AMSA Legal Alert (Leg 04-11)

On December 10, the U.S. Court of Appeals for the District of Columbia Circuit (court) upheld the U.S. Environmental Protection Agency’s (EPA’s) chronic whole effluent toxicity (WET) test methods. Edison Electric Institute (EEI) v. EPA, No. 96-1062. Agreeing with AMSA and the other challengers to the methods that the “ratified WET tests are not without their flaws,” the court held that “perfection is not the standard against which we judge agency action.” Opinion at 13. The court found that overall, EPA’s chronic WET test methods were informed by science, negotiation, and public comment, and were subject to deference as EPA’s expert judgment on the implementation of the Clean Water Act (CWA).

While the methods were not vacated as AMSA and other challengers sought – a high bar to achieve given the technical nature of the WET test methods – the court opinion contains several statements that should be helpful to AMSA members across the nation on WET issues:

• The court warns against using single WET test failures to bring enforcement actions;
• The court leaves the door open for agencies to question WET tests results, stating that nothing “forecloses consideration of the validity of a particular test result in an enforcement action” and that the “decision does not endorse the validity of any test result in the future”;
• The court emphasizes that states have the discretion to set toxicity thresholds to compensate for local conditions at the permitting stage, which can mitigate the fact that the correlation between laboratory toxicity and in-stream impacts is weaker at low levels of toxicity; and
• Individual dischargers can challenge their permits on a case-by-case basis if they believe local authorities are regulating at a level that poses only a minimal risk to aquatic life.

This Alert summarizes the decision and its implications for AMSA members. A copy of the decision is available in the Litigation Tracking section of AMSA’s Member Pipeline. As always, please feel free to contact AMSA’s General Counsel Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org with any questions.

I. Case Background

EPA promulgated the first federal WET test methods in 1995, which use microorganisms to measure the level of overall toxicity in industrial and municipal effluents. 60 Fed. Reg. 53,539 (Oct. 16, 1995). Litigation was immediately filed by many groups including AMSA, who asserted that numerous deficiencies in the WET methods made them unreliable for use in CWA permitting and enforcement. Following several years of negotiation, EPA agreed under a 1998 Settlement Agreement to publish a technical correction notice, method guidance, and variability guidance documents; conduct an interlaboratory variability study and publish a peer-reviewed report on the study; address pathogen contamination; propose specific technical method changes; and ratify or withdraw test methods evaluated in the study. In the ensuing years, AMSA and other groups worked with EPA on the methods, continued to flag their shortcomings, and even assisted in identifying participants for the interlaboratory study.

EPA promulgated the new WET methods in 2002. 67 Fed. Reg. 69,952 (Nov. 19, 2002). AMSA and other groups quickly observed that significant flaws in the WET methods remained, including:

• EPA’s failure to establish data quality objectives for minimum acceptable accuracy and to account for background interference in the WET testing environment;
• EPA’s inability to ensure consistent WET test results between and within laboratories and the absence of a correlation between WET test performance in the lab and actual in-stream toxicity; and
• An unacceptable level of variation in the methods’ output in low-toxicity environments.

A second round of litigation began, involving AMSA and many other challengers ^[1]. In our briefs, we asserted that the WET methods remain too unreliable for use in CWA permitting and enforcement context. In a strategic effort to streamline the complex scientific issues in the case, the new litigation focused on the four WET test methods that measure non-lethal chronic toxicity (e.g., growth and reproduction) – where variability and inconsistent results were most common – and did not raise shortcomings in the methods for measuring acute toxicity (mortality).

II. Highlights of the Decision

The court’s December 10 opinion recognizes at the start the inherent complexity of WET tests, noting that “the use of living specimens introduces a significant potential for variability between and within tests.” Id. at 3. The court, however, finds that EPA adequately minimized the “effect of organic idiosyncracy” in designing and refining the WET test methods. Id. Specifically, the court finds that EPA data show that the WET test methods “exhibit a degree of precision compatible with numerous chemical-specific tests already in use.” Id. at 7. While the panel agreed with AMSA and others that multiple WET tests “will exhibit some degree of variation,” the court found the level of variation acceptable. Id. at 9.

