Filed Washington State Court of Appeals Division Two
December 14, 2021 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II NORTHWEST PULP & PAPER No. 55164-1-II ASSOCIATION; THE ASSOCIATION OF WASHINGTON BUSINESS; AND WASHINGTON FARM BUREAU,
Appellants,
v.
STATE OF WASHINGTON, DEPARTMENT PUBLISHED OPINION OF ECOLOGY,
Respondent.
GLASGOW, A.C.J.—In July 2018, the Department of Ecology added a new section, chapter
6, section 4.5 (Section 4.5), to its Water Quality Program Permit Writer’s Manual to specifically
address the release of polychlorinated biphenyls (PCBs) into Washington’s surface waters. To
identify and measure the presence of PCBs in surface waters, Section 4.5 allows the use of testing
Methods 1668C and 8082A, which are particularly sensitive, in addition to Method 608.3, the
method expressly authorized in federal regulation.
Northwest Pulp & Paper Association, Association of Washington Business, and
Washington Farm Bureau (hereinafter collectively referred to as Northwest Pulp & Paper)
petitioned for judicial review and declaratory judgment under the Washington Administrative
Procedure Act (APA), chapter 34.05 RCW, asking the superior court to invalidate Section 4.5.
Northwest Pulp & Paper argued Section 4.5 is an invalid rule under the APA because Ecology No. 55164-1-II
failed to comply with the procedural requirements for rule making, Ecology exceeded its authority,
and the section is arbitrary and capricious. The superior court dismissed the petition and denied
the request for declaratory judgment, concluding that Section 4.5 is not a rule under the APA.
We hold Section 4.5 is guidance for agency staff, not a rule subject to the APA’s rule-
making requirements. We affirm.
BACKGROUND
I. PCBS, POLLUTANT DISCHARGE PERMITS, AND STATE WATER QUALITY
“Banned since the 1970s, PCBs are manufactured toxic chemicals that persist in the
environment and are capable of bioaccumulation and biomagnification: they increase in
concentration in individual organisms and with each successive level of the food chain.” Puget
Soundkeeper All. v. Dep’t of Ecology, 191 Wn.2d 631, 635, 424 P.3d 1173 (2018) (Seattle Iron &
Metals). Some PCBs are likely carcinogens that are harmful to humans.
The federal Clean Water Act (also known as the Federal Water Pollution Control Act), 33
U.S.C. §§ 1251-1388, seeks “to restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters” by regulating the discharge of pollutants, including PCBs. 33
U.S.C. § 1251(a); 40 C.F.R. § 129.4(f). Under the Clean Water Act, it is unlawful to discharge any
pollutant into the water unless the discharger has applied for and received a National Pollutant
Discharge Elimination System (NPDES) permit. 33 U.S.C. §§ 1311(a), 1342(a)(1). In Washington,
responsibility for controlling state water pollution and administering the NPDES permit program
is delegated to Ecology. 33 U.S.C. § 1342(b); RCW 90.48.260(1).
Ecology has established state water quality standards to protect surface waters in
Washington. See chapter 173-201A WAC. Water quality standards set contaminant concentration
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limits in surface water, ground water, and sediment, for example. These standards include both
narrative and numeric criteria. WAC 173-201A-010(1)(a). Washington’s narrative standard for
toxic substances provides, “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 biota
dependent upon those waters, or adversely affect public health.” WAC 173-201A-240(1).
Initially, Washington’s numeric standards for toxic substances included acute and chronic
criteria for freshwater and marine water to protect aquatic life. Ecology has since promulgated a
rule that added numeric criteria to protect human health. One numeric criterion for protecting
human health currently provides that the total PCBs in a body of surface water should be limited
to 0.00017 μg/L (micrograms per liter). WAC 173-201A-240(5) tbl.240.
II. MANAGING PCB POLLUTION
A. Effluent Limits and Best Management Practices
If a discharger violates or has the “reasonable potential” to violate water quality standards
by discharging a particular pollutant, then the discharger’s NPDES permit must contain effluent
limitations for that pollutant. 40 C.F.R. § 122.44(d)(1)(iii). An “effluent limitation” is “any
restriction . . . on quantities, rates, and concentrations of chemical, physical, biological, and other
constituents which are discharged from point sources into surface waters of the state.” WAC 173-
220-030(9). Effluent limitations may be technology based, meaning they are “based on the
capability of a treatment method to reduce the pollutant to a certain concentration.” Administrative
Record (AR) at 0164.0029. They may also be water quality based, meaning they are based on
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limiting the concentration of effluent “such that it will not cause a violation of water quality
standards.” AR at 0164.0030.
The legislature has required, “In no event shall the discharge of toxicants be allowed that
would violate any water quality standard.” RCW 90.48.520. NPDES permits “must be conditioned
so the discharges authorized will meet the water quality standards. No waste discharge permit can
be issued that causes or contributes to a violation of water quality criteria.” WAC 173-201A-
510(1). The policy goal of prohibiting any and all violations of state water quality standards
remains difficult to attain in practice, however. “Ecology sets maximum effluent limits for certain
pollutants at numbers presently undetectable and unquantifiable in order to encourage scientific
progress toward the goal of cleaner and safer water.” Seattle Iron & Metals, 191 Wn.2d at 643.
In addition to effluent limitations, a permit may require the discharger to use best
management practices to prevent the discharge of