Puget Soundkeeper All. v. Dep't of Ecology , 191 Wash. 2d 631 ( 2018 )

yrr IN CLERKS OFFICE
this opinion was filed for record
aUPRBiC COURT,amiE OF W"SKmOTON
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SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
PUGET SOUNDKEEPER ALLIANCE,
No. 94293-5
Petitioner,
STATE OF WASHINGTON,
DEPARTMENT OF ECOLOGY; and En Banc
STATE OF WASHINGTON POLLUTION
CONTROL HEARINGS BOARD,
Respondents.
Filed
ADG 3 0 2018
JOHNSON,J.—In this case, we are asked to decide whether Department of
Ecology's current waste discharge permitting process complies with RCW
90.48.520's requirement for "permit conditions [to] require all known, available,
and reasonable methods to control toxicants in the applicant's wastewater."
(Emphasis added.) No disagreement exists that Ecology uses the most sensitive
testing method federally approved to monitor permit compliance. The issue in this
case is whether RCW 90.48.520 requires Ecology to use a more sensitive testing
method not recognized by Ecology or the United States Environmental Protection
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
Agency(EPA)as reliable for permit compliance purposes. We hold that it does not
and affirm the Court of Appeals.'
Facts and Procedural Background
This case was brought by Puget Soundkeeper Alliance (Soundkeeper), who
challenged Ecology's issuance of a discharge permit to Seattle Iron and Metals
(SIM). Although Soundkeeper challenged the permit issuance on several theories,
the issue before us centers on the testing methodology required as a permit
condition to monitor compliance.
Ecology is a state water pollution control agency responsible for
administering the National Pollutant Discharge Elimination System(NPDES)
permit program in compliance with the Clean Water Act(CWA)(also known as
the Federal Water Pollution Control Act), 33 U.S.C. §§ 1251-1388. The permits
allow for the discharge of certain pollutants into navigable waters, so long as those
discharges are in compliance with the permit terms and consistent with state and
federal law.
'The Court of Appeals affirmed in part and reversed in part the Pollution Control
Hearings Board's decisions on two different permit provisions that Puget Soundkeeper Alliance
challenged below. The lower court's partial reversal is not before us.
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
The peraiit in question^ was issued in 2013 to SIM, an auto shredding and
metal recycling facility, which extracts and sells recoverable metals from auto
shredder residue. SIM is located along the Lower Duwamish Waterway
(Waterway), the 5.5 mile section of the Duwamish River flowing into Elliott Bay.
The EPA has designated the Waterway a cleanup site.
SIM's operations generate wastewater and stormwater, which are prohibited
without an NPDES permit. Among other requirements, NPDES permits must
impose effluent limitations to ensure against violations of water quality standards.
33 U.S.C. §§ 1311(b)(1)(C), 1342(a)-(b); WAG 173-226-070. Of particular
concern is the presence and concentration of polychlorinated biphenyls(PCBs).
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. This means that even though PCBs are no longer manufactured in
the United States, they remain present in our air, water, and soil. The SIM permit
requires monitoring of discharged treated wastewater and untreated stormwater for
PCBs using Method 608 to conduct the monitoring. Soundkeeper sought
administrative review of SIM's permit, challenging, among other things, the PCB
SIM's current permit is set to expire on October 1, 2018.
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
limits imposed and the use of Method 608 instead of a different, more sensitive
test, Method 1668C.
The Pollution Control Hearings Board (Board) conducted an evidentiary
hearing and concluded that to protect human health, the PCB limit in the
discharged water is 0.00017 pg/L (micrograms per liter). See WAG 173-20lA-
240(5). The Board also concluded that under existing state and federal regulations.
Ecology was required to use Method 608 in NPDBS permits and could seek BPA's
approval to use Method 1668C, but was not required to do so because Method 608
was the only BPA-approved test available.
Soundkeeper appealed, renewing its objections to the 2013 SIM permit. The
Court of Appeals affirmed the Board's determination regarding Ecology's use of
Method 608 in the SIM permit and Method 1668C's unavailability.
Analysis
In its argument to us, Soundkeeper essentially contends that compliance with
a regulation, WAC 173-20lA-260(3)(h),3 conflicts with a statute, RCW 90.48.520.
Specifically, it argues that because the testing procedure required under the
^ The regulation reads, in relevant part,"The analytical testing methods for [the] numeric
criteria must be in accordance with the ''Guidelines Establishing Test Proceduresfor the Analysis
ofPollutants'(40 C.F.R. Part 136) or superseding methods published. The department may also
approve other methods following consultation with adjacent states and with the approval ofthe
[EPA]."
