Clean Water SoCal v. U.S. EPA

Opinion

----oo0oo---- CLEAN WATER SOCAL and CENTRAL No. 2:23-cv-01149 WBS JDP VALLEY CLEAN WATER ASSOCIATION, Plaintiffs, MEMORANDUM AND ORDER RE: v. PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and TOMAS TORRES, DIRECTOR, WATER DIVISION of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION IX, Defendants.

----oo0oo---- Plaintiffs Clean Water SoCal and Central Valley Clean Water Association (collectively “plaintiffs”) are trade associations with member agencies that own and operate wastewater treatment plants and water reclamation plants. (See Compl. ¶ 11 (Docket No. 1).) Plaintiffs seek declaratory and injunctive relief against defendants United States Environmental Protection Agency (“EPA”) and the EPA’s Director of the Water Division for Region IX, Tomas Torres (collectively “defendants”). (See generally Compl.) Plaintiffs allege that defendants’ approval of the California State Water Board’s (the “State Water Board”) new water quality standards (the “Toxicity Provisions”) violated the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 and 702 et seq., and the various statutes and regulations responsible for implementing the Clean Water Act, 33 U.S.C. § 1251 et seq. and 40 C.F.R. Part 131. (See generally Compl.) Specifically, plaintiffs challenge the EPA’s approval of the Toxicity Provision’s requirement that water toxicity testing be analyzed using a method of statistical analysis known as the Test of Significant Toxicity (“TST”). Before the court is plaintiffs’ motion for preliminary injunction.1 (Docket No. 15.) I. Background A. Statutory and Regulatory Framework “The Clean Water Act prohibits ‘the discharge of any pollutant by any person’ into the waters of the United States without a permit.” S. Cal. All. of Publicly Owned Treatment Works v. EPA (hereinafter “SoCal Works”), 8 F.4th 831, 834 (9th Cir. 2021) (quoting 33 U.S.C. § 1311(a)). The Clean Water Act allows the EPA “to delegate permitting responsibility to the States.” (SoCal Works, 8 F.4th at 834) (citing 33 U.S.C. § 1342(b)); see also 40 C.F.R. § 131.4(a) (“States . . . are 1 Plaintiffs request that the court take judicial notice of 11 documents, all of which are documents of public record. (See Reqs. for Judicial Notice (Docket Nos. 15-2, 30-2).) The court will grant plaintiffs’ request for judicial notice because matters of public record are not reasonably subject to dispute. See Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001). responsible for reviewing, establishing, and revising water quality standards”). As of 2021, California was one of 47 states to which the EPA had transferred permitting authority. SoCal Works, 8 F.4th at 834. EPA’s regulations require states to establish limitations on the amounts of pollutants that permitholders may discharge. See 40 C.F.R. § 131.11. “Pursuant to the Clean Water Act’s National Pollutant Discharge Elimination System [“NPDES”], 33 U.S.C. § 1342(a), states retain discretion, subject to EPA guidance and recommendations, to set their toxicity thresholds in order to compensate for local conditions at the permitting stage.” Edison Elec. Inst. v. EPA, 391 F.3d 1267, 1273-74 (D.C. Cir. 2004). Because a discharge can be toxic even when it complies with the EPA’s limitations on pollutants, “the EPA also requires certain permitholders to pass a test called a ‘whole effluent toxicity’ (WET) test.” SoCal Works, 8 F.4th at 834 (citing 40 C.F.R. § 122.44(d)(1)(iv)). A WET test “measures the aggregate effect of aquatic discharge on aquatic organisms . . . by exposing a test population of organisms to a discharge and counting how many die or become immobilized.” Id. (citing 60 Fed. Reg. 53, 529, 53, 532 (Oct. 16, 1996)); see also Edison Elec., 391 F.3d at 1272-73 (describing the WET test). Because toxicity “is not measurable as an absolute amount or concentration[,] . . . . the biological results of a WET test must be analyzed through a statistical approach.” (Vacano Decl., Ex. 1 (“EPA Approval”) at 21 (Docket No. 22-1).) EPA regulations list some methods of statistical analysis but expressly state that they are “not the only possible methods.” 67 Fed. Reg. 69964. B. The TST Method of Statistical Analysis In 2010, the EPA issued a new guidance document which “describe[ed] the TST as another statistical approach for permit writers to consider” when analyzing WET tests.2 (EPA Approval at 26-27.) “[B]ecause ‘not toxic’ does not have an inherent meaning, the application of the TST components is used to define what constitutes ‘not toxic’ and thus the desired condition of the water body.” (Id. at 24). Unlike previous statistical methods used to analyze WET tests, “TST presumes that a sample is toxic absent statistically significant evidence to the contrary.” SoCal Works, 8 F.4th at 835. The TST is not explicitly listed as a method of statistical analysis in the EPA regulations. C. Factual Background3

