TACOMA, Wash. (Legal Newsline) - A document instructing Washington Department of Ecology permit writers to require companies to use more sensitive and expensive tests for PCBs in their wastewater streams isn’t a rule subject to court challenge, a state appeals court has ruled.
Industry and farming groups including the Northwest Pulp & Paper Association sued to block Section 4.5 of the Water Quality Program Permit Writer’s Manual adopted in 2018, which added two highly sensitive tests to the one approved by the federal Environmental Protection Agency under the Clean Water Act. The plaintiffs argued that the state Ecology Dept. exceeded its authority and acted in an arbitrary and capricious way by conditioning permits on testing methods not authorized under federal law.
Washington’s Division II Court of Appeals rejected those arguments in a Dec. 14 opinion. Since Section 4.5 is only an instruction manual for state officials preparing water discharge permits, it doesn’t rise to the statutory definition of a rule that prescribes general rules affecting all regulated entities, the court decided.
When Congress passed the Clean Water Act it delegated much of the regulatory authority, including permitting, to the states. Washington law dictates that total PCBs should be limited to 0.00017 μg/L (micrograms per liter) even though the EPA-approved test can only detect concentrations hundreds of times larger.
Noting that “the policy goal of prohibiting any and all violations of state water quality standards remains difficult to attain in practice,” the appeals court said, state pollution rules are nevertheless designed to “encourage scientific progress toward the goal of cleaner and safer water.”
The Ecology Dept. noted in 2016 this scientific progress could eventually affect all permittees since new testing methods will turn up “previously unseen PCBs in discharges,” which could make getting permits more difficult and compliance more expensive.
The currently approved Method 608.3 test for PCBs can detect a concentration of 0.065 micrograms of PCBs per liter, or about 382 times more than Washington law allows. Methods 8082A and 1668C are far more sensitive, with Method 1668C capable of detecting 209 different chemicals containing traces of PCBs.
With Section 4.5, the Ecology Dept. advised permit writers to consider using the two more sensitive methods to determine if a company’s waste stream contains unacceptable levels of PCBs or to evaluate the effectiveness of treatment systems.
Northwest Pulp & Paper argued Section 4.5 was invalid rule because it was adopted without going through the proper statutory rulemaking procedures and allowed permit writers to arbitrarily exceed federal requirements.
“We disagree,” the appeals court said. “Section 4.5 is not a rule.”
Washington’s administrative procedure act defines a rule as a “regulation of general applicability” that falls into specific categories. It isn’t a rule if it consists of statements for the internal management of an agency that allow staffers to exercise discretion on a case-by-case basis, the court ruled.
Since Section 4.5 doesn’t require permit writers to use the more sensitive tests, the court ruled, it has no regulatory effect. Companies can challenge orders to use the tests, or violations based on more sensitive test results, through the normal administrative process, the court concluded.
“If Ecology cannot use data collected using more sensitive test methods, then Ecology cannot know when a permittee is discharging PCBs at a concentration lower than 0.065 μg/L yet higher than the water quality criterion of 0.00017 μg/L,” the court ruled.