The court then, however, provides very helpful guidance to AMSA member agencies and other permitees that may have a WET violation alleged in a subsequent enforcement proceeding. Concurring with AMSA and others that WET tests “will be wrong some of the time,” the court highlights EPA’s own warning “against using a single test result to institute an action for a civil penalty.” Id. The court goes on to state that its opinion does not foreclose “consideration of the validity of a particular test result in an enforcement action,” does not “endorse the validity of any test result in the future,” and does not “foreclose a defense that the result is wrong.” Id.; see also note 5. Finding that the validity of individual WET test results was not an issue before it at this time, the court leaves the door open for agencies to argue in site-specific cases that particular WET test results are incorrect or unreliable.

The court goes on to find that detection limits are required only in instrumental test methods, and that EPA’s WET methods sufficiently account for “background noise” in the testing environment. Id. at 10-11. Rejecting our argument that insufficient laboratories exist to conduct reliable WET tests, the court notes that EPA withdrew certain WET methods when too few laboratories were available to validate them. The court also rejects our challenge to EPA’s use of peer-review, noting that the Agency responded point-by-point to peer comments in the final WET rules.

Finally, the court rejects our assertion that the WET tests performed in the lab do not sufficiently reflect in-stream conditions. In this discussion, however, the court again offers helpful guidance to permittees. Noting that “EPA took the sensible approach of relying on sampling techniques to draw general conclusions, while leaving some implementation details to local entities,” the court emphasizes that states can set toxicity thresholds in permits to compensate for local conditions. Id. at 12. The court finds that discretion at the state level should mitigate long-standing concerns that the correlation between laboratory toxicity and in-stream impacts grows weaker at lower levels of toxicity. Id. The discretion left to states also leads the court to reject the suggestion that the WET program is a federal water quality standard (WQS). Id. This again is a helpful finding for permittees in those states that have refused to take local conditions into account in translating narrative WQS to permit limits, and have been using EPA’s one chronic toxicity unit (TU_c) as a default WQS for all waterbodies in the state. In closing, the court reiterates that “individual dischargers remain free to challenge their permits, on a case-by-case basis, if they believe that local authorities are regulating at a level that poses only a minimal risk to aquatic life.” Id. at 13.

III. Effect of the Decision

The court’s decision clearly ratifies EPA’s development of the WET test methods, but does not prejudge how individual WET test results will be handled at the state level or how WET limits will be incorporated into permits in the future. Public agencies can use this opinion to urge state permitting authorities to take into account local conditions, such as flow, seasonal variability, and even how individual test failures should be handled. AMSA has long advocated that a single WET test failure should trigger additional study and further testing, but in and of itself is not grounds for enforcement or penalties. The court seems to clearly agree with our position on this important issue.

EPA also is poised to issue a draft WET implementation guidance document. AMSA will be working with our members to review the draft and to provide comments on how WET tests should be used in permitting and enforcement.

Finally, there is some discussion about seeking rehearing of this case before a full panel of the D.C. Circuit due to several errors in the court’s opinion, particularly the court’s determination that mathematical calculations included in the AMSA and other challengers’ briefs to document significant WET test variability were wrong. See id. at 7. Petitions for rehearing are due January 24, 2005. While the grant of a rehearing is rare, we will keep the members apprised of further developments in this regard.

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^[1] The challenging groups included EEI, the WET Coalition (comprising several industrial trade groups), the Western Coalition of Arid States (WESTCAS), and an AMSA-led municipal coalition including the California Association of Sanitation Agencies, the Maryland Association of Municipal Wastewater Agencies, the South Carolina Water Quality Association, the Texas Association of Metropolitan Sewerage Agencies, the Virginia Association of Municipal Wastewater Agencies, and the West Virginia Municipal Water Quality Association.