2 “EPA developed the TST to provide increased confidence in toxicity data assessment by controlling for specific types of errors that are typical in hypothesis testing.” (EPA Approval at 26.)

3 Plaintiffs have challenged the EPA’s approval of the TST twice before. In 2014, plaintiffs brought an action in this district challenging the EPA’s approval of California’s use of the TST as an “alternative test procedure” under 33 U.S.C. § 1314(h) and 40 C.F.R. §§ 136.3(a), 136.5. See S. Cal. All. of POTWs v. EPA, No. 2:14-cv-01513 MCE DB. The case was dismissed as moot after the EPA withdrew its approval. In 2016, plaintiffs brought another action in this district, this time alleging that the EPA violated both the APA’s notice-and-comment rulemaking procedures and the EPA’s own regulations by allowing the use of the TST when issuing permits. See S. Cal. All. of POTWs v. EPA, No. 2:16-cv-02960 MCE DB. The district court dismissed the case on the ground that it was barred by the APA’s statute of limitations. See id., 297 F. Supp. 3d 1060, 1073 (E.D. Cal. 2018) (England, J.). Plaintiffs appealed. In 2021, the Ninth Circuit affirmed dismissal, but on the alternative ground that the 2010 guidance involving the TST was not a final agency action because it did not impose any legal consequences. SoCal Works, 8 F.4th at 836. In October 2021, the State Water Board adopted the state’s revised regulations regarding water toxicity, known as the Toxicity Provisions. (Compl. ¶ 7.) The Toxicity Provisions require that aquatic toxicity test data be analyzed using the TST. (EPA Approval at 13.) On April 25, 2022, the Toxicity Provisions were formally approved by the State, thereby becoming state law. (EPA Approval at 20; Mot. at 15.) Two days later, the State Water Board submitted the Toxicity Provisions to defendants for review and approval, as is required by the Clean Water Act, 33 U.S.C. § 1313(c).4 (Opp’n at 8.) On May 1, 2023, defendants issued final approval of the Toxicity Provisions. (Compl. ¶ 8; see generally EPA Approval.) As a result of defendants’ approval, the Toxicity Provisions’ requirement that the TST be used to analyze WET tests became effective under the Clean Water Act. See 40 C.F.R. § 131.21(c). Subsequently, on May 22, 2023, plaintiffs filed their Complaint and, a few weeks later, moved for a preliminary injunction.5 As explained above, plaintiffs allege that defendants’ approval of the Toxicity Provisions’ new requirement that water toxicity testing be analyzed using the TST was arbitrary and

4 Once a state submits its new or revised water quality standards, the EPA has 60 days to approve the standards or 90 days to disapprove the standards. 40 C.F.R. § 131.21.

