SEAFOOD.COM NEWS [Inside Washington] July 6, 2010
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Industry representatives are expressing concern with new EPA policies for considering fish consumption rates in water quality decisions, fearing the agency's emphasis on protecting vulnerable communities that consume higher-than-average amounts of fish could result in overly stringent regulatory requirements. In its most recent articulation of its approach, EPA last April quietly finalized long-awaited guidance to states for how to implement the agency's landmark 2001 human health water quality criteria for mercury based on fish-tissue levels, where it urged states and tribes to consider 'the fish being consumed by various subpopulations (e.g., sport anglers, subsistence fishers) as well as culturally and economically diverse communities.' The agency finalized a similar guidance in December 2008, but the Obama administration began a formal review of the guidance when it took office in January 2009. The Office of Management & Budget completed its review of the document earlier this year and EPA now says it took effect in April. While EPA in 2001 derived the water quality criterion based on a default fish intake rate for the general population of 17.5 grams/day of uncooked fish, the April guidance says states and tribes 'may use a different intake rate based on local or regional consumption patterns and are encouraged to use consumption rates that are protective of a range of culturally and economically diverse communities.' The guidance is available on InsideEPA.com. The guidance instructs permitting authorities to use certain population data when considering an average fish consumption level on a sliding scale of priority, specifically saying to 'use local data protective of culturally and economically diverse communities when available; use data reflecting similar geography or population groups; use data from national surveys; and use EPA's default fish intake rates.'

EPA also appears to be adopting a similar approach in its review of state water quality criteria. EPA Region X -- which covers Alaska, Idaho, Oregon, and Washington -- June 1 disapproved Oregon's 2004 revised human health criteria for 103 toxic pollutants due to studies and state efforts that show some tribal members in the state eat 10 times more fish than EPA's default consumption value. EPA said the consumption rate exposes tribe members to more pollutants from contaminated fish, and said the state needs to pursue stricter water criteria (Water Policy Report, June 21). The industry source says Obama administration officials added consideration of 'culturally and economically diverse communities' after they withdrew and amended a version of the guidance that Bush administration officials finalized in December 2008. But the source says the terms leaves itself open to interpretation and could lead to more stringent requirements for permittees. If a permitting authority assumes a higher consumption level, for example, it will mean dischargers will have to lower the concentrations of mercury in their effluent in order to lower the concentration of mercury in fish to protect populations who rely on fish consumption for subsistence. Native American communities often rely on wild fish populations for subsistence as a matter of cultural tradition, and as a general matter it has been shown that lower-income households have higher consumption levels of wild-caught fish. But if a fish consumption level is based on 'economically diverse' communities, a permitting authority may be compelled to assume a higher fish consumption level based on the presence of low-income households, which they say may be a dubious assumption, the source says. 'What they don't explain is how to define that,' the source says. 'It's one thing to say there's a Native American population in a particular area, but when you get into economic diversity -- it's an issue we'll have to talk about.'

The industry source says an example of the effects of the culturally and economically diverse communities clause in the guidance can be found in Region X's recent decision to reject Oregon's proposed criteria. The source says that could lead to troublesome burdens on industry, however, because that criteria is applied statewide, not just in the watersheds where the Oregon tribes live. 'One thing we've been saying all along is you have to grapple with the issue in a way that has site-specific requirements,' the source says. 'But in Oregon, [EPA seems] to be saying we need to do this for the whole state. That has a lot of impact.' EPA's long-awaited guidance for implementing its fish tissue criterion is also significant in that it instructs state and tribal regulators on how to implement the agency's first-time risk-based criterion based on fish tissue levels of a contaminant, rather than on a water column value. States rely on the risk-based criteria to set permit limits, water quality standards and other regulatory limits but the agency had been unable to issue guidance for implementing the 2001 criteria because of strong disagreements among EPA officials and stakeholders over how to 'translate' the criteria into regulatory limits. But implementation of the criterion languished during the Bush administration as the agency struggled to overcome differences among industry, EPA regions, states and environmentalists over how to translate the fish-tissue criterion into enforceable water quality standards and permit limits. The document finalized by the Bush EPA last January appears to closely follow a 2006 draft that gave states three options in incorporating the criterion into their water quality standards program.
One approach, which has been praised by the wastewater treatment and mining industry in the past, would allow state regulators to set permit limits based directly on the amount of mercury observed in fish -- rather than the amount found in waterbodies. Industry has favored this approach because the amount of fish-based mercury is not necessarily proportional to the amount found in water, and a fish-based regulatory approach could lead to more accurate and potentially less stringent permit limits. However, some EPA regions have opposed this approach in the past, saying it could pose difficulty for permit writers, who have traditionally translated mercury levels in water to corresponding levels in fish based on a mathematical conversion factor known as a bioaccumulation factor (BAF).

The second approach would allow states to develop and utilize site-specific BAFs to set traditional water column concentrations in their water quality standards, though industry officials have been concerned that states may utilize strict default values without consideration of site-specific data. The third option would be for a state to use both approaches, as long as the state 'clearly describe[s] how each will be used for specific applications in their standards.'  But some state officials have said the approach is confusing and would require a great deal of work from states on how to incorporate the fish-tissue criterion into their standards programs. One source has even doubted whether the guidance 'will help much,' adding that some states 'can't figure out how to fit it into their programs.' The final guidance gives state and tribal regulators significant flexibility in choosing among a range of approaches. Regulators can implement the fish tissue criterion without a water column translation or they may translate the fish tissue criterion to a water column value use a BAF using one of three approaches. The guidance also gives the option of using a combination of fish tissue criterion for some waters, combined with water column criteria for some or all waters. EPA says implementation of the guidance will become increasingly important as more states adopt mercury water quality criteria and improved monitoring increases the number of waterbodies listed as impaired.