                                                                                                         i it -l. D
                                                                                                 COURT OF APPc ALS

                                                                                                2015 JUL 28 AM 8. 23

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                                                                                                                x     NvGT0114


                                                                                                        011: PVY



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                                DIVISION II


 PUGET SOUNDKEEPER ALLIANCE; RE                                                  No. 45609 -5 -II
 SOURCES FOR SUSTAINABLE
 COMMUNITIES; and FRIENDS OF THE
 EARTH,


                                     Appellants,                             PUBLISHED OPINION


        V.




 STATE        OF   WASHINGTON,              POLLUTION
 CONTROL           HEARINGS           BOARD;         and

 DEPARTMENT OF ECOLOGY,




       BJORGEN, A.C. J. — Puget Soundkeeper Alliance, RE Sources for Sustainable


Communities, and Friends of the Earth (collectively Soundkeeper) challenge an order of the

Pollution Control Hearings Board ( Board) involving a wastewater discharge permit that the

Department of Ecology (Department) issued to BP West Coast Products LLC (BP) for one of its

oil refineries. The Board ruled that the Department properly included a condition specifying that

a single failed whole effluent toxicity (WET) test does not violate the permit' s terms as long as.

BP takes   certain subsequent measures.         On appeal, Soundkeeper argues that the permit condition


effectively   allows   toxic   discharges   prohibited   by   statute and   the Department'   s own regulations.
No. 45609 -5 -II



Because the Department' s interpretation of the WET rules allows discharges that violate a water


quality standard, and thus conflicts with the governing statute and regulations, we reverse.

                                  FACTS AND PROCEDURAL HISTORY


          In February 2012, the Department issued a National Pollutant Discharge Elimination

System ( NPDES) permit under the Federal Water Pollution Control Act (clean water act)


 CWA), 86 Stat. 816,        codified as amended at           33 U. S. C. §§ 1251- 1388, and the state water


pollution control act, chapter 90.48 RCW, authorizing BP to discharge treated wastewater from

the `BP   Cherry   Point   Refinery   into the Strait      of   Georgia,      a navigable
                                                                                            waterway.'   Soundkeeper


and BP both appealed to the Board, challenging several of the permit' s conditions.

          Of the permit conditions addressed by the Board, the one at issue in this appeal is

designated in the     permit as "   S7. Acute Toxicity" ( S7). Administrative Record ( AR) at 684. It


provides     that "[ t] he effluent limit   for   acute   toxicity is: [ n] o acute toxicity detected in a test

concentration      representing the   acute critical effluent concentration ( ACEC)."                 AR at 684.


Subsection A of condition S7 defines the ACEC as " the maximum concentration of effluent


during    critical conditions at    the   boundary    of   the   acute   mixing    zone,"   namely, " 3. 6 [ percent]


effluent."    AR at 684.


          Subsection B of condition S7 explains what constitutes compliance with the acute


toxicity effluent limit:

          Compliance with the effluent limit for acute toxicity means the results of the testing
          specified in subsection C. show no statistically significant difference in survival [ of
          the test organisms] between the control and the ACEC.




 The   point of    discharge, which the       permit      identifies   as "   Outfall 001," lies in an area designated
as an extraordinary marine receiving water, part of the Department of Natural Resources' s
Cherry Point Aquatic Reserve. AR at 544- 45, 672. According to the Department, each day BP' s
facility discharges an average of seven million gallons of treated wastewater used in its refining
processes.

                                                                 2
No. 45609 -5 -II



         If the test results show a statistically significant difference in survival between the
         control and the ACEC, the test does not comply with the effluent limit for acute
         toxicity. [ BP] must then immediately conduct the additional testing described in
         subsection    D. [   BP] will comply with the requirements of this section by meeting
         the requirements of subsection D.

AR at 684. The subsection goes on to specify how to determine whether differences in test

results are statistically significant, depending on the magnitude of the difference. Subsection C

identifies the WET testing methods BP must employ, including how frequently to test and which

organisms to use.


         Subsection D of condition S7 gives BP two options upon learning of a failed test result.

BP may continue discharging wastewater for the duration of the permit, without becoming

subject to enforcement action by the Department, so long as it pursues either option.

         The first option requires BP to conduct additional WET tests weekly for four consecutive

weeks.   If all four   subsequent samples pass    the test, BP "   must submit a report ...        on possible




causes and preventive measures        for the transient toxicity   event."   AR at686. If any of the four

subsequent samples also fails the WET test, however, BP " must submit a Toxicity

Identification/Reduction Evaluation plan to [ the Department] within 60 days after the sample


date."   AR at 686.


         The   second option applies    if BP " believes that the [ failed] test   result   is   anomalous,"   in


which case it may conduct one additional WET test and notify the Department, explaining why it

believes the original result unreliable or erroneous. AR at 685- 86. If the second sample also fails


the test, or if the Department disagrees that the original result was anomalous, BP must comply

with the requirements just described under the first option. If the Department agrees that the first


result was an anomaly, and the second sample passes the test, the Department will rely on the

second test and BP need take no further action.