5 In July 2022, plaintiffs (and others) filed a similar case in state court, challenging California’s adoption of the Toxicity Provisions. (Mot. at 15; Camarillo Sanitary Dist. v. State Water Res. Control Bd., No. 22CECG02195 (Fresno Sup. Ct.).) In May 2023, the state court denied plaintiffs’ ex parte application for a TRO or stay. (See Opp’n at 9.) The hearing on the merits in that case was scheduled for June 23, 2023. (Mot. at 15). There is nothing before this court to provide the status of that action. capricious, in violation of the APA. (See generally Compl.) II. Discussion “[I]njunctive relief [i]s an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, the moving party must establish (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. Id. at 20; Humane Society of the U.S. v. Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009). “A plaintiff must make a showing on all four prongs to obtain a preliminary injunction.” A Woman’s Friend Pregnancy Res. Clinic v. Becerra, 901 F.3d 1166, 1167 (9th Cir. 2018) (emphasis in original) (quotation marks and citations omitted). A. Likelihood of Irreparable Harm “[A] preliminary injunction will not be issued simply to prevent the possibility of some remote future injury.” Winter, 555 U.S. at 21. “A threat of irreparable harm is sufficiently immediate to warrant preliminary injunctive relief if the plaintiff ‘is likely to suffer irreparable harm before a decision on the merits can be rendered.’” Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1023 (9th Cir. 2016) (quoting Winter, 555 U.S. at 22). “Speculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction.” Id. Both sides agree that this matter may be presented to the court for final decision upon briefs as soon as the administrative record is prepared, and government counsel represented that it would take approximately 30 days for the EPA to assemble and produce the administrative record. The parties thus estimated that it should only take about 60 to 90 days before the court could hear this case on the merits. Plaintiffs argue that their members will be irreparably harmed because they: (1) “will be subject to enforcement, civil (and potentially criminal) penalties, and citizen suits for failure to comply with new water quality standards; and (2) will “be subject to economic harm, as they will now be required to undertake more costly and burdensome toxicity testing requirements.” (Mot. at 26.) However, plaintiffs provide no tangible evidence that any civil enforcement actions or criminal penalties are likely to occur in the short time before the court can issue a decision on the merits. See Boardman, 822 F.3d at 1023 (plaintiff must demonstrate likelihood of suffering irreparable harm “before a decision on the merits can be rendered”) (citation and quotation omitted). Both the State Water Board and its regional counterparts have been issuing permits which require the TST since at least 2012. (See Mitschele Decl. ¶ 3 (Docket No. 22- 3).) As of April 30, 2023, at least 190 effective NPDES permits have been issued that require the TST. Id. ¶ 4. Absent a showing that criminal or civil actions are imminent or likely to occur, any harm is speculative and not immediate. Moreover, “economic injury alone does not support a finding of irreparable harm, because such injury can be remedied by a damage award.” Rent-A-Ctr., Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) (citation omitted).6 For the foregoing reasons, plaintiffs have failed to demonstrate the likelihood of irreparable harm before the court can issue a decision on the merits, and for that reason alone the court would be required to deny their request for a preliminary injunction. B. Likelihood of Success on the Merits Even assuming plaintiffs were able to show a likelihood of irreparable harm, they nonetheless fail to show a likelihood of success on the merits. “Section 706(2)(A) of the APA requires a reviewing court to uphold agency action unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 994 (9th Cir. 2014) (quoting 5 U.S.C. § 706(2)(A)). “‘The court’s responsibility is narrow[]: to determine whether the’ agency complied with the procedural requirements of the APA.” Id. (quoting River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010)). A court will therefore “‘sustain an agency action if the agency has articulated a rational connection between the facts found and the conclusions made.’” Id. (quoting Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th