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
regulation cannot detect water quality violations that the statute prohibits, the
permit conditions violate state law. Soundkeeper contends that Ecology could have
selected the more sensitive Method 1668C because it is a "superseding method"
under WAC 173-201A-260(3)(h).
A. Standards of Review
This court reviews orders from the Board under the Washington
Administrative Procedure Act, chapter 34.05 RCW.RCW 90.48.230; RCW
34.05.518; Pub. Util. Dist. No. 1 ofPend Oreille County v. Dep't ofEcology, 146
Wash. 2d 778, 789-90, 51 P.3d 744(2002). Judicial review is limited to the record
before the board, RCW 34.05.558, and the burden of demonstrating the invalidity
of an agency action rests with the party asserting invalidity. RCW 34.05.570(l)(a).
Under the Washington Administrative Procedure Act, we may grant relief if
we find the order from the Board is unconstitutional, exceeds its statutory authority
or jurisdiction, is inconsistent with an agency's rule, is arbitrary and capricious, or
the agency erroneously interpreted or applied the law. RCW 34.05.570(3).
We review an agency's legal determinations under the "error of law"
standard and may substitute our interpretation of the law for that of the agency's.
Postema v. Pollution Control Hr'gs Bd., 142 Wash. 2d 68, 77, 11 P.3d 726(2000)
(citing RCW 34.05.570(3)(d)). Under this standard, we review questions of law,
including statutory construction, and an agency's application ofthe law de novo.
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
Snohomish County v. Pollution Control Hr'gs Bd., 187 Wash. 2d 346, 357, 386 P.3d
1064(2016); Port ofSeattle v. Pollution Control Hr'gs Ed., 151 Wash. 2d 568, 587,
90 P.3d 659(2004)."[W]e accord an agency's interpretation ofthe law great
weight where the statute is ambiguous and is within the agency's special
expertise." Snohomish County, 187 Wash. 2d at 357.
B. Statutory and Regulatory Requirements for Water Pollution
State and federal law govern water pollution control. In 1972, Congress
enacted the CWA to "restore and maintain the chemical, physical, and biological
integrity of the Nation's waters." 33 U.S.C. § 1251(a). To achieve that purpose, the
CWA prohibits the discharge of pollutants from a point source absent an NPDBS
permit. 33 U.S.C. §§ 1251(a), 1311(a), 1342(a). Congress "authorized the [EPA]to
delegate the NPDES permitting program to the states. [33 U.S.C.] § 1342(b)."
Snohomish County, 187 Wash. 2d at 352. The EPA delegated this authority to
Ecology in Washington. RCW 90.48.260(1). "The legislature has recognized that
Ecology has '[c]omplete authority to establish and administer' the program."
Snohomish County, 187 Wash. 2d at 352(alteration in original)(quoting RCW
90.48.260(l)(a)).
An entity such as SIM may obtain an NPDES permit that allows some
pollutant discharge, 33 U.S.C. §§ 1311(a), 1342(a)(1), and must comply with the
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
applicable state water quality standards, which may be more stringent than
required by federal law. 33 U.S.C. § 1370; 40 C.F.R. § 122.4(d).
Washington's water quality standards include both narrative and numeric
criteria for toxicants. WAC 173-201A-010(1). The administrative code identifies
the numeric water quality standards for toxic substances and limits the
concentration ofPCBs to 0.00017 pg/L. WAC 173-201A-240(5)tbl. 240.
C. Method 608 satisfies state and federal statutory and regulatory requirements
as the only known, available, and reasonable method for compliance monitoring
Soundkeeper contends that requiring use of Method 608 to monitor PCB
levels in accordance with state regulations violates the state statute because the test
cannot ensure a permit holder complies with statutory water quality standards.
However, Soundkeeper mistakes monitoring for ensuring compliance.
As mentioned earlier, an NPDBS permit specifies water quality criteria and
the required methods to apply it. WAC 173-20lA-260(3). Method 608 has a
practical quantitation limit of0.5 pg/L, which means that it can reliably quantify
PCB concentrations only at that level.'^ WAC 173-201A-240(5) tbl. 240; Admin.
Record(AR)at 3305. Using Method 608 does not test for effluent concentrations
In the record, Method 608 is referenced as having a practical quantitation limit of 0.5
pg/L and a method detection limit of 0.25 pg/L. The former represents "the lowest level at which
a concentration can be detected where the accuracy (precision and bias) of the detection achieves
the objectives of the intended purpose." Clerk's Papers at 39.