                                                       3
No: 45609- 5- I1



         Soundkeeper challenged condition S7 before the Board, arguing that it allowed BP " to

discharge toxic     effluent   in   violation of applicable             law,"   and "[     i] nstead of providing that failure of

a   WET test is   a permit violation, [         it] allow[ s] for compliance through performance of retesting
                                                                          2
and   planning that   need not      actually     reduce    toxicity."          AR    at   32- 33.   BP challenged the same


condition before the Board on the ground that it "unlawfully suggests that a permittee may

violate" the permit condition by failing a WET test, even when the permittee complies with the

follow-up   process.      AR   at   101.    The Department likewise took the position that " there is no


permit violation when the WET standard of the Permit is violated, as long as the permittee

performs   the    required   follow-up testing, monitoring,                   and   study   required   by   the Permit."   CP 12.


The Board consolidated the appeals.


         Soundkeeper, the Department, and BP each moved for summary judgment on the legal

issues related to condition S7. The Board granted the Department' s and Soundkeeper' s motions


in part and denied BP' s, ruling the permit term valid to the extent it provided that a single failed

WET test did not violate the permit, but remanding to the Department " to clarify that ongoing

exceedances of      the   WET limit        are violations of      the Permit         and are enforceable."        AR at 1108- 10.


         Soundkeeper petitioned for judicial review in the Thurston County Superior Court under

the Administrative Procedures Act, chapter 34. 05 RCW. The Board subsequently issued a

certificate of    appealability     under    RCW 34. 05. 518( 3)( b), and the parties petitioned us for direct


review of   the Board'     s order with respect          to condition S7.            Our commissioner granted the petition,


accepting " review of the [ Board]' s order on summary judgment regarding whether a single WET

test failure is   a violation of the       NPDES        permit."    Ruling Accepting Direct Review, Puget




z
    According    to the Department'        s"   fact   sheet,"   BP' s refinery failed 17 of the last 55 reported
WET tests. AR at 568.

                                                                   rd
No. 45609 -5 -II



Soundkeeper v. Pollution Control Hr' gs Bd., No. 45609 -5 -II, at 5 ( Wash. Ct. App. Feb. 27,

2014).


                                                   ANALYSIS


         After setting out the standard of review, we examine the relevant law governing NPDES

permits for wastewater discharges. We then consider whether the Board' s interpretation of the


permit condition at issue here comports with those provisions. Concluding it does not, we

reverse the Board.


                                            I. STANDARD OF REVIEW


         The Administrative Procedures Act governs our review of the Board' s orders. RCW


34. 05. 510,.   518; Port ofSeattle v. Pollution Control Hr' gs Bd., 151 Wn.2d 568, 587, 90 P. 3d

659 ( 2004).    As relevant, the Administrative Procedures Act specifies that the reviewing court

         shall grant relief from an agency order in an adjudicative proceeding only if it
         determines that:


         b)  The order is outside the statutory authority or jurisdiction of the agency
         conferred by any provision of law;

          d) The agency has erroneously interpreted or applied the law;
          e) The order is not supported by evidence that is substantial when viewed in light
         of   the whole record before the court; [ or]



         h) The order is inconsistent with a rule of the agency unless the agency explains
         the inconsistency by stating facts and reasons to demonstrate a rational basis for
         inconsistency.

RCW 34. 05. 570( 3).       The party challenging an administrative order bears the burden of

demonstrating its invalidity. RCW 34. 05. 570( 1)( a).

         Where,    as   here, the   original administrative   decision   was on   summary judgment, " the


reviewing court must overlay the [ Administrative Procedures Act] standard of review with the

summary judgment          standard."    Verizon Nw., Inc. v. Emp' t Sec. Dep' t, 164 Wn.2d 909, 916, 194



                                                         E
No. 45609 -5 -II



P. 3d 255 ( 2008).       Our review is limited to the record before the Board. RCW 34. 05. 558; Port of

Seattle, 151 Wn.2d         at   587. "   Summary judgment is appropriate only where the undisputed facts

entitle   the moving party to        judgment   as a matter of       law."   Verizon Nw., 164 Wn.2d at 916. In


reviewing summary judgment, we evaluate the facts in the administrative record de novo.

Verizon Nw., 164 Wn.2d at 916.


           We review an agency' s legal determinations under the " error of law" standard, which

allows us      to   substitute our view of    the   law for the agency'      s.   Verizon Nw., 164 Wn. 2d at 915.


Under this standard, we generally review the agency' s application of the law to a particular set of

facts de   novo.      Port of Seattle, 151 Wn.2d        at   588.    Where a challenge requires us to construe a


statute, we "       determine[] the meaning      and purpose of a statute         de   novo,"   but accord " great


weight" to the agency' s interpretation of "an ambiguous statute which falls within the agency' s

expertise,"     provided that interpretation does not conflict with the statute' s language or


underlying intent. Pub. Util. Dist. No. I ofPend Oreille County v. Dep' t ofEcology, 146 Wn.2d

778, 790, 51 P. 3d 744 ( 2002).


