Puget Soundkeeper Alliance v. State

• Decision Date: 30 August 2018
• Docket Number: No. 94293-5,94293-5
• Citation: 191 Wash.2d 631,424 P.3d 1173
• Parties: PUGET SOUNDKEEPER ALLIANCE, Petitioner, v. STATE of Washington, DEPARTMENT OF ECOLOGY; and State of Washington Pollution Control Hearings Board, Respondents.
• Court: Washington Supreme Court

191 Wash.2d 631

424 P.3d 1173

PUGET SOUNDKEEPER ALLIANCE, Petitioner,

v.STATE of Washington, DEPARTMENT OF ECOLOGY; and State of Washington Pollution Control Hearings Board, Respondents.

No. 94293-5

Supreme Court of Washington.

Oral Argument Date: October 19, 2017

Filed AUGUST 30, 2018

Richard Adam Smith, Claire Elizabeth Tonry, Smith & Lowney PLLC, 2317 E. John Street, Seattle, WA 98112-5412, for Petitioner.

Phyllis Jean Barney, Office of the Attomey General, 2425 Bristol Court SW, Olympia, WA 98502-6003, Anne Elizabeth Egeler, Office of the Attorney General, 1125 Washington Street SE, Olympia, WA 98504-0100, Dionne Padilla-Huddleston, Office of the Attorney General, 800 Fifth Avenue, Suite 2000, Seattle, WA 98104-3188, for Respondents.

James A. Tupper Jr., Lynne Michele Cohee, Tupper Mack Wells PLLC, 2025 1st Avenue, Suite 1100, Seattle, WA 98121-2100, for Amicus Curiae (Association of Washington Business).

Sheila Marie Gall, Association of Washington Cities, 1076 Franklin Street SE, Olympia, WA 98501-1346, for Amicus Curiae (Association of Washington Cities).

Katherine Hambley, Attorney at Law, 901 5th Avenue, Suite 3500, Seattle, WA 98164-2059, for Amicus Curiae (Duwamish River Cleanup Coalition/Technical Advisory Group).

James A. Tupper Jr., Lynne Michele Cohee, Tupper Mack Wells PLLC, 2025 1st Avenue, Suite 1100, Seattle, WA 98121-2100, for Amicus Curiae (Northwest Pulp & Paper Association).

Lori Ann Terry, Foster Pepper PLLC, 1111 3rd Avenue, Suite 3000, Seattle, WA 98101-3292, for Amicus Curiae (Spokane County).

Richard Kirk Eichstaedt, Gonzaga University School of Law, 721 N. Cincinnati Street, Spokane, WA 99202-2021, for Amicus Curiae (Spokane Riverkeeper).

Janette K. Brimmer, Earthjustice, 705 2nd Avenue, Suite 203, Seattle, WA 98104-1711, for Amicus Curiae (Squaxin Island Tribe).

JOHNSON, J.

¶ 1 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 Agency (EPA) as reliable for permit compliance purposes. We hold that it does not and affirm the Court of Appeals.¹

FACTS AND PROCEDURAL BACKGROUND

¶ 2 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.

¶ 3 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.

¶ 4 The permit in question² 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.

¶ 5 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) ; WAC 173-226-070. Of particular concern is the presence and concentration of polychlorinated biphenyls (PCBs).

¶ 6 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 limits imposed and the use of Method 608 instead of a different, more sensitive test, Method 1668C.

¶ 7 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 µg/L (micrograms per liter). See WAC 173-201A-240(5). The Board also concluded that under existing state and federal regulations, Ecology was required to use Method 608 in NPDES permits and could seek EPA’s approval to use Method 1668C, but was not required to do so because Method 608 was the only EPA-approved test available.

¶ 8 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

¶ 9 In its argument to us, Soundkeeper essentially contends that compliance with a regulation, WAC 173-201A-260(3)(h),³ conflicts with a statute, RCW 90.48.520. Specifically, it argues that because the testing procedure required under the 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

¶ 10 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 of Pend Oreille County v. Dep’t of Ecology, 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(1)(a).

¶ 11 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).

¶ 12 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 of the law de novo. Snohomish County v . Pollution Control Hr’gs Bd., 187 Wash.2d 346, 357, 386 P.3d 1064 (2016) ; Port of Seattle v . Pollution Control Hr’gs Bd., 151 Wash.2d 568, 587, 90 P.3d 659 (2004). "[W]e accord an agency’s interpretation of the law great weight where the statute is ambiguous and is within the agency’s special expertise." Snohomish County, 187 Wash.2d at 357, 386 P.3d 1064.

B. Statutory and Regulatory Requirements for Water Pollution

¶ 13 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 NPDES 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, 386 P.3d 1064. 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, 386 P.3d 1064 (alteration in original) (quoting RCW 90.48.260(1)(a) ).

¶ 14 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 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).

¶ 15 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 of PCBs to 0.00017 µg/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

¶ 16 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.

¶ 17 As mentioned earlier, an NPDES permit specifies water quality criteria and the required methods to apply it. WAC 173-20lA-260(3). Method 608 has a practical quantitation limit of 0.5 µg/L, which means that it can reliably quantify PCB concentrations only at that level.⁴ WAC 173-201A-240(5) tbl. 240; Admin. Record (AR) at 3305. Using...