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Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
to the 0.00017 |ig/L level, nor does it reliably quantify anywhere between that level
and the 0.5 qg/L level. Soundkeeper's position is that this, in turn, violates RCW
9048.520.
The question here is whether the permitting scheme violates the statutory
mandate and the corresponding federal duty to refrain from issuing discharge
permits "[w]hen the imposition of conditions cannot ensure compliance with the
applicable water quality requirements of all affected States." 40 C.F.R. § 122.4(d).
Soundkeeper bears the burden of proving an agency action conflicts with state or
federal laws.
The Board upheld Ecology's use of Method 608 as the only method
currently approved by the EPA for compliance monitoring In NPDES permits and
suggested that Ecology may petition the EPA for approval of an alternative test
procedure. It rejected Soundkeeper's contention that Ecology's failure to seek EPA
approval of Method 1668 violated our water pollution control act(WPCA),chapter
90.48 RCW. It noted that "[t]he policy declarations in the WPCA do not 'control
over the more specific statutory provisions adopted to implement those general
declarations' and those declarations 'have no operative force in and of
themselves.'" Clerk's Papers(CP)at 48 (quoting Puget Soundkeeper All. v. State,
102 Wash. App. 783, 790,9 P.3d 892(2000)). The Board concluded that the permit
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
was consistent with the requirement of the state "Surface Water Quality
Standards."
Division Two affirmed the Board's conclusion in an unpublished opinion. It
found Soundkeeper's argument to be inconsistent with federal and state laws
regarding testing methods. In reconciling state and federal statutes and regulations,
it noted that the EPA has not yet approved Method 1668C, that 40 C.F.R. §
122.44(i)(l)(iv) calls for monitoring to be done using only ''sufficiently sensitive"^
test methods, and that Ecology's interpretation of WAC 173-201A-260(3)(h)
correctly determined Method 1668C not to be available, necessarily making
Method 608 sufficiently sensitive. We agree.
The federal aspect ofthat legal question is answered by 40 C.F.R. §
122.44(i). The EPA has anticipated that there may be instances—like the one at
issue here—where its approved testing methods are not sensitive enough to detect
the state or federal effluent limits. Federal regulation states that the testing method
used for monitoring effluent limits need only be "sufficiently sensitive." 40 C.F.R.
§ 122.44(i)(l)(iv). It further specifies that a testing method is considered
"sufficiently sensitive" if it "has the lowest[minimum level] ofthe analytical
^ Puget Soundkeeper All. v. State, No. 48267-3-II, slip op. at 11 (Wash. Ct. App. Feb. 22,
2017)(unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2048267-3-
II%20Unpublished%200pinion.pdf(emphasis added).
Puget Soundkeeper Alliance v. Dep Y ofEcology, No. 94293-5
methods approved under 40 [C.F.R.] part 136 or required under 40 [C.F.R.]
chapter I, subchapter N or O for the measured pollutant or pollutant parameter." 40
C.F.R. § 122.44(i)(l)(iv)(A)(2). Soundkeeper agrees that Ecology is using the only
testing method approved by the EPA for monitoring PCBs under the circumstances
of this case. Puget Soundkeeper All.'s Suppl. Br. at 12. No conflict therefore exists
with the federal regulation.
The state monitoring scheme is read in conjunction with the statutory
mandate. RCW 90.48.520, the statute in question, in relevant part, reads as
follows;
In order to improve water quality by controlling toxicants in
wastewater, the department of ecology shall in issuing and renewing
state and federal wastewater discharge permits review the applicant's
operations and incorporate permit conditions which require all known,
available, and reasonable methods to control toxicants in the
applicant's wastewater. Such conditions may include, but are not
limited to:(1)Limits on the discharge of specific chemicals, and (2)
limits on the overall toxicity ofthe effluent. ...In no event shall the
discharge oftoxicants be allowed that would violate any water quality
standard, including toxicant standards, sediment criteria, and dilution
zone criteria.
(Emphasis added.)
From the outset we note that the blanket prohibition on "the discharge of
toxicants . . . that would violate any water quality standard" in RCW 90.48.520
does not mean that this court, and not the agency charged with enforcement and
employing its expertise, will command a specific way of ensuring compliance by a
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Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
permittee. As Ecology and various amici point out, monitoring is just one ofthe
ways in which discharge permits ensure compliance with RCW 90.48.520 and
other applicable state and federal laws.^ Requiring the permittee to implement
specific water treatment practices that are designed to reach the required PCB cap
is, as logic would dictate, a more effective method of preventing unlawful
discharges before they can occur than simply to monitor a release of harmful
chemicals that has already occurred. Thus, while 40 C.F.R. § 122.44(1) requires
monitoring of effluent from each outfall to assure compliant performance, the
selection of the monitoring method is not at the center of compliance.
