356 P.3d 753
Wash. Ct. App.2015Background
- Department of Ecology issued a five-year NPDES permit to BP Cherry Point Refinery authorizing treated wastewater discharges; permit condition S7 addressed acute whole effluent toxicity (WET).
- S7 defined the acute critical effluent concentration (ACEC) (3.6% effluent) and required WET testing: a statistically significant difference in survival between control and ACEC constitutes a failed test.
- S7 allowed a permittee that obtains a single failed WET test to avoid a permit violation if it follows one of two follow-up tracks: (a) four weekly retests (and reporting or a TI/RE plan if failures continue) or (b) an immediate retest if the permittee claims the first was anomalous.
- Soundkeeper challenged S7, arguing a single non‑anomalous failed WET test must be a permit violation because WET failure shows a water‑quality standards violation; Department and BP argued a single failure is not automatically a violation due to test imprecision and the regulatory follow‑up process.
- The Pollution Control Hearings Board upheld S7 to the extent it permitted a single failed WET test without treating it as a permit violation; the Court of Appeals reviewed and reversed, holding a single failed WET test (unless deemed anomalous) establishes a violation and the permit must be revised.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a single non-anomalous failed WET test constitutes a violation of the NPDES permit and state/federal water quality standards | A single statistically valid failed WET test demonstrates acute toxicity and thus violates the narrative water quality standard and the permit | WET tests are inherently imprecise; follow-up testing and retest procedures mean a single failed test should not automatically be a permit violation | A single failed WET test not deemed anomalous establishes a violation of state and federal law (and the permit); remand to revise permit to state that clearly |
Key Cases Cited
- PUD No. 1 of Jefferson County v. Wash. Dep’t of Ecology, 511 U.S. 700 (Supreme Court) (CWA purpose and state role in water quality enforcement)
- Defs. of Wildlife v. Browner, 191 F.3d 1159 (9th Cir.) (NPDES permits must include limits necessary to meet water quality standards regardless of technical practicability)
- Edison Elec. Inst. v. EPA, 391 F.3d 1267 (D.C. Cir.) (description and judicial acceptance of WET test methods; single failed WET test can constitute permit violation)
- Port of Seattle v. Pollution Control Hr’gs Bd., 151 Wn.2d 568 (Wash.) (deference principles and administrative review)
- Verizon N.W., Inc. v. Employment Sec. Dep’t, 164 Wn.2d 909 (Wash.) (standards for layering APA review with summary judgment)
- Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1 (Wash.) (statutory interpretation principles)