           We show the same deference to an agency' s interpretation of its own regulations. Port of

Seattle, 151 Wn.2d at 593. Nonetheless, the agency' s interpretation does not bind us, and

 deference to an agency is inappropriate where the agency' s interpretation conflicts with a

statutory   mandate."       Dep' t   of Labor & Indus. v. Granger, 159 Wn.2d 752, 764, 153 P. 3d 839


 2007).     To interpret agency regulations, we apply the same principles used to interpret statutes.

Linville v. State, 137 Wn. App. 201, 209, 151 P. 3d 1073 ( 2007).

           In interpreting a statute, our " fundamental objective is to ascertain and carry out the

Legislature' s intent, and if the statute' s meaning is plain on its face, then [ we] must give effect to

that   plain   meaning    as an expression of       legislative intent."      Dep' t ofEcology v. Campbell &



                                                                on
No. 45609 -5 - II



Gwinn, LLC, 146 Wn.2d 1, 9- 10, 43 P. 3d 4 ( 2002).                         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 Wn.2d at 11.


            If "the statute remains susceptible to more than one reasonable meaning" after

consideration of all relevant             statutory language, " the statute is ambiguous and it is appropriate to


resort     to   aids   to   construction,     including      legislative   history."   Campbell & Gwinn, 146 Wn.2d at


12. We also " consider interpretation of analogous federal law" in these determinations. Marquis


v. City ofSpokane, 130 Wn.2d 97, 113, 922 P. 2d 43 ( 1996).

                                                            II. GOVERNING LAW


            The federal CWA aims to " restore and maintain the. chemical, physical, and biological


integrity of the Nation' s waters" and to achieve or maintain " water quality which provides for

the   protection and propagation of                 fish,   shellfish, and wildlife."    33 U. S. C. § 1251(   a);   Pub. Util.


Dist. No. I ofJefferson County v. Dep' t ofEcology, 511 U.S. 700, 704, 114 S. Ct. 1900, 128 L.

Ed. 2d 716 ( 1994).             The CWA specifies that " it is the national policy that the discharge of toxic

pollutants       in toxic     amounts    be    prohibited,"      33 U. S. C. § 1251( a)( 3),   and broadly prohibits " the

discharge        of    any   pollutant   by   any   person,"    except as authorized by enumerated statutory

provisions.           33 U. S. C. § 1311( a).


            The federal Environmental Protection Agency ( EPA) or EPA -authorized state agencies

may issue NPDES permits allowing wastewater discharges that meet the CWA' s requirements.

33 U. S. C. §          1342. Our Legislature has granted the Department authority " to participate fully in

the programs of the [ CWA] as well as to take all action necessary to secure to the state benefits

and   to   meet       the   requirements of     that act."      RCW 90. 48. 260( 1).     The EPA has duly authorized the




                                                                      7
No. 45609 -5 -II



Department to issue NPDES                  permits.    Ass'    n   to Protect   Hammersley,   Eld, & Totten Inlets v.


Taylor Res., Inc., 299 F. 3d 1007, 1009- 10 ( 9th Cir. 2002).


             Agencies issuing NPDES permits must impose limits on discharges as necessary to

implement water quality standards set by state or federal statutes and regulations, regardless of

technical practicability. 40              C. F. R. § 122. 4; WAC 173-.220- 130( 1)( b);         Defenders of Wildlife v.

Browner, 191 F. 3d 1159, 1163, amended on denial ofreh' g, 197 F. 3d 1035 ( 9th Cir. 1999).

More specifically, state agencies may not issue NPDES permits

             w]hen the conditions of the permit do not provide for compliance with the
             applicable requirements of            CWA,    or regulations promulgated under               CWA; ... [   or

             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( a),       (   d).   Washington law makes clear that these requirements apply to each

discharge: WAC 173- 220- 150( 1)( c) provides that " each issued [ NPDES] permit shall require


that ... [    a] ny   discharge     of   any   pollutant ...       at a level in excess of that identified and authorized


by the permit shall constitute a violation of the terms and conditions of the permit."

             Similarly, our Legislature has in no uncertain terms prohibited the Department from

issuing      permits   that   allow      toxic   discharges in      violation of applicable standards: "       In no event


shall the discharge of toxicants be allowed that would.violate any water quality standard,

including      toxicant standards, sediment             criteria, and     dilution   zone criteria."      RCW 90. 48. 520.


Consistently      with   this      mandate,      WAC 173- 205- 070( 1)( d) further        specifies    that "[ t] he compliance



test for acute toxicity shall be considered to be a maximum daily discharge permit limitation."