More importantly, the statute's plain language does not require a perfectly
sensitive test. It requires that the test, in addition to being known and available,
also be reasonable. Methods 608 and 1668C are both "known" and both appear to
be available.^ The question we have to answer here is whether Ecology's decision
to use Method 608 in the 2013 SIM permit was also "reasonable." We conclude
that it was.
^ See, e.g., 40 C.F.R. § 122.41(e)("The permittee shall at all times properly operate and
maintain all facilities and systems of treatment and control(and related appurtenances) which are
installed or used by the permittee to achieve compliance with the conditions of this permit."
(emphasis added)).
^ While Method 1668C has not been approved by 40 C.F.R. § 136, WAC 173-201A-
260(3)(h) allows Ecology to "also approve other methods following consultation with adjacent
states and with the approval of the [EPA]."
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Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
We first note that when the EPA considered approving Method 1668C for
compliance monitoring, it deferred action after receiving mixed comments from
public agencies and industry stakeholders about feasibility and cost. Guidelines
Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water
Act; Analysis and Sampling Procedures, 77 Fed. Reg. 29,758, 29,763(May 18,
2012). It has withheld approval as recently as 2017. Clean Water Act Methods
Update Rule for the Analysis of Effluent, 82 Fed. Reg. 40,836, 40,876(Aug. 28,
2017). It was not unreasonable for Ecology in these circumstances to select
Method 608 as the only federally approved test method for testing the federally
established human health limit that Washington was using in 2013.^ As Ecology
has made clear to this court, the use of Method 1668C would strip it of its power
and ability to enforce the law. Wash. Supreme Court oral argument,Puget
Soundkeeper All. v. Dep't ofEcology, No. 94293-5 (Oct. 19, 2017), at 21 min., 31
sec., video recording by TVW,Washington State's Public Affairs Network,
http://www.tvw.org. As Ecology points out. Method 1668C is unreliable because
that test does not allow Ecology to determine whether any of the PCBs detected
^ We note here that Ecology is wise to keep exploring the best testing available and might
even have a duty to implement the most technologically superior monitoring methods. Based in
its widespread adoption in the watershed and other facts in the record, CP (Finding of Fact 51) at
40, the Board encouraged Ecology to seek EPA approval to use Method 8082A for monitoring of
permit compliance at SIM. CP (Conclusion of Law 29) at 61. Whether Ecology has a duty to do
so, we need not consider because the issue is not currently before us.
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Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
come from the discharger, the test container itself, or the ambient air. This means
that the test would detect the presence ofPCBs but would not identify the source.
Any polluter subject to an enforcement action stemming from Ecology's use of
such method of detection would predictably be able to challenge the validity the
agency's actions because of the inability to identify the source ofthe pollution.
Method 608, in contrast, can accurately identify the source.^
Ecology's decision to use Method 608 in this context is not only reasonable
but perhaps the most sensible and viable decision. 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. Given these considerations, Soundkeeper has not established that Method
1668C is a "reasonable" method for Ecology to use or that Ecology's use of
Method 608 is "unreasonable." Soundkeeper's argument might result in Ecology
losing the ability to enforce and monitor discharge of pollutants into our streams
and waters.
^ Ecology has previously issued SIM notices of violation for exceeding its 2007 permit
effluent limits resulting in SIM making improvements to its discharge treatment system. CP at
20.
Wash. Supreme Court oral argument, supra, at 16 min., 46 sec. through 17 min., 10
sec.(explaining how "it is common to have the limit driving the technology. In other words, we
have a number of toxic chemicals . . . where the limit is lower than what the current tests are able
to reach. But, setting that human health limit where we know it needs to be still has value
because it allows laboratories to strive towards that goal").
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Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
The Board held that Method 1668C was not available to use in SIM's permit
because WAC 173-201A-260(3)(h) requires federal approval of effluent testing
methods. CP at 47. Method 608 is EPA approved, and Ecology was required to use
that test. Soundkeeper contends that Ecology could have selected the more
sensitive but less reliable Method 1668C because it is a "superseding method"
under WAC 173-201A-260(3)(h). We disagree.
Ecology applies state water quality criteria according to WAC 173-201A-
260(3). This regulation provides that Ecology may select a testing method that(1)
is listed in 40 C.F.R. § 136,(2) qualifies as a published "superseding method[]," or
(3)is sought by Ecology and approved by EPA. Soundkeeper agrees that Method
1668C does not meet option (1) or (3).
