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EPA Approves Toughened Oregon Water Quality Standards Based on Higher 'Fish Consumption Rate' by Staff Columbia Basin Bulletin, October 21, 2011

Oregon's Water Quality Standards, with the stiffest water pollution regulations in the country, were approved Monday (Oct. 17) by the U.S. Environmental Protection Agency.

The adopted standards use new human health criteria based on a new fish consumption rate. The standards are designed to better protect Native Americans and others who eat more fish than the general population.

The new standards were developed over several years by the Oregon Department of Environmental Quality in collaboration with the Confederated Tribes of the Umatilla Indian Reservation and the EPA.

Paul Lumley, executive director for the Columbia River Inter-Tribal Fish Commission, which represents four treaty-fishing tribes (Umatilla, Yakama, Warm Springs and Nez Perce), said EPA's approval of Oregon's revised water quality standards is "realization of a tribal vision" set in motion in the 1980s.

"Based on our fish consumption survey and fish contamination study, these standards will provide significant protection to our tribal members and will improve the overall health of our ecosystem," Lumley said. "A partnership between the tribes, EPA and the state, this outcome demonstrates the types of accomplishments that can occur when we work together toward a common goal."

Dennis J. McLerran, EPA Region 10 administrator, in a letter to Oregon Department of Environmental Quality DEQ Director Dick Pedersen, said the "revised standards will . . . serve as a national and regional model." The state of Washington has begun a similar process expected to increase its fish consumption rate.

The new standards are in effect as of EPA's approval. Oregon will not reevaluate existing wastewater discharge permits, which are effective for five years, as called for in the federal Clean Water Act. Rather the state will consider each permit as it comes up for renewal, which is a continual on-going process.

The new fish consumption rate increases by 10 fold, from 17.5 grams a day (about the amount of fish that would fit on a soda cracker) to 175 grams a day (about 23 eight-once meals a month), the amount of fish that can safely be consumed, according to state and federal agencies.

The fish consumption rate is an important factor for developing human health standards, according to an EPA fact sheet. The more fish, shellfish and water people consume containing toxic pollutants, for instance mercury, dioxins and pesticides, the more they're at risk for developing illnesses such as cancer, cardiovascular disease, neurological and behavioral disorders and kidney disease.

The new standards, which will restrict the amount of pollutants that can be released into Oregon's waterways, are expected to dramatically effect industrial facilities and larger municipal sewage treatment facilities (generally for cities with populations of 10,000 residents or more) operating under wastewater discharge permits in Oregon.

In some cases, permit holders that cannot meet a permit limit due to one or more reasons stated in the variance rule - such as when available treatment technologies are prohibitively expensive or when human-caused or naturally-occurring pollutant levels preclude meeting water quality standards - can apply for a variance.

Forestry, agricultural, construction and other activities will be affected. However, the Oregon DEQ intends to interact with the Agriculture and Forestry departments to help pollution runoff sources implement management practices to reduce toxic runoff from farm and timber lands.

In addition, DEQ will also offer "new permitting implementation tools" to assist dischargers in making changes. Several of these tools take into account levels of background pollutants already present in a discharger's intake water through intake credits and a site-specific background pollutant provision.

In August, Pedersen acknowledged that the "new standards have drawn a great deal of interest and concern from the business and agricultural community, legislators and others who fear they will be overly restrictive. But DEQ will work closely with all those affected to ensure these changes are implemented fairly and effectively. We will monitor the new regulations' effectiveness and report back to legislators and others on how the new standards are working.

"We feel strongly that these standards set the right goals for Oregon waters and, over time, will form the basis for any needed improvements in the quality of Oregon's waters, its overall environment, and its overall livability."

In February of 2013 and 2015, the Oregon DEQ will report to the Oregon Legislature on the status of human health toxics rulemaking, including specific information on the use of variances. EPA's decision this week follows the recommendation of the Oregon Environmental Quality Commission, which adopted the new water quality standards in August. The Oregon EQC sets policy based on recommendations from the Oregon DEQ .

At the urging of the Umatilla Tribes, Oregon DEQ arrived at the higher fish consumption rate after an extensive review of relevant fish consumption studies by a panel of health professionals and through public workshops and comment periods that spanned several years.