             Turning now to the standards, the narrative water quality standard governing toxic

discharges is set out in WAC 173- 201A-240( 1):


             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
No. 45609 -5 -II



           biota dependent upon those waters, or adversely affect public health, as determined
           by the department.

This regulation mandates also that the Department " shall employ or require chemical testing,

acute and chronic toxicity testing, and biological assessments, as appropriate, to evaluate

compliance with" the standard. WAC 173- 201A-240( 2).


            Compliance with the narrative standard is more precisely fixed by WAC 173- 205- 070( 1),

which provides that


            a] discharge is in compliance with the narrative water quality standard for acute
           toxicity when the most recent acute toxicity test has shown no statistically
            significant difference in response between the acute critical effluent concentration
            and a control.




As discussed, condition S7 employs the WET test to measure acute toxicity. The United States

EPA Environmental Appeals Board described that test and its role in the NPDES permit system


in the following terms:

            Whole    effluent      toxicity (" WET") is defined      under   EPA   regulations   as "   the
            aggregate     toxic                          directly by a toxicity test." 40 C. F. R.
                                  effect of an effluent measured

              122. 2 ( 2000)....   Basically, the WET approach protects the quality of the
            receiving water body from the aggregate toxic effects of a mixture of pollutants in
            the effluent. Id. The WET approach is implemented by measuring the degree of

            response of aquatic test organisms that have been exposed to toxic pollutants over
            short   andlong periods of time. These two types of WET tests are known
            respectively as acute and chronic toxicity testing. See id. at 95.

In   re   New England Plating Co., 9 E.A. D. 726, 2001 WL 328213, * 1 n.2 ( EPA 2001).


            The United States Court of Appeals for the District of Columbia Circuit described the


WET test more specifically in Edison Electric Institute v. Environmental Protection Agency, 391

F. 3d 1267, 1272- 73 ( D. C. Cir. 2004) ( citing        EPA final WET rule, 67 Fed. Reg. at 69, 957- 58):

            A single WET test involves exposing multiple batches of organisms to the effluent
            at various concentrations, as well as to a " control" sample of pure water, and then

            aggregating the       effects on each   batch.   Statistical analysis then is used to ensure

            that any observed differences between the organisms exposed to a given effluent

                                                             M
No. 45609 -5 -II



            concentration and those exposed to the control blanks most likely are not
            attributable    to   randomness—   that they are statistically significant.

The circuit court affirmed EPA' s determination that " these WET test methods exhibit a degree of


precision compatible with numerous chemical -specific                 tests already in   use."   Edison Elec. Inst.,,


391 F. 3d at 1271.


            The consequences of a failed acute WET test are also set out in the Department' s rules.


According to WAC 173- 205- 070( 1)( c),

             i]f a statistically significant difference in response is determined between the
            control and the acute critical effluent concentration in an acute toxicity test, then
            the effluent has failed the test for compliance with the whole effluent acute toxicity
            limit and the permittee shall immediately begin the process described in WAC 173-
            205- 090.


WAC 173- 205- 090 requires the permittee to either conduct four weekly WET tests or conduct

one additional test and notify the Department that it believes the failed result anomalous. WAC

173- 205- 070( 5)( c) provides that the Department may identify " anomalous test results which

should not be used for the compliance determinations in this chapter."


            In the event of a single failed WET test not determined by the Department to be

anomalous,        WAC 173- 205- 100( 1)( b)     requires    the   permittee   to "[ s] ubmit a report to the



department on the possible causes and preventive measures for the transient toxicity within thirty

days   of   the last additional sample."       If any of the additional samples fail the WET test, however,

 the permittee shall submit a plan to the department within sixty days of the last additional

sample      for   a
                      toxicity identification/ reduction   evaluation."   WAC 173- 205- 100( 2). 3




3 As part of this plan, the permittee may request a six-month delay before even beginning the
investigation aimed at controlling the most likely sources of toxicity. WAC 173- 205- 100( 2)( a)..
The legality of such a lengthy cumulative delay in remedying a toxic discharge shown by two
failed, nonanomalous WET tests isnot before us.


                                                             10
No. 45609 -5 - II



                             M. THE BOARD' S INTERPRETATION OF CONDITION S7


          Soundkeeper contends, for two closely related reasons, that the Board erred in ruling that

the Department may issue NPDES permits that specify that a single failed WET test does not

violate   the   permit' s   terms.   First, Soundkeeper argues that the governing statute and regulations

clearly establish that a single WET test failure constitutes a violation of the water quality

standard, and thus of the permit, and that the Board therefore based its ruling on an erroneous

interpretation of law. Second, Soundkeeper argues that the Board erred in deferring to the

Department' s interpretation of the statute and regulations because ( 1) the record fails to support a


determination that a single WET test failure does not establish a violation of the water quality

standard and ( 2) the Department' s interpretation conflicts with its own regulations and the


governing statute.