EPA approves testing methods through a process offormal notice and
comment rulemaking. 33 U.S.C. §§ 1311(a), 1314(h), 1361(a). Section 1314(h)
requires the EPA to "promulgate guidelines establishing test procedures for the
analysis of pollutants." Currently, federal regulation recognizes only Method 608.
40 C.F.R. § 136.3 tbl. IC; 82 Fed. Reg. at 40,836-40,941 (Aug. 28, 2017)("[A]t
the time of writing ofthis revision, Method[] 1668C ... had not been approved for
use at 40 [C.F.R] part 136."). Moreover, Soundkeeper has not alleged and the
record does not reflect that Soundkeeper or any other entity has sought Ecology's
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Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
approval for Method 1668C,following consultation with adjacent states and EPA
approval.
Thus, for Method 1668C to qualify under WAC 173-201 A-260(3)(h) it must
be a "superseding method[] published." The parties do not disagree that Method
1668C is a "published" method by EPA. Instead, Ecology disputes whether the
method is "superseding," Resp't's Suppl. Br. at 12-14, which requires us to
interpret WAC 173-20lA-260(3)(h).
When interpreting agency regulations, we apply the same principles used to
construe statutes. Lopez Demetrio v. Sakuma Bros. Farms, 183 Wash. 2d 649, 655,
355 P.3d 258 (2015); Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1,
9-10, 43 P.3d 4(2002). When we interpret a statute, we look first to the plain
language. Campbell & Gwinn, 146 Wash. 2d at 11. We derive the plain meaning
"from all that the Legislature has said in the statute and related statutes which
disclose legislative intent about the provision in question." Campbell & Gwinn,
146 Wash. 2d at 11. Language is unambiguous if it has only one reasonable
interpretation. Campbell & Gwinn, 146 Wash. 2d at 12.
State regulations do not define the term "superseding," so we determine the
meaning of this term by looking at its ordinary definition. HomeStreet, Inc. v.
Dep't ofRevenue, 166 Wash. 2d 444, 451, 210 P.3d 297(2009)(citing Garrison v.
Wash. State Nursing Ed., 87 Wash. 2d 195, 196, 550 P.2d 7(1976)). Webster's
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Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
explains that "supersede" means(a)"to make obsolete, inferior, or outmoded,"(b)
"to make void," or(c)"to make superfluous or unnecessary." Webster's Third
New International Dictionary 2295 (2002). Webster's further defines
"supersede" as "to cause to be supplanted in a position or function." WEBSTER'S at
2295. Similarly, Black's defines "supersede" as "[t]o annul, make void, or repeal
by taking the place of ." Black's Law
Dictionary 1667(10th ed. 2014).
These definitions demonstrate that "supersede" means to take the place of
something, to supplant it. Here, Method 1668C has not taken the place of Method
608. The EPA developed Method 1668C intending it to be used in Clean Water
Act programs. AR at 2751. Importantly, the EPA has stated that it expects the
method to be "add[ed]" to other CWA testing processes published at 40 C.F.R. §
136. AR at 2751. The EPA developed and published Method 1668C for use in
addition to other tests. A supplemental testing method does not supplant, void, or
make obsolete a previously adopted testing procedure. Therefore, Method 1668C
does not constitute a "superseding method" under WAG 173-201A-260(3)(h) and
we affirm the Court of Appeals and the Board's ruling.
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Conclusion
Ecology's use of Method 608 in the SIM permit is consistent with the plain
meaning of the statutory language in question, ROW 90.48.520. Nothing in the
language of the statute requires Ecology to use unreliable and unapproved testing
methods to ensure compliance with the law. Neither federal nor state law require
that the monitoring method reach the PCB limit of 0.00017 pg/L. WAG 173-201A-
260(3)(h) does not conflict with RCW 90.48.520. Ecology followed WAG 173-
201 A-260(3)(h)'s directive that "analytical testing methods for these numeric
criteria must be in accordance with . ..{40 C.F.R. Part 136)or superseding
methods published," and that "[t]he department may also approve other methods
following consultation with adjacent states and with the approval of the [EPA]."
Method 608 is the only reliable test currently available, and Ecology, in applying
its expertise, determined that it should be used as one of several ways the agency
ensures compliance with permit limitations. The record before the Board supports
this decision.
Use of an unapproved and unreliable test, such as Method 1668G, would not
provide a basis for enforcement of the PGB permit limits. Both Ecology and the
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Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5
Board agree on this issue, and we have established that"we are loath to override
the judgment of both agencies, whose combined expertise merits substantial
deference." Port ofSeattle, 151 Wash. 2d at 600. We affirm.
