rulemaking to establish HHC in 2010, and after years of stakeholder engagement, submitted its final HHC for EPA review. In 2016, EPA partially disapproved Washington’s HHC and promulgated federal HHC in their place. EPA’s disapproval was primarily based on the fact that Washington state didn’t adopt EPA’s recommended HHC in their entirety. However, EPA also used the 2016 disapproval and overpromulgation to set forth a new legal theory that ties tribal treaty rights to the Clean Water Act and water quality standards.
In 2019 EPA reconsidered and ultimately reversed the prior disapproval, reinstating the HHC that Washington state promulgated. EPA explained in its reversal that states are not required to adopt EPA water quality standards recommendations in their entirety, as the original disapproval of Washington’s HHC suggested. EPA also explained that the legal theory tying tribal treaty rights to the Clean Water Act and water quality standards was novel, was not reflected in EPA’s regulations, and had not been subject to generally applicable rulemaking procedures, making its use in Clean Water Act regulatory decisions, such as approving or disapproving water quality standards, legally problematic. The state of Washington objected to EPA reinstating the state’s HHC but thereafter made no effort to promulgate the more protective federal HHC as state standards.
Although EPA acknowledges in the March 31 proposal, as it must, that states and tribes are “the primary authority for adopting WQS,” the agency nonetheless walks through and soundly rejects each technical, risk management, and policy rationale that Washington state had put forth to support its HHC. The proposal does the same with the rationale EPA presented in its 2019 reversal. If finalized, EPA’s proposal would reverse the reversal — taking Washington state’s HHC off the books and reinstating EPA’s federal HHC.
The timing of this proposal is interesting because EPA has already announced that it is planning another rulemaking that would require states and EPA to account for tribal treaty rights in establishing water quality standards. In undertaking that rulemaking, EPA is acknowledging, even if tacitly, that its current regulations do not provide a framework to consider tribal treaty rights in the water quality standards program. Should the agency finalize its federal HHC for Washington state prior to establishing the regulatory framework for considering tribal treaty rights in the water quality standards program, the legal risk profile of that decision would be heightened.
Also interesting is that EPA’s economic analysis supporting the proposed reversal of the reversal concludes that no point sources will incur costs as a result of permit limits that may in the future be derived from the federal HHC. This conclusion is not based on the cost of treatment technologies, however, as EPA explains that “[i]t would be highly speculative to attempt to estimate potential costs either based on the possibility of measuring pollutant levels at lower levels as a result of future requirements or future technology, or based on changes to facility operations or practices.” The agency goes on to explain that “[n]early half of pollutant parameters addressed in this proposed rulemaking have analytical quantitation limits that are above both the criteria currently in place and the proposed criteria.” In other words, there are no testing methods available to detect pollutants at the extremely low concentrations that would be established by the proposed federal HHC. From a practical standpoint, if the HHC are finalized as proposed, a discharge permit could include limits based on the federal HHC, but the permittee would have no way to demonstrate compliance with that limit because the methods of detection do not currently exist. This helps explain why the proposal preamble also sets forth an explanation of “Alternative Regulatory Approaches and Implementation Mechanisms,” including variances and compliance schedules, which can be used to implement or delay implementation of water quality standards that cannot currently be achieved.
EPA is hosting two public hearings on the proposal, and public comments are due 60 days after the proposal is published in the Federal Register. Interested parties are encouraged to follow this important regulatory development as it may offer clues to how EPA intends to more proactively merge its environmental justice priorities with its substantive regulatory programs, while offering a window into developing and relatively complex Clean Water Act legal theory. It also shines a light on how below-the-radar technical methodology issues interact with regulatory and permitting decisions.