Nw. Pulp & Paper Ass'n v. State

500 P.3d 231

NORTHWEST PULP & PAPER ASSOCIATION; the Association of Washington Business; and Washington Farm Bureau, Appellants,

v.State of Washington, DEPARTMENT OF ECOLOGY, Respondent.

No. 55164-1-II

Court of Appeals of Washington, Division 2.

December 14, 2021

James A. Tupper Jr., Lynne Michele Cohee, Tupper Mack Wells PLLC, 2025 1st Ave. Ste. 1100, Seattle, WA, 98121-2100, for Appellants.

Phyllis Jean Barney, Attorney General's Office, P.O. Box 40117, 2425 Bristol Ct. Sw, Olympia, WA, 98504-0117, for Respondent.

PUBLISHED OPINION

Glasgow, A.C.J.

¶1 In July 2018, the Department of Ecology added a new section, chapter 6, section 4.5 (Section 4.5), to its Water Quality Program Permit Writer's Manual to specifically address the release of polychlorinated biphenyls (PCBs) into Washington's surface waters. To identify and measure the presence of PCBs in surface waters, Section 4.5 allows the use of testing Methods 1668C and 8082A, which are particularly sensitive, in addition to Method 608.3, the method expressly authorized in federal regulation.

¶2 Northwest Pulp & Paper Association, Association of Washington Business, and Washington Farm Bureau (hereinafter collectively referred to as Northwest Pulp & Paper) petitioned for judicial review and declaratory judgment under the Washington Administrative Procedure Act (APA), chapter 34.05 RCW, asking the superior court to invalidate Section 4.5. Northwest Pulp & Paper argued Section 4.5 is an invalid rule under the APA because Ecology failed to comply with the procedural requirements for rule making, Ecology exceeded its authority, and the section is arbitrary and capricious. The superior court dismissed the petition and denied the request for declaratory judgment, concluding that Section 4.5 is not a rule under the APA.

¶3 We hold Section 4.5 is guidance for agency staff, not a rule subject to the APA's rule-making requirements. We affirm.

BACKGROUND

I. PCBS, POLLUTANT DISCHARGE PERMITS, AND STATE WATER QUALITY

¶4 "Banned since the 1970s, PCBs are manufactured toxic chemicals that persist in the environment and are capable of bioaccumulation and biomagnification: they increase in concentration in individual organisms and with each successive level of the food chain." Puget Soundkeeper All. v. Dep't of Ecology , 191 Wash.2d 631, 635, 424 P.3d 1173 (2018) ( Seattle Iron & Metals ). Some PCBs are likely carcinogens that are harmful to humans.

¶5 The federal Clean Water Act (also known as the Federal Water Pollution Control Act), 33 U.S.C. §§ 1251 - 1388, seeks "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" by regulating the discharge of pollutants, including PCBs. 33 U.S.C. § 1251(a) ; 40 C.F.R. § 129.4(f). Under the Clean Water Act, it is unlawful to discharge any pollutant into the water unless the discharger has applied for and received a National Pollutant Discharge Elimination System (NPDES) permit. 33 U.S.C. §§ 1311(a), 1342(a)(1). In Washington, responsibility for controlling state water pollution and administering the NPDES permit program is delegated to Ecology. 33 U.S.C. § 1342(b) ; RCW 90.48.260(1).

¶6 Ecology has established state water quality standards to protect surface waters in Washington. See chapter 173-201A WAC. Water quality standards set contaminant concentration limits in surface water, ground water, and sediment, for example. These standards include both narrative and numeric criteria. WAC 173-201A-010(1)(a). Washington's narrative standard for toxic substances provides, "Toxic substances shall not be introduced above natural background levels in waters of the state which have the potential either singularly or cumulatively to adversely affect characteristic water uses, cause acute or chronic toxicity to the most sensitive biota dependent upon those waters, or adversely affect public health." WAC 173-201A-240(1).

¶7 Initially, Washington's numeric standards for toxic substances included acute and chronic criteria for freshwater and marine water to protect aquatic life. Ecology has since promulgated a rule that added numeric criteria to protect human health. One numeric criterion for protecting human health currently provides that the total PCBs in a body of surface water should be limited to 0.00017 µg/L (micrograms per liter). WAC 173-201A-240(5) tbl.240.

II. MANAGING PCB POLLUTION

A. Effluent Limits and Best Management Practices

¶8 If a discharger violates or has the "reasonable potential" to violate water quality standards by discharging a particular pollutant, then the discharger's NPDES permit must contain effluent limitations for that pollutant. 40 C.F.R. § 122.44(d)(1)(iii). An "effluent limitation" is "any restriction ... on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into surface waters of the state." WAC 173-220-030(9). Effluent limitations may be technology based, meaning they are "based on the capability of a treatment method to reduce the pollutant to a certain concentration." Administrative Record (AR) at 0164.0029. They may also be water quality based, meaning they are based on limiting the concentration of effluent "such that it will not cause a violation of water quality standards." AR at 0164.0030.