          The Department counters that the WET test is inherently imprecise because it relies on

living organisms and that a failed WET test therefore " does not prove that a facility discharged a

toxic   substance."
                         Br. of Resp' t Ecology 16- 18, 19. From this, the Department argues that

condition S7 does not run afoul of the requirements of the CWA and state -water quality,

standards. Because the matter concerns a technical, scientific question within the Department' s


expertise, it argues that the Board did not err in deferring to the Department' s decision not to

treat a single failed WET test as a permit violation.

                                                           4
          BP    echoes   the Department'    s arguments,       pointing out that the statistical methods create

some risk of "false positive" WET test results, resulting in a probability over the five- year permit


4 BP also argues that compliance with WAC 173- 205- 090' s retesting and evaluation process
itself constitutes compliance with the narrative water quality standard, and thus with the permit,
regardless of how many samples fail the WET test. We granted review, however, only on the
issue of whether a single failed WET test constitutes a permit violation. Ruling Accepting Direct
Review, Puget Soundkeeper v. Pollution Control Hr gs Bd., No. 45609 -5 -II at 5 ( Feb. 27, 2014).
Our resolution of that issue, furthermore, renders. BP' s argument on this point untenable.

                                                           11
No. 45609 -5 - II



duration   of at   least   one such   false   positive   that BP deems " unacceptably high."      Br. of Resp' t BP

at 29- 31, 31 n.2. BP further argues that, because the regulation prescribes specific actions a


permittee must take in the event of a failed WET test, the use of the terms " whole effluent


toxicity limit" and " maximum daily discharge permit limitation" in WAC 173- 205- 070 does not

necessarily establish that exceeding those limits violates the permit. Br. of Resp' t BP at 31- 36.

BP also points out that the fact that a discharge that passed the WET test is in compliance with


the narrative standard does not logically imply that a discharge that failed the most recent WET

test is out of compliance with the standard.


         We agree with Soundkeeper. The Board' s order authorizes the Department to issue


permits that allow discharges that fail a valid WET test. As shown below, the regulations' plain


language dictates that a single failed WET test violates the narrative water quality standard,

unless   the Department       designates the      result anomalous under      WAC 173- 205- 070( 5)(   c).    The


governing statutory and federal regulatory provisions make clear that NPDES permits may not

authorize discharges that violate a water quality standard. Therefore, the Department' s

interpretation, to which the Board deferred, conflicts both with the regulations' plain language


and with the controlling statute and federal regulations.

A.       The Board' s Order Conflicts with Regulations Establishing That a Failed WET Test
         Violates Water Quality Standards


         The   water    quality   standard at    issue   provides   that "[ t] oxic substances shall not be


introduced above natural background levels in waters of the state which have the potential either


singularly    or   cumulatively to ...        cause acute or chronic    toxicity ... as determined by the

department."       WAC 173- 201A- 240( 1).          The regulation mandates " acute and chronic toxicity

testing ...   to   evaluate compliance" with         that   standard.   WAC 173- 201A-240( 2). A related


regulation defines " compliance with the narrative water quality standard for acute toxicity" and

                                                              12
No. 45609 -5 -II



expressly states that a failed WET test means that " the effluent has failed the test for compliance

with   the   whole effluent acute    toxicity limit." WAC 173- 205- 070( 1)(             c).   Contrary to the

Department' s and BP' s position, then, the regulations clearly establish not only that a passing

WET test demonstrates compliance with the standard, but that failing the test establishes a

violation of the standard.



           Consistently with the controlling federal regulation, 40 C. F. R. section 122. 4, the

Department'     s acute   toxicity WET    regulation,       WAC 173- 205- 070( 1)( d), unambiguously requires


that "[   t] he compliance test for acute toxicity shall be considered to be a maximum daily

discharge     permit   limitation." WAC 173.-220- 150( 1)( c) further mandates that " each issued


 NPDES]       permit shall require   that ... [    a]   ny discharge   of   any   pollutant ...   at a level in excess of


that identified and authorized by the permit shall constitute a violation of the terms and

conditions of    the permit." (   Emphasis        added.)   These regulations also leave no room but to


conclude that a failed WET test establishes a violation of a water quality standard..

           BP seeks to escape this conclusion by arguing that failure to comply with an acute

toxicity limit or maximum daily discharge limitation does not equate with failure to comply with

a water quality standard. BP points out that, unlike the regulations defining compliance with the

Department' s numeric water quality standards applying to specific substances, the regulation at

issue here prescribes additional testing and remedial measures in the event of a failed test. BP

contends that this shows that the regulations do not treat a failed WET test as a violation of the


water quality standard.5 We disagree.



5 BP also argues that reading the regulations so that a failed WET test establishes a permit
violation would render the follow-up testing and evaluation provisions superfluous. This is so,
BP contends, because finding a permit violation would authorize the Department to order further
testing and evaluation in any event. This argument is not persuasive. Including in the regulation
specific procedures to follow in case of a violation creates certainty and relieves regulators from
                                                              13
No. 45609 -5 -II



          The prescription of steps that a permittee must take upon failing the compliance test in no

way indicates that following those steps means no violation occurred. As just shown, this

reading runs counter to the plain import of the regulations' language. Further, it is eminently

logical, after defining what constitutes a violation, to articulate steps designed to return the

permittee to compliance and prevent future violations.


