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EPA WHOLE EFFLUENT TOXICITY TEST ATTACKED AS VIOLATING DUE PROCESS
Date: February 9, 2004 -
Several groups representing municipal dischargers are mounting a legal challenge
against EPA's testing methods for whole effluent toxicity (WET), arguing the
test methodology deprives dischargers of "due process" under the law and
violates the rulemaking process established by the Administrative Procedure Act
(APA).
In a brief filed Jan. 30 in the U.S. Court of Appeals for the District of
Columbia Circuit, a coalition of dischargers urges the court to overturn EPA's
November 2002 final rule modifying testing methods for WET because the
variability inherent in the test deprives dischargers of due process guaranteed
by the Fifth Amendment to the Constitution.
The petitioners further argue that EPA's action in using the WET test is
"arbitrary and capricious" and thereby violates the APA because there is
insufficient evidence in the administrative record to show the test is valid.
The brief is available on InsideEPA.com.
At issue is an EPA rule, promulgated in November 2002, which revamps the
methodology for WET testing. The testing assesses discharges from treatment
works and other sources with National Pollutant Discharge Elimination System (NPDES)
permits to measure toxicity to aquatic life, such as minnows. The new rule
includes, among other changes, alterations in how labs should address shifts in
the acidity of collected samples.
The new WET testing methodology rule stems from a 1998 settlement agreement in
Edison Electric Institute, et al. v. U.S. EPA challenging an earlier WET testing
methodology on the basis that the test was too variable and was causing
facilities to fail 20 percent of the time, even if the level of toxics in the
effluent had not changed.
The petitioners in the case include the Association of Metropolitan Sewerage
Agencies, the Western Coalition of Arid States, several municipal wastewater
agencies, and the WET Coalition, which includes Edison Electric Institute and
the American Forest and Paper Association,
The petitioners argue in the brief that the WET test deprives dischargers of due
process under the law because the variability makes it impossible to determine
when a permit toxicity limit is exceeded, and permittees would routinely be
subjected to arbitrary enforcement. In addition, the WET test is based on an "irrebuttable
presumption of accuracy" that petitioners say cannot be justified by the
rulemaking record. EPA's rule requires POTWs to certify that WET tests are
accurate, while EPA has said their accuracy cannot be determined.
The groups further argue that the tests violate APA because there is inadequate
basis for the test in the administrative record, and that the agency failed to
follow proper rulemaking procedures and respond meaningfully to objections
raised by commenters. Specifically, the petitioners say in the brief that
despite the terms of a voluntary settlement agreement, EPA did not follow
criteria in its 1998 report to Congress on establishing a scientific basis for
the rule and, instead “constructed unsupported explanations of its actions,
all in an attempt to ratify WET procedures that are not reliable.
As a result of the concerns petitioners raised about the WET test, they request
that the court require EPA to specify under which conditions a WET test should
be used, and what safeguards should be used with it.
Petitioners also ask the court to direct EPA to state the limitations of the
test and to specify that it should not be used to measure compliance with permit
limits until the agency completes a validation of the efficacy of the test.
An AMSA source says an oral argument for the case has not yet been scheduled.
The next step in the process is for EPA to file its reply brief, which likely
will explain the agency's view of the validity of the WET test.