WE CONCUR:
Ilaaa^'I i CQ ,
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Puget Soundkeeper Alliance v. Dep't ofEcology
No. 94293-5
GonzAlez,J. (dissenting) —In Washington, there is no right to discharge
pollutants. Accordingly, an entity is not permitted to discharge unless it can prove
that there will be no resulting pollution of our waterways. RCW 90.48.520; WAC
173-201A-240(1)(toxic substances "shall not be introduced above natural
background levels in waters ofthe state which have the potential ... to adversely
affect" water use, toxicity, or public health), -510(1)("The primary means to be
used for controlling ... waste discharges shall be through the issuance of waste
discharge permits .. .[which] must be conditioned so the discharges authorized
will meet the water quality standards."). Here, the majority is turning the
protective nature of Washington's water quality standards on its head by reducing
entities' responsibility to establish they will not pollute through their discharge.
As a result, I respectfully dissent.
Washington law highly regulates the discharge of pollutants into the waters
of our state. Ch. 90.48 RCW. It is "unlawful for any person to ... discharge into
any of the waters ofthis state . . . matter that shall cause or tend to cause pollution
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5 (Gonzalez, J., dissenting)
of such waters." RCW 90.48.080. As a concession, perhaps, to the perceived
necessities ofthe time, pollution may be permitted, subject to stringent controls,
under discharge permits issued by the Department ofEcology. RCW 90.48.520.
Even when done under a permit, however,"[i]n no event shall the discharge of
toxieants be allowed that would violate any water quality standard, including
toxicant standards, sediment criteria, and dilution zone criteria." Id. And "[wjhile
an end to the diseharge of pollutants has not been achieved, it remains the legally
cognizable end point of water pollution regulation" and informs the interpretation
in both federal and state cases. 23 Timothy Butler & Matthew King,
Washington Practice: Environmental Law and Practice § 7.21, at 165 (2d
ed. 2007).
Seattle Iron and Metal(SIM)operates an auto shredding and metal
recycling business that discharges polluted wastewater and storm water into the
Lower Duwamish Waterway(Waterway), the 5.5 mile section ofthe Duwamish
River flowing into Elliott Bay.
For many years, the Waterway has been utilized as a resouree. Native
Ameriean peoples, such as the Squaxin Island Tribe, have caught and consumed
fish and shellfish from its waters. Amicus Curiae Squaxin Island Tribe Br. at 1.
Seattle industries have used the Waterway since the 1900s, resulting in heavy
pollution ofthe area. Pollution Control Hr'gs Bd. Findings of Fact, Conclusions of
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5 (Gonzalez, J., dissenting)
Law & Order(PCHB Order) at 3. As a result, the sediment and tissues of resident
sea life now exhibit elevated levels of substances hazardous to human health. Of
particular concern are polychlorinated biphenyls(PCBs). Banned since the 1970s,
PCBs are manufactured chemicals once widely used in products like electric
transformers, paint additives, and fire retardants. These chemicals are highly toxic,
persist in the environment for decades, and possess bioaccumulative properties.
The heightened level ofPCBs in the Waterway's organic and inorganic
material has attracted the attention of multiple state and federal agencies. The
Washington Department of Health cautions against human consumption of seafood
caught on the Waterway, classifying it as a "public health hazard." Id. at 4
(emphasis omitted). The United States Environmental Protection Agency(EPA)
has designated the Waterway a cleanup site with federal and state governments
cooperating to remediate and prevent further contamination.
In September 2013, Ecology issued a waste discharge permit to SIM. The
permit allowed wastewater discharges from the facility and required use of Method
608 to measure toxicants in its wastewater and storm water discharges. The permit
further required SIM to collect and submit discharge samples to a registered
laboratory for testing and to report this monitoring data to Ecology. Any water
quality violations were to be immediately reported. Between December 2007 and
June 2008, SIM failed to meet permit effluent limitations and conducted an
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5 (Gonzalez, J., dissenting)
unauthorized discharge. In response, Ecology issued a violation and
noncompliance notice.'
The permit established toxicant limitations and required testing methods to
monitor these toxicants. Puget Soundkeeper Alliance (Soundkeeper) challenged
the permit before the Pollution Control Hearings Board (Board), which largely
upheld it. Soundkeeper asks this court to reverse the Board's ruling and hold that
state regulations allow use of a more sensitive testing method than required by
SIM's permit or, alternatively, that the permit was contrary to state law because it
could not ensure compliance with water quality standards.