          Also, the regulations' treatment of compliance tests for numeric water -quality standards

does not imply that a single failed WET test is not a permit violation. The tests for compliance

with numeric water quality standards necessarily show which substances exist at toxic levels.

WET testing, on the. other hand, detects toxicity in the entire mixture of substances a discharge

contains, but does not reveal exactly which substance or combination of substances produced

that   toxicity. See AR    at   444 ("   WET testing is necessary because EPA cannot develop water

quality criteria for every one of the thousands of toxic pollutants possibly found in wastewater

discharges. WET testing is also the only method available to permit managers for assessing the

toxic interaction of pollutants.")


          The follow-up evaluation procedures for WET tests plainly aim to provide regulators and

permittees with additional information so that they may determine the cause of the toxicity and

restore compliance with the WET limit. In the case of tests for a specific substance, these


questions generally do not arise: the permittee necessarily knows the problem substance and

likely has some idea how it entered the discharge in toxic amounts. Thus, the regulations'




having to draft an order every time a sample fails the WET test. The record shows that the
Department included the follow-up procedures in the regulation for precisely these reasons. See
AR at 515- 16 ( The language was intended to meet a perceived " need for a very defined process"
and because the Department' s " facility mangers didn' t want to have to interrupt their workload
to   write an order ...   to implement a TURE, for example.").

                                                        14
No. 45609 -5 -II



differing treatment of WET tests merely reflects the role and nature of WET testing, not any

uncertainty about whether a discharge was in fact toxic.

          One of respondents' most powerful arguments is that due to the inherent imprecision of


the WET test, a single failed test does not reliably show the discharge of a toxic substance.

When asked at oral argument whether anything in the record showed it had made such a

determination, the Department directed our attention only to the WET regulations themselves

and the Department' s NPDES permit writer' s manual. Wash. Court of Appeals oral argument,


Puget Soundkeeper        v.
                              Dep' t of Ecology, No.      45609 -5 - II (March 31, 2015), at 26 min. 53 sec.


through 28   min.   31   sec. (    on file with court).


          The regulations, however, confirm that a valid, failed WET test shows that the discharge


was   toxic. The WET          testing   regulations   define "[ s] tatistically significant" as " establishing that a


difference in response between a control and an effluent concentration is likely due to toxicity

and not   variability." WAC 173- 205- 020. WAC 173- 205- 100 provides that, in the event of a


failed WET test, if all four samples pass the follow-up WET tests mandated by WAC 173- 205-

0.90, " the toxicity   can    be   considered as    transient."   This language plainly contemplates that a

single, statistically significant failed WET test not deemed anomalous shows that a toxic

discharge   occurred.     In fact, the Department         concedes   in its brief that "[   t] ransient toxicity is not

anomalous or a `    fluke'     result" and   that "[ i] f the test was valid through the statistical review,


toxicity may be     present     in the   sample."
                                                      Br. of Resp' t Ecology at 7

          In his deposition testimony, Randall Marshall, the Department' s WET coordinator and

author of both the WET regulations at issue here and the Department' s NPDES permit writer' s


manual, confirmed that a statistically significant, failed WET test indicates that a toxic discharge

occurred:




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No. 45609 -5 -II



                     If we don' t find [ toxicity in the follow- up testing], we do not conclude that

          the toxicity was nonexistent in that first sample. If it was a good test and it passed
          everything, it most likely was a definite toxicity hit.

AR at 868. Although not a regulation, the permit writer' s manual confirms this view. The


manual     describes    one of      the   purposes of   WET testing   as "[   t] o assess and limit WET to levels


allowable under       the   state   Water     Quality   Standards."   AR   at   445. It   flatly   states   that "[ i] f there is


a   statistically   significant     difference in   response   between the ACEC ...           and the control, then



toxicity has been demonstrated." AR at 451.

          Thus, the Department effectively concedes, and its own regulations establish, that a failed

WET test demonstrates that a toxic discharge occurred. The applicable water quality standard,

WAC 173- 201A- 240( 1),             bluntly   states   that "[ t] oxic substances shall not be introduced above


natural background levels in waters of the state which have the potential either singularly or

cumulatively to ...         cause acute or chronic        toxicity ... as determined by the department."

Issuing a permit that allows BP to fail a WET test without violating the permit would allow the

introduction of toxic substances with the potential to cause acute toxicity in contradiction of this

standard. WAC 173- 201A- 240.6 Thus, the challenged permit condition allows discharges -

prohibited by law.