6 Even if economic harm could support a finding of irreparable harm, plaintiffs do not provide any evidence in support of their conclusory allegations that their costs will increase. While plaintiffs don’t need to provide the exact costs they expect to incur, the court expects more than the vague generalizations presented here. Cir. 2005). “[T]raditional deference to the agency is at its highest where a court is reviewing an agency action that required a high level of technical expertise.” Id. (citing Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 377 (1989)) (additional citation omitted); see Edison Elec., 391 F.3d at 1270 (a court must give deference to the EPA “when it evaluates ‘scientific data within its technical expertise.’”) (quoting City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C. Cir. 2003)). As explained above, plaintiffs challenge defendants’ approval of the State Water Board’s requirement of the TST. “States have the primary role, under § 303 of the [Clean Water Act], 33 U.S.C. § 1313, in establishing water quality standards. EPA’s sole function, in this respect, is to review those standards for approval.” Am. Wildlands v. Browner, 260 F.3d 1192, 1194 (10th Cir. 2001) (citations and internal quotations omitted); see also 33 U.S.C. § 1251(b) (“It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution . . . .”). Thus, the EPA’s role in approving state water quality standards “is limited.” See id.; see also NRDC v. EPA, 16 F.3d 1395, 1399 (4th Cir. 1993) (“EPA sits in a reviewing capacity of the state-implemented standards, with approval and rejection powers only.”); Barnum Timber Co. v. EPA, 835 F. Supp. 2d 773, 780-81 (N.D. Cal. 2011) (the Ninth Circuit “has taken a similar position” to NRDC “with respect to a state’s role in the process”) (citing City of Arcadia v. EPA, 411 F.3d 1103, 1106 (9th Cir. 2005)) (section 1313 is “consistent with the basic goals and policies that underlie the Clean Water Act -- namely, that states remain at the front line in combatting pollution”). Under 40 C.F.R. § 131.5(a), the EPA must consider eight factors when reviewing a state’s adopted water quality standards. Here, plaintiffs claim defendants’ approval of the TST, as mandated by the Toxicity Provisions, was arbitrary and capricious because defendants’ review failed to consider two factors: (1) applicable legal procedures; and (2) sound scientific rationale. (See generally Mot.) Below, the court will first address whether the State Water Board followed applicable legal procedures before addressing whether the State Water Board’s criteria was based on sound scientific rationale. 1. Applicable Legal Procedures Under 40 C.F.R. § 131.5(a)(6), defendants must consider “[w]hether [California] has followed applicable legal procedures for revising or adopting standards.” Plaintiffs argue that defendants’ review did not comply with 40 C.F.R. § 131.5(a)(6) because: (1) defendants “failed to . . . confirm that the State Water Board followed appropriate legal procedures when drafting the Toxicity Provisions”; and (2) “the State Water Board abused its rulemaking discretion when it drafted the Toxicity Provisions relying on EPA guidance rather than final, promulgated rules.” (Mot. at 23.) On the record before the court, both arguments are without merit. First, as described in the EPA Approval, “California’s development of its new [water quality standards] regarding toxicity included opportunities for public input at more than three dozen meetings throughout the State since 2012. California solicited public comments and prepared responses to those comments on October 26, 2018; July 22, 2020; and September 30, 2021.” (EPA Approval at 20.) Further, the California Attorney General certified that the Toxicity Provisions were adopted pursuant to California law. (Id.) Second, although EPA regulations do not list the TST as a method of statistical analysis, the regulations expressly provide that the listed methods are “not the only possible methods of statistical analysis.” 67 Fed. Reg. 69964. Moreover, the State Water Board’s reliance on the EPA’s non-binding guidance is precisely how states are supposed to revise their water quality standards. See Sanitary Bd. of City of Charleston, W.Va. v. Wheeler, 918 F.3d 324, 328 (4th Cir. 2019) (“Apart from its oversight and approval role, the EPA also develops guidance . . . which states in turn rely on in evaluating and updating their standards.”). The only thing plaintiffs point to as evidence that the State Water Board did not follow applicable legal procedures is its decision to rely on EPA guidance documents, as opposed to promulgated rules, when adopting the TST as the required method of statistical analysis for WET tests. However, as discussed above, it was well within the State Water Board’s discretion to do rely on EPA guidance documents. The court therefore finds nothing in the record which would suggest that the State Water Board did not follow the applicable legal procedures when adopting the Toxicity Provisions. For the foregoing reasons, the court finds defendants followed applicable legal procedures when they approved the Toxicity Provisions. 2. Sound Scientific Rationale Under 40 C.F.R. § 131.5(a)(2), defendants must consider “[w]hether [California] has adopted criteria that protect the designated water uses based on sound scientific rationale consistent with § 131.11.” In their approval of the Toxicity Provisions, defendants explained that they “considered the scientific justification included in the submittal supporting document and also reviewed EPA Technical Documents and additional peer- reviewed science.” (EPA Approval at 26.) The peer-reviewed literature describes that the TST “provides greater confidence that truly non-toxic water samples are identified as non-toxic and truly toxic water samples are identified as toxic,” “reduces the likelihood of missing true toxicity when it occurs (false negative), and “reduces the likelihood of declaring a sample toxic when there is a biologically insignificant effect (false positive result).” (Id. at 27.) Defendants also explained that the type of hypothesis testing upon which the TST is based “has long been used in many contexts, from evaluating clinical trials of pharmaceutical products, to evaluating the attainment of soil cleanup standards from contaminated sites, to evaluating the effects of pesticides in experimental ponds.” (Id. at 26.) Conversely, plaintiffs argue that the TST does not constitute sound scientific rationale because TST test results differ from promulgated testing methods and “can have a false indication of toxicity rate of over 50 percent.” (Compl. ¶ 61; Mot. at 21.) Plaintiffs do not cite any technical study or peer- reviewed research in support of this position in either their Complaint or Motion. In their Reply, plaintiffs cite a white paper (the “CASA White Paper”), which they contend shows that the TST has a high risk of false positives. (Reply at 11; see Hamilton Decl., Ex. A (“CASA White Paper”) (Docket No. 30-1).) However, as defendants correctly point out, the CASA White Paper is not a peer-reviewed study and focuses on only one of the many aquatic toxicity test methods approved under EPA regulations. (See Surreply at 4-5 (Docket No. 33).) Further, the CASA White Paper was submitted to the State Water Board by an interested party (the California Association of Sanitation Agencies) during the notice and comment for the Toxicity Provisions. (See generally CASA White Paper.) Plaintiffs also argue that “[s]tandards where the water is presumed to be toxic cannot logically protect the aquatic life uses -- they would all be dead.” (Mot. at 21.) This argument is nonsensical. The TST is a method of statistical analysis. The TST uses a null hypothesis that the sample water is toxic. (Id. at 27.) The TST method’s presumption of toxicity is an analytical hypothesis, not a factual statement that all water is in fact toxic. Moreover, it does not follow that an analytical hypothesis which presumes water toxicity means that all aquatic life is dead. There is nothing in the EPA Approval to support the claim that the TST, as adopted in the Toxicity Provisions, is not based on “sound scientific rationale.” Cf. San Luis, 776 F.3d at 9940 (“[T]raditional deference to the agency is at its highest where a court is reviewing an agency action that required a high ee IIE IED REI I EOE IIE IN IES II IO