At the outset, I agree with the majority that Method 1668C does not
constitute,a "superseding method[]" under WAG 173-201 A-260(3)(h). Majority at
16-17. Under WAG 173-201A-260(3), Ecology must use EPA-approved testing
methods, and Method 1668G is not an approved method.^
I diverge from the majority because requiring use of Method 608 to monitor
PGB levels fails to ensure a permit holder's compliance with statutory water
quality standards. Accordingly, a permit that relies on Method 608 violates state
law. Such a permit should be denied. I cannot join the majority's conclusion that
'Ecology previously issued a discharge permit to SIM in 2007. Neither the 2007 permit nor
earlier violations are at issue here.
^ Clean Water Act Methods Update Rule for the Analysis of Effluent, 82 Fed. Reg. 40,836,
40,876(Aug. 28, 2017)(explaining that while Method 1668C "may be useful for determination
ofPCBs as individtial chlorinated biphenyl congeners.... [it] ha[s] not been approved for use at
40 CFR part 136").
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5 (Gonzalez,!., dissenting)
we should set aside state law standards in favor of less protective federal water
quality standards. This deference is to the detriment of our state law and our
State's environment. Accordingly, I respectfully dissent.
The National Pollutant Discharge Elimination System(NPDES)permits
must ensure compliance with both state and federal water quality standards. 33
U.S.C. § 1311(b)(1)(C); Snohomish County v. Pollution Control Hr'gs Bd., 187
Wash. 2d 346, 352, 386 P.3d 1064(2016). NPDES permits specify water quality
criteria and the required testing methods to apply. WAG 173-201A-260(3). State
law dictates that Ecology shall "incorporate permit conditions which require all
known, available, and reasonable methods to control toxicants in the applicant's
wastewater." RCW 90.48.520. It also forbids release oftoxicants that would
violate any water quality standard, including toxicant standards. RCW 90.48.520
("In no event shall the discharge oftoxicants be allowed that would violate any
water quality standard[]."). Thus, Ecology must modify an NPDES permit"when
it is determined that the discharge causes or contributes to a violation of water
quality standards" in our state. WAC 173-201 A-510(l)(b).
Federal regulations recognize that states may implement more stringent
water quality standards than provided in federal law. 40 C.F.R. § 122.44(d). Our
legislature has expressly stated that it is "the public policy of the state of
Washington to maintain the highest possible standards to insure the purity of all
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5 (Gonzalez, J., dissenting)
waters ofthe state consistent with public health and public enjoyment thereof," and
"require the use of all known available and reasonable methods by industries ... to
prevent and control the pollution" of waters. RCW 90.48.010.
Washington regulation explains that a testing method must meet one ofthree
requirements for use in NPDES permits: be in accord with 40 C.F.R. § 136, qualify
as a superseding published method, or use another Ecology-selected method
subject to EPA approval. WAC 173-20lA-260(3)(h). A testing method approved
under 40 C.F.R. § 136 is acceptable for a state-issued permit, but it is not required.
More importantly, where state law precludes pollution and 40 C.F.R § 136-testing
methods cannot ensure compliance with that law, WAC 173-20l-260(3)(h)
provides a solution: seeking EPA approval for a different testing method. While it
is certainly relevant to this case that 40 C.F.R. § 122.44(i) sets out sufficiently
sensitive testing requirements under federal law, this regulation by no means
answers the question currently before us: whether Washington law permits a
testing method that cannot ensure compliance with applicable toxicant standards.
An enforcement regime that fails to enforce the law renders RCW 90.48.520
meaningless. State v. J.P., 149 Wash. 2d 444, 450,69 P.3d 318(2003)(statutes must
be interpreted so that all language is given effect and no portion rendered
meaningless). For example, the heavy contamination of the Waterway, coupled
with the tenacious bioaccumulative properties ofPCBs, illustrates the significant
Piiget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5 (Gonzalez, J., dissenting)
hazard this pollution poses to aquatic life and to the health of Washington citizens,
especially Native American peoples, who consume and commercially harvest
Waterway fish and shellfish. To combat and protect against these risks, we must
zealously guard our natural resources. Granting an effluent permit that fails to
ensure compliance with our strict water quality standards does little to protect these
resources and will ultimately contribute to the continued contamination of the
Waterway. Entities have no right to pollute state waters.
At issue here is Method 608 and the human health criteria of 0.00017 pg/L
(micrograms per liter), the applicable water quality and toxicant standard. Method
608 has a practical quantitation limit of 0.5 pg/L, meaning it can reliably quantify
PCBs only at that level. WAC 173-201A-240(5)tbl. 240. Any test result showing
toxic substances between 0.00017 and 0.5 pg/L would not reveal effluent limit
violations. Because Method 608 cannot quantify these violations, it cannot ensure
permit holders comply with state water quality standards under RCW 90.48.520.