          The Board, as noted, deferred to the Department' s " determination that a single WET limit


exceedance does not indicate a pattern of toxicity, but is instead the trigger for a further process




6 We note that federal regulators treat the failure of a required WET test as a violation of NPDES
permits. See, e. g., City ofBroken Bow, Nebraska, CWA-07- 2009- 0077, 2009 WL 2943887, at
 6- 7, EPA July 2, 2009; City of Yankton, South Dakota, NPDES- SD- 0023396, 1993 WL 33325,
at *   9, EPA ALJ Jan. 21, 1993).             The Edison Electric court also contemplated that a single failed
WET test would constitute a permit violation and potentially subject the permittee to
enforcement action. 391 F. 3d at 1271.

                                                                Me
No. 45609- 5- I1



aimed at    determining      if, in fact, there is   a violation of   the   toxicity   standard."   AR at 1108.


Specifically, the Board ruled that

            t] he requirement for subsequent testing to determine whether or not there is a
           continued presence of toxicity, and allowance for the permittee to be in compliance
           with the Permit requirements while making this determination, is a valid exercise
           of Ecology' s permitting discretion.

AR at 1108. The regulations, however, do not require " a continued presence of toxicity" to

establish noncompliance with the narrative water quality standard. Nor do they say anything

about a " pattern of       toxicity." Instead, as shown, they clearly establish that a failed WET test

shows a violation of the acute toxicity standard, and therefore a violation of a maximum daily

permit limitation.


           The Board' s order deferring to the Department' s view that a single failed WET test does

not violate the permit is thus inconsistent with the Department' s own rules. Therefore, under the


Administrative Procedures Act, it merits reversal unless the Department " explains the


inconsistency by stating facts and reasons to demonstrate a rational basis for inconsistency."

RCW 34. 05. 570( 3)( h).


           This the Department fails to do. As already shown, the Department' s principal

justification, that a single WET test is too unreliable to show a toxic discharge, is belied by its

own rules.     Perhaps more to the point, Marshall admitted in his deposition that the regulations as


originally written did not contemplate that a permittee could remain in compliance despite a

statistically valid, failed WET test, and that he subsequently began writing permit conditions that

allowed for such failures because " it' s hard [ for industry] to comply" and " it encourages the

permittee    to   follow the   process ... [   r] ather than challenging the permit or the individual test

result."    AR    at   510- 11, 515, 519.   Allowing violations of water quality standards, especially for

the convenience of permittees and regulators, does not provide a rational basis for disregarding

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No. 45609 -5 -II



the plain language of the Department' s rules and is an abdication of its responsibility to

implement those rules.


         The Department' s interpretation of its rules and statutes is also inconsistent with its


responsibility   under      the State Environmental           Policy       Act ( SEPA), chapter 43. 21 C RCW. SEPA


 directs that, to the fullest        extent possible: (      1) The policies, regulations, and laws of the state of


Washington shall be interpreted and administered in accordance with the policies set forth in this


chapter."   RCW 43. 21C.030. Among those policies is the recognition of "the responsibilities of

each generation as         trustee   of   the   environment    for succeeding      generations,"    RCW


43. 21 C. 020( 2)(   a),   and the recognition that " each person has a fundamental and inalienable right


to a healthful environment and that each person has a responsibility to contribute to the

preservation and enhancement of                 the   environment."        RCW 43. 21C. 020( 3).     Although these


policies apply to the State generally, they speak with an insistent voice to the Department of

Ecology. See, e. g., RCW 43. 21A.010. By condoning violations of its own standards through

this permit, the Department has not acted in keeping with this trust.

B.       The Board' s Order Conflicts with. Governing Statutes and the Federal Regulatory Scheme

         Both federal and state statutes are definitive in prohibiting the discharge of toxic

pollutants into receiving waters. As discussed, one of the policies underlying the CWA is " that

the discharge    of   toxic     pollutants      in toxic   amounts    be   prohibited."   33 U. S. C. § 1251( a)( 3).


Consistently with this policy, the CWA prohibits " the discharge of any pollutant by any person,"

33 U. S. C. §   1311, except in conformity with federal and state water quality standards.

 Emphasis    added.)        A   state statute,    RCW 90. 48. 520 is         even more categorical,    stating that "[ i] n no


event shall the discharge of toxicants be allowed that would violate any water quality standard,

including   toxicant standards."            As noted above, a departmental rule, WAC 173- 205=070( 1)( c),




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No. 45609 -5 - II



plainly states that a failed WET test means that " the effluent has failed the test for compliance

with the whole effluent acute toxicity limit."

          Thus, a single failed WET test based on a statistically significant difference in survival

shows that a   discharge has   occurred   in   violation of   both federal   and state statutes.   In addition,


40 C. F. R. section 122.4 and RCW 90. 48. 520 each prohibit issuing NPDES permits that allow

violations of state water quality standards. Therefore, condition S7 contradicts applicable state

and federal statutes, as well as a federal rule. For these reasons also, the Board erred in


upholding condition S7 to the extent it provided that a single failed WET test did not violate the

permit.



