Northwest Indian Fisheries Commission Calls on EPA to Develop Revised Human Health Water Quality Criteria

Published Sep 09, 2014

In a September 5, 2014 to Governor Jay Inslee, the Northwest Indian Fisheries Commission (NWIFC) called for EPA to develop human health criteria for the state of Washington under the federal Clean Water Act. Washington is currently covered by the EPA’s National Toxics Rule (NTR) adopted in 1992.  For the past three years Washington has been working toward promulgation of its own criteria to replace the NTR as applied in Washington.

On July 9th of this year, Governor Inslee announced the state’s policy direction for new criteria. This announcement followed over a year of public discussions in the Policy Forum and Delegates Table. The policy uses a fish consumption rate of 175 grams a day and, for carcinogens, a risk factor of one in one hundred thousand (i.e., 10-5). Under the policy direction, however, no criteria will be less stringent than the current criteria under the NTR.

This policy direction reflects a conservative approach to deriving human health criteria under EPA guidance and policy. EPA has repeatedly acknowledged that concentrations of chemicals at a risk factor of one in one million (10-6) to one in ten thousand (10-4) “do not represent a significant risk to the public.”  As recently as 2011, EPA Region 10 said that “EPA’s 2000 methodology states that criteria based on a 10-5 risk level are acceptable for the general population as long as States and authorized Tribes ensure that the risk to more highly exposed subgroups (sports fishers or subsistence fishers) does not exceed the 10-4 risk level.”  This statement was contained in the EPA approval of the Oregon human health criteria.

EPA has also rejected contentions that criteria developed within this range of risk levels constitutes environmental injustice. “Obviously, as long as there is variability in fish consumption patterns among various segments of the population, it would be impossible for EPA to ensure that all groups would face identical risk from consuming fish. Therefore, EPA has sought to ensure that, after attainment of water quality criteria in ambient waters, no group is subject to increased cancer risks greater than the range EPA has long considered protective…the established acceptable range of 10-4 to 10-6 consistent throughout current EPA program guidance and regulatory actions” (excerpt from EPA approval of the California Toxics Rule, 1999.) This remains EPA policy; in May 2014, EPA announced draft amendments to its 2000 methodology but stated that no changes were being proposed to this risk policy.

In contrast to the NTR which is based on a fish consumption rate of 6.5 grams a day, Washington’s policy direction is based on 175 grams a day – a value that reflects the 99th percentile in a Tribal fish consumption study. Thus, Washington will apply the risk level for the general population to a tribal fish consumption rate. This will ensure that the resulting criteria are equivalent to a consumption rate of 1,750 grams a day at a risk level of 10-4, which is more than three times the protection under the existing NTR (e.g., 650 grams a day at a risk factor of 10-4.) The state is also adopting a conservative risk factor of 10-5 and applying it to a very high tribal fish consumption rate. The state’s current risk factor of 10-6 applies only to the consumption rate of the general population, as EPA established in litigation over the state risk policy in a 1997 decision by the 9th Circuit Court of Appeals.

Governor Inslee’s policy direction is clearly consistent with the EPA policy. The NWIFC incorrectly asserts that the policy direction trades the increased fish consumption rate for “a less protective cancer risk rate.” The letter rejecting the policy asserts that this “approach poses an unacceptable risk to tribal health and the exercise of tribal treaty-reserved rights” but does not explain how it is “unacceptable.” The risk policy, as reflected in the EPA statement above, is well within and in fact beyond the cancer risk range EPA has long considered protective. Ironically, if the NWIFC were successful in getting EPA to modify the NTR as applied to Washington, EPA would utilize the current state risk factor of 10-6 as applied to the general population, resulting in criteria roughly equivalent to or even less protective than the Governor’s policy. For more information, contact James Tupper at

  • To view the September 5, 2014 letter from the NWIFC to Governor Inslee, click here.
  • To view James Tupper’s presentation on fish consumption rates, risk policy and environmental justice in Human Health Water Quality Criteria, click here.