¶9 The legislature has required, "In no event shall the discharge of toxicants be allowed that would violate any water quality standard." RCW 90.48.520. NPDES permits "must be conditioned so the discharges authorized will meet the water quality standards. No waste discharge permit can be issued that causes or contributes to a violation of water quality criteria." WAC 173-201A-510(1). The policy goal of prohibiting any and all violations of state water quality standards remains difficult to attain in practice, however. "Ecology sets maximum effluent limits for certain pollutants at numbers presently undetectable and unquantifiable in order to encourage scientific progress toward the goal of cleaner and safer water." Seattle Iron & Metals , 191 Wash.2d at 643, 424 P.3d 1173.

¶10 In addition to effluent limitations, a permit may require the discharger to use best management practices to prevent the discharge of pollutants. Best management practices may include specific treatment requirements, maintenance and operating procedures, or strategies to control runoff, leaks, and spillage. 40 C.F.R. § 122.2. Permits may require dischargers to comply with narrative conditions that "complement numeric limits," such as requirements to "study the efficiency of the treatment system" or to "develop a plan to identify and implement pollution prevention that is technically and economically achievable." Puget Soundkeeper All. v. Dep't of Ecology , 102 Wash. App. 783, 794-95, 9 P.3d 892 (2000).

¶11 Ecology's Water Quality Program recommended a new permitting approach for PCBs in 2016 that "requires dischargers to use improved detection methods to find PCBs in waste streams" and to use updated best management practices, based on guidance from the Environmental Protection Agency (EPA) and "on-the-ground experience," to prevent PCB pollution. AR at 0843.0001. The recommended changes were to the methods for detecting PCBs, not PCB effluent limits. However, the program recognized that these changes will "have eventual ramifications to all water quality permittees with PCB limits" because more sensitive methods of monitoring will "turn up previously unseen PCBs in discharges," which "could drive new permit limits and violations." AR at 0843.0001, .0003.

B. Test Methods for Detecting PCBs

¶12 Congress tasked the EPA with "promulgat[ing] guidelines establishing test procedures for the analysis of pollutants." 33 U.S.C. § 1314(h) ; 40 C.F.R. § 122.2. Those test methods are established in 40 C.F.R. part 136. Currently, the only test method for measuring PCBs that is approved under part 136 is Method 608.3. 40 C.F.R. § 136.3, tbl.IC.¹ The description of Method 608.3 in appendix A of part 136 explains that the "EPA has promulgated this method ... for use in wastewater compliance monitoring under the [NPDES]" permitting system. 40 C.F.R. Pt. 136, App. A, Method 608.3, at 1.6.1.

¶13 Yet, as Ecology explains in its Permit Writer's Manual, surface water quality standards to protect aquatic life and human health are set at levels lower than Method 608.3 is able to detect and quantify. Method 608.3 is able to reliably detect a concentration of 0.065 micrograms of PCBs per liter of water. This means water could contain approximately 382 times more PCBs than the state numeric criterion necessary to protect human health of 0.00017 µg/L, yet the PCBs would not be detectable using Method 608.3. Cf. Seattle Iron & Metals , 191 Wash.2d at 638, 424 P.3d 1173 (addressing an argument that monitoring using Method 608 (a precursor to Method 608.3) was insufficient because "the test cannot ensure a permit holder complies with statutory water quality standards").

¶14 Two testing methods exist for measuring PCBs that are more sensitive. Methods 8082A and 1668C "provide lower analytical limits" than Method 608.3. AR at 0164.0250. Although Method 608.3 is the only method that can be used under 40 C.F.R. part 136 to determine compliance with numeric effluent limits, Methods 8082A and 1668C may be used for purposes other than determining compliance.

¶15 For example, Method 1668C can be used for "monitoring of final effluents for PCB congeners." AR at 0277.0028; see also 40 C.F.R. Pt. 136, App. A, Method 608.3, at 1.5 ("Method 1668C ... may be useful for determination of PCBs as individual chlorinated biphenyl congeners," although Method 1668C has "not been approved for use at 40 [C.F.R.] part 136."). PCBs consist of "209 individual compounds known as congeners." AR at 0922.0004. Mixtures of these compounds were commercially produced, and the mixtures are known by their trade names, most commonly Aroclor. Water quality based effluent limits consider the...