New EPA Risk Policies Create Unattainable Clean Water Act and Other Standards
EPA is imposing new, ultra-conservative risk policies in the calculation of certain water quality standards that could cost industrial and municipal dischargers billions in some states. Many of these industrial facilities provide high-paying manufacturing jobs in rural communities. If EPA’s new policies are extended to other states and programs (e.g. Superfund, Clean Air Act), private parties and federal agencies would be faced with similar misalignment of costs and benefits.
Under the Clean Water Act (CWA), states have the primary responsibility to develop water quality standards. States begin that process with EPA’s Human Health Water Quality Criteria (HHWQC), but can use other criteria, as long as they are adequately protective of human health. States also have the discretion to set the excess lifetime cancer risk (ELCR) level and the Fish Consumption Rate (FCR) — two of the variables used to calculate the HHWQC.
Extreme Risk Management Policy
EPA is making three radical changes to its risk policy. First, the agency is requiring states to adopt HHWQC based on a new ELCR level policy that one in a million (10-6) and only one in a million is adequately protective of highly-exposed populations, such as Native American tribes consuming higher amounts of fish. This is contrary to existing policy, which recognizes that states have discretion to choose other risk levels, which are adequately protective and add de minimis incremental risk.
Second, EPA is requiring that HHWQC be derived based on protection of the most highly-exposed individuals, instead of populations, which is the established basis for most risk-based standards. This makes the standards so stringent that they are guarding against risks more remote than the risk of dying from a lightning strike or severe weather; they also are much more stringent than other health and safety standards (see Figure 1).
Finally, EPA is requiring states to adopt FCRs taking into account tribal populations’ reduced fish consumption based on their fear of contamination; and also using tribal populations’ FCR as a proxy for the general public, resulting in much more stringent and unattainable permit limits. If applied to other programs, these policies will determine “how clean is clean” for Superfund cleanups and make other standards more stringent and expensive, without a commensurate improvement in human health. EPA also is taking conservative and unscientific approaches to other values in HHWQC derivation (the “Relative Source Contribution” and “Bioaccumulation Factors”).
Note how EPA’s new risk requirements compare with other regulatory programs and everyday risks that society internalizes in Figure 1. The incremental cancer risk to the general population of Washington state of EPA’s new rule represents a risk at least 5000 times less than OSHA’s standards for carcinogens and 250 times less likely than being struck by lightning.
Imposing Unattainable Federal HHWQC in Washington and Maine
EPA recently imposed a federal rule in Washington, partially rejecting the state’s HHWQC even though it had worked with EPA for years on the criteria. In 2013, a study found that if HHWQC consistent with EPA policies were applied to Washington, industries and municipalities would not be able to meet all the resulting CWA permit limits, and the potential compliance cost would be over a billion dollars. Yet, despite that expenditure, the theoretical cancer risk reduction would not be measurable.
EPA previously disapproved Maine’s HHWQC and imposed a federal HHWQC rule for the state (with a FCR of 286 grams per day) abased on similar policies.
On Dec. 15, 2016 Idaho submitted its new HHWQC to EPA for approval after an extensive stakeholder process. Throughout the process, EPA had pressured Idaho to adopt policies similar to those imposed in Washington and Maine. Idaho did not do so, and EPA told Idaho that it was inclined to reject the HHWQC, but has not yet taken that step.
Florida also undertook an extensive stakeholder process to develop generally reasonable and scientifically-based HHWQC. However, as a result of EPA pressure, the state revised and adopted HHWQC with flawed Relative Source Contribution values and Bioaccumulation Factors. Challenges to the HHWQC are pending.
Proposed National Fish Consumption Survey Guidance
EPA issued national guidance for states on how to conduct fish consumption surveys. The guidance perpetuates EPA’s new policy of focusing the FCR on high-consuming subpopulations such as tribes, instead of the general population. It also provides further guidance on how to calculate an “unsuppressed” FCR.
EPA should withdraw the federal rules in Washington and Maine, approve Idaho and Florida’s HHWQC and withdraw the survey guidance.