C.        A Failed WET Test Result That the Department Determines To Be Anomalous Does Not
          Establish a Violation of Water Quality Standards

          The WET regulations provide for only one instance in which a failed WET test does not

indicate a. violation of the water quality standard: anomalous results. The WET regulations

specify that the Department " may determine any compliance test result to be anomalous ...

 and] notify a permittee to take another sample for toxicity testing because a compliance test

result was anomalous and could not be used to determine compliance in accordance with this


section."   WAC 173- 205- 090( e), ( f) e
                                        (mphasis       added).    Thus, a failed WET test result the


Department determines to be anomalous does not establish a violation of the narrative water


quality standard.


          This provision answers various arguments raised by BP and the Department. The

Department argues that the Board properly deferred to its interpretation of the WET regulations

because, due to the imprecision inherent in a test that relies on living organisms, a failed WET

test does not prove that a toxic discharge actually occurred. Part III A of our analysis above

shows that this position lacks an adequate factual basis and conflicts with the requirement that a



                                                        19
No. 45609 -5 -II



failed WET test be based on a statistically significant difference in mortality results. The

exclusion of anomalous results further supports the reliability of a single failed WET test.

             BP similarly contends that it is unfair, perhaps even unconstitutional, to base a permit

violation on a test that poses some risk of false positive results. Wash. Court of Appeals oral


argument,       Puget Soundkeeper              v.   Dep' t    of Ecology, No. 45609 -5 - II (March 31, 2015), at 34 min.


35    sec.   through 35       min.    35   sec. ( on   file   with court).       We disagree. The law does not demand


logical certainty before the Department may sanction a regulated party: the constitution entitles

even a criminal defendant only to proof of the charge beyond a reasonable doubt, a standard

short of the certainty BP demands. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L.

Ed. 2d 368 ( 1970).            In the civil setting, a simple preponderance is typically sufficient.

             BP' s statistical analysis, purporting to show a significant risk of false positive results,

fails to account for the likelihood that the Department will identify such errors as anomalies and

disregard them. In addition, the Department' s NPDES permit writer' s manual directly

contradicts BP' s statistical analysis. The manual notes that the " confidence level only

approximates the worst case. false positive rate which exists when the two values being compared

are   relatively      close   together,"      and "[   t]he further apart these values are, the less likely are false

positive results."          AR   at   451.    Thus, "    a confidence           level   of   95% does not mean that 1 in 20 ( 5%)


of   failed WET tests is         a    false   positive."       AR    at   451. Indeed, " if all of the organisms in the ACEC


die    and none       die in the     control,   the probability ... [           of] a false positive is closer to 0 than 1 in


20."     AR     at   451.   To reduce the risk of false positives, the manual advises including a provision

 rais[   ing]   the   confidence       level to 99%           when   the   differences in       response are small."   AR at 451


BP' s permit contains such a provision. Thus, BP plainly overstates the risk that it could

erroneously become subject to possible enforcement action.



                                                                           20
No. 45609 -5 - II



        The Edison Electric court noted that " WET tests will be wrong some of the time, which

is why EPA   warned against           using   a single   test   result   to institute   an action   for   a civil   penalty," but


nonetheless upheld the WET testing methods against an industry challenge. 391 F. 3d at 1272

 citing 67 Fed.   Reg.   at   69, 968).   The Edison Electric court clearly contemplated that a failed

WET test would constitute a permit violation, see 391 F. 3d at 1271; but rejected concerns similar


to BP' s, holding EPA' s statistical safeguards adequate to protect against arbitrary violations.

Edison Electric, 391 F. 3d       at   1273. Regardless, whether the Department should act on a permit


violation by seeking a civil penalty presents an entirely different question from whether a

violation has occurred in the first place. See Edison Electric, 391 F. 3d at 1272.


        We agree with the Edison Electric court that the WET tests provide sufficient certainty

that a toxic discharge has occurred. The WET rules as written adequately account for the

possibility of unreliable test results. Under the regulations' plain language, we hold that upon

failing a single WET test which the Department has not deemed anomalous, BP is in violation of

federal and state law, including state water quality standards.

                                                    CONCLUSION


        A single failed WET test, not deemed anomalous by the Department, shows that the

permittee has discharged toxic substances in violation of federal and state law, including state

water quality standards. NPDES permits must be consistent with applicable state and federal law

and must implement water quality standards set by state or federal statutes and regulations.

Therefore, the Board erred as a matter of law in ruling that condition S7 of BP' s NPDES permit

was valid to the extent it provided that a single failed WET test did not violate the permit.




                                                                 21
No. 45609 -5 -II



       We reverse the Board' s order and remand to the Department to revise the permit


condition to specify that a single failed WET test, not deemed anomalous by the Department,

establishes a violation of the NPDES permit.




                                                    B'. EGET   i.
                                                                C. J.

 We concur:




           I   it


     i4^            mr
 SUTTON, J.




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