McLarren praised the work of the Oregon DEQ and the Umatilla Tribes for "conducting a thoughtful public dialogue with tribal governments, citizens, municipalities, industry and others to understand the issues associated with increasing the fish consumption rate used in your water quality standards."

EPA's approval is testament to years of collaborative work, Pedersen said Wednesday.

"EPA's decision endorses the years of hard work by the state and the Umatilla Tribe," Pedersen said. "The standard allows us to move forward as Oregon decides how best to reduce toxics in collaboration and in a thoughtful way to improve water so fish are safe and the people who eat fish are safe."

Pedersen said that without the influence of the Umatilla Tribes, DEQ probably would not have pushed as hard for new human health criteria.

"Without their leadership the task would have been a lot harder than it was," he said. "I don't think we would have pushed as hard without the tribal component. Through collaboration, the tribes were instrumental in what we ended up getting."

In August, the Oregon EQC approved the standards by a 4-1 margin, with Vice Chair Ken Williamson saying the standards "provide greater protections for sensitive populations. As a society we need to provide these protections. We are moving in the right direction."

The new rules put limits on 104 toxic pollutants (48 non-carcinogens and 56 carcinogens) based on studies that have documented that certain populations, including Native Americans, eat more fish than the general population in the United States, and that toxics found in fish from Oregon waterways cause cancer, and effect immune, reproductive and nervous systems.

Prior to its efforts to develop these new revisions, DEQ developed and adopted rules in 2004.

DEQ based the criteria for the 2004 rules on EPA's recommended criteria at the time, which used an assumed 17.5 grams (that cracker-size portion) for the general population per day fish consumption rate.

At the time (2004) that Oregon approved those standards, the Umatilla Tribes expressed concerns to EPA that the standards were not protective enough for high fish consumers and did not meet EPA's guidance that local data be used to make decisions on criteria.

In 2006, DEQ, EPA and the Umatilla Tribes reached an agreement to work together collaboratively to revise the fish consumption rate.

In what would be a five-year process, DEQ began re-evaluating its water quality standards, holding seven workshops around the state to share information and discuss stakeholders' views about the fish consumption rate.

DEQ convened workgroups that looked at public health, and the fiscal impact and implementation of new rules. Workgroups included representatives from industry, local governments, non-government organizations, and local groups meeting to develop the new criteria with the intention of lowering the allowable amount of pollutants released to Oregon waters while, at the same time, considering variances and other actions that would provide affordable options to those that discharge those pollutants.

Meanwhile, in 2009, while stakeholders were meeting to hash out a new fish consumption rate, Oregon DEQ and EPA were sued for failing to meet federal Clean Water Act deadlines. Because the rulemaking process was not complete - data, comments and input was not yet available - EPA had not taken action. A federal court ordered EPA to take action on Oregon's existing standards.

In June 2010, EPA disapproved those 2004 standards because, as agreed upon in 2006, they were not protective enough of Oregonians based on the amount of fish they are known to consume. EPA's disapproval caused the majority of the 2004 water quality criteria to no longer be effective, leaving in place the previous criteria of 6.5 grams per day that was adopted in the late 1980s.

The new adopted rules address EPA's disapproval of DEQ's 2004 criteria and obviate the need for EPA to promulgate federal rules for Oregon.

Meanwhile, the Washington Department of Ecology has started a process intended to prevent sources of toxic chemicals that contaminate air, water, soil and human bodies.

Toward that goal, the state is asking for comments on a newly released technical support document, which focuses on fish consumption in Washington and existing environmental and human health information. The draft document is called "Fish Consumption Rates Technical Support Document: A Review of Data and Information About Fish Consumption in Washington."

Washington currently uses an existing fish consumption rate of 6.5 grams per day (26 times lower than the newly adopted Oregon rate) in its water quality standards.

The draft document is available on DOE's fish consumption web portal, which can be found at www.ecy.wa.gov/toxics/fish.html The comment period ends Dec. 30, 2011.

For more details on Oregon's new standards, see DEQ's "human health rulemaking" web page at www.deq.state.or.us/wq/standards/humanhealthrule.htm and EPA's yosemite.epa.gov/R10/water.nsf/webpage/Oregon+Water+Quality+Standards