Earthjustice, representing a number of environmental groups, sued EPA on Friday alleging that EPA is in violation of the Clean Water Act because it has not finalized the draft rule it published back in September that set water quality standards for toxics in Washington based on higher fish consumption rates. This lawsuit is not a surprise, because it came after the requisite 60-day notice was sent to EPA back in December. It is also not the first time this group of plaintiffs have sued EPA with respect to this issue, having done so more than two years ago. That lawsuit was dismissed on summary judgment.
The complaint and the 60-day notice detail the claim against EPA. The plaintiffs allege that, under Section 303(c)(4), EPA had 90 days from the date it published the draft rule for Washington to promulgate that rule. Because the draft rule was published on September 14, 2015, that 90-day time period expired on December 14, 2015, a week before the 60-day notice was sent to EPA. This lawsuit comes just a few weeks after Ecology opened a new comment period on the state rule, which originally was subject to public comment about a year ago, before Governor Inslee paused the rulemaking effort last August.
Ecology has published a table comparing the previous Ecology draft of the rule, the current draft of the Ecology rule, and EPA’s draft rule on its webpage, and I summarized some of the differences between EPA’s approach and Ecology’s approach back in September. Ecology’s rule and EPA’s draft rule both share the same fish consumption rate (175 grams per day) and excess cancer risk (one in a million), but the Ecology draft rule contains implementation tools such as variances, intake credits, and schedules of compliance to help dischargers achieve compliance with more stringent criteria that result from the increased fish consumption rate. In addition, EPA’s approach to PCBs, arsenic, and mercury are much more numerically stringent (and likely unattainable) as compared to Ecology’s draft rule.
What are the implications of this lawsuit? First, if successful, it could speed the adoption of EPA’s draft rule, resulting in water quality standards for toxics in Washington that are potentially unattainable, and that do not have the state-specific implementation tools many believe will be necessary components of an effective and manageable water quality program. The complaint seeks an order from the Court directing EPA to promulgate the draft rule, which could be issued by the Court in the next few months depending on briefing schedules and the time it takes EPA to answer the complaint. Second, this lawsuit should keep the pressure on Ecology to get through the rule making process and submit its rule to EPA for review and approval, which is anticipated to happen in August. This lawsuit also sets up an interesting showdown between Ecology and EPA regarding that approval, and raises important questions about the primacy of states in managing delegated programs under the Clean Water Act.
This is not the last litigation that we will see regarding this subject matter–I’ll continue to post updates.