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Washington businesses sue EPA over 'impossible' water standards

The plaintiffs also say that neither the agency nor Washington’s Department of Ecology have helped private or public entities comply with EPA’s rule since it took effect last December.

Published: December 6, 2023 11:00pm

(The Center Square) -

The Association of Washington Business is leading a lawsuit against the federal Environmental Protection Agency, contending it has imposed water quality standards on Washington state that are “impossible” to achieve, conflict with the agency’s own guidance, and have no basis in “real-world data.”

AWB filed its complaint Monday in U.S. District Court in the District of Columbia. Plaintiffs also include the Northwest Pulp & Paper Association, the American Forest & Paper Association, Greater Spokane Inc., and Food Northwest, a food processing trade association.

Along with the agency, EPA administrator Michael Regan is named as a defendant. The agency has not yet responded to the lawsuit and no hearings are immediately scheduled.

The lawsuit is aimed at requirements imposed by EPA under the federal Clean Water Act on holders of wastewater discharge permits. The plaintiffs are seeking a court order to vacate the EPA rule imposed in 2022, claiming that its “risk analysis, economic analysis, and unattainable PCB water quality standard are arbitrary and capricious.” Polychlorinated biphenyls, or PCBs, are carcinogenic chemical compounds formerly used in industrial and consumer products.

“For years now, Washington employers and have worked closely with policymakers and regulators to craft new standards that protect human health and improve the quality of the state’s waterways while also ensuring the continued economic vitality of our state,” AWB President Kris Johnson said in a press release.

“Regrettably, the EPA adopted standards that cannot be met with any existing or reasonably foreseeable future wastewater treatment technology, jeopardizing the operation of not only thousands of private businesses, but municipal wastewater treatment systems, too,” said Johnson.

If the legal challenge is successful, Johnson said it will reinstate the Washington Department of Ecology’s own water quality standards rule adopted in 2016. Johnson described Ecology’s rule as being “very stringent and highly protective in its own right,” but noted it did use policy considerations from employers and municipalities within the state.

Last November, EPA Administrator Regan signed a rule to restore the “protective and science-based federal human health criteria … for the state of Washington’s waters that EPA had originally promulgated in 2016 but later removed in 2020.”

“EPA revised the federal Clean Water Act … to waters under Washington’s jurisdiction to ensure that the criteria are set at levels that will adequately protect fish consumers in Washington from exposure to toxic pollutants,” the agency stated.

But in their lawsuit, the plaintiffs allege that EPA is relying on an assumption of fish consumption “that the agency admits is inconsistent with present-day realities … and substituted its own preferences for Washington’s in selecting an acceptable cancer risk level for certain chemicals – even though Washington’s policy choice was fully consistent with EPA’s guidance.”

“In adopting these flawed inputs, EPA reversed its own prior determination … that these inputs were unlawful and based on improper, nonscientific concerns involving tribal rights,” the suit alleges.

The plaintiffs also say that neither the agency nor Washington’s Department of Ecology have helped private or public entities comply with EPA’s rule since it took effect last December.

That’s telling, said Alisha Benson, chief executive officer of Greater Spokane Inc., because “the technology to meet these new water quality standards simply does not exist.”

“Businesses have repeatedly invested in cutting-edge technology to remove harmful chemicals from our waterways but they cannot come close to achieving levels mandated by the EPA in its latest regulation,” said Benson.

Chris McCabe, executive director of the Northwest Pulp & Paper Association, said the new EPA rule will also frustrate Washington state’s recently adopted BEST Act, which has a goal of creating 300,000 new manufacturing jobs by 2032.

“Purely aspirational environmental rules like this in fact put tens of thousands of labor-backed, family-waged jobs at risk in some of Washington’s more rural, and economically distressed communities,” said McCabe.

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