level of technical expertise.”); Ctr. for Regul. Reasonableness 2] v. EPA, No. 16-cv-1435, 2019 WL 1440303, at *10 (D. D.C. Mar. 31, 2019) (describing a case involving EPA’s approval of a state’s water quality criteria as “a classic example of a case warranting deference to EPA on scientific and technical matters within its sphere of expertise”). Therefore, on the record before the court, defendants properly considered whether California’s adoption of the TST was based on sound scientific rationale. For the foregoing reasons, the court finds that defendants reviewed the Toxicity Provisions consistent with 40 C.F.R. § 131.5(a). Defendants’ approval of the Toxicity Provisions was therefore not arbitrary and capricious. See 5 U.S.C. §$ 706(2) (A). Because plaintiffs have failed to show that they are likely to suffer irreparable harm or are likely to succeed on the merits, plaintiffs’ motion for a preliminary injunction must be denied. See A Woman’s Friend Pregnancy Res. Clinic, 901 F.3d at 1167 (plaintiffs “must make a showing on all four prongs to obtain a preliminary injunction”) (quotation marks and citations omitted) . IT IS THEREFORE ORDERED that plaintiffs’ motion for preliminary injunction (Docket No. 15) be, and the same hereby is, DENIED. . : ak. ah thea (LA. Dated: August 7, 2023 WILLIAMB.SHUBB © UNITED STATES DISTRICT JUDGE 14