See also 40 C.F.R. § 122.4(d). This results in de jure prohibition and de facto
permission to pollute with PCBs. Permits incapable of quantifying toxicant
standard violations necessarily allow polluters to go unregulated. Ultimately, to
agree with the majority opinion is to accept that toxicant violations can, do, and
will continue to occur at a rate greater than 2,900 times the legal limit—more than
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Puget Soundkeeper Alliance v, Dep't ofEcology, No. 94293-5 (Gonzalez, J., dissenting)
2,900 times above the level protective of human health. But the majority does not
reconcile this fact or acknowledge that this is the reality.
NPDES permit testing procedures detect toxicants at different
concentrations. "All testing methods have a method detection level," which is the
"lowest level at which the concentration of a substance can reliably be detected."
PCHB Order at 26. Using this method detection level, the practical quantitation
level is calculated; this represents the lowest level at which a concentration can be
reliably quantified.
The majority cites 40 C.F.R. § 122.44(i)(l)(iv)(A)(2) as validating the use of
Method 608 in SIM's permit. Majority at 9-10. This regulation provides that a
toxicant monitoring method is sufficiently sensitive if the method minimum level
is at or below the limit specified in the permit or it is adopted in 40 C.F.R. § 136.
Notably, this regulation does not specify the level required by individual states.
Indeed, federal regulations leave it to individual states to determine the acceptable
testing methods and water quality standards for permit holders.
In light ofthe applicable toxicant standard set for SIM,to satisfy the law,
SIM's permit must contain a testing method that has the capacity to quantify
toxicants at the level of 0.00017 pg/L. Ecology argues that under WAG 173-
201A-260(3)(h), it could select only a method approved by 40 C.F.R. § 136. But
Ecology's discretion is not so limited. WAC 173-201 A-260(3)(h) allows the
Puget Soundkeeper Alliance v. Dep't ofEcology, No. 94293-5 (Gonzalez, J., dissenting)
agency to "also approve other methods following consultation with adjacent states
and with the approval ofthe [EPA]." Ecology may therefore seek approval of
other methods, such as Method 1668C or Method 8082A, for use in NPDES
permits.^ Indeed, Ecology has previously acquired EPA approval for alternative
tests in some cases. At a Boeing cleanup site, for example. Ecology staff
approached their federal counterparts to obtain permission to use a more sensitive
testing method than approved by 40 C.F.R. § 136. Boeing and Ecology jointly
wrote to the EPA,requested use of the alternate method, and within approximately
45 days, EPA granted approval. Verbatim Report ofProceedings(Mar. 19, 2015)
at 711-14.
I am not advocating for a categorical proclamation against issuing NPDES
permits. We recognize that the process of establishing a permittee's permissible
effluent discharge limit and water quality standard is highly fact specific. Where a
permit holder's effluent discharges can be reliably measured, by Method 608 for
example, and those measurements ensure compliance with applicable water quality
standards, such a permit would likely comply with both state and federal law and
^ At the Board's hearing in this matter, an Ecology representative acknowledged that Method
8082A was originally required in SIM's 2013 permit because the agency felt it needed to detect
PCBs at lower levels than Method 608 allowed. PCHB Order at 27. Prior to the hearing.
Ecology determined Method 8082A was ineligible for use in discharge permits because it was
not included in 40 C.F.R. § 136, and Ecology modified SIM's permit to require Method 608
instead. Ecology's representative testified that requesting blanket approval from the EPA to use
Method 8082A for Duwamish sites would "he a good proposal because the method is already
being used by several government agencies, including Ecology." Id.
Piiget Soiindkeeper Alliance v. Dep't ofEcology, No. 94293-5 (Gonzalez, J., dissenting)
regulation. In instances where a testing method cannot ensure compliance with
state water quality standards, Ecology is not required to deny a permit—it may
review the applicable toxicant standard or seek EPA approval for alternative
testing methods, as it has done in the past.
The Board's ruling that Ecology may issue a waste discharge permit that
complies with state regulation but cannot accurately quantify water quality
violations was contrary to state law, RCW 90.48.520, and federal regulation, 40
C.F.R. § 122.44(d)(1). To find otherwise, as the majority does,jeopardizes the
well-being of our environment. In the future, if using a method that does not
comport with state statutory standards. Ecology must make recorded attempts to
get EPA approval of a sufficient alternative testing method per WAC 173-201-
260(3)(h). NPDES permits should be denied if the required method cannot ensure
compliance with our state law. Accordingly, 1 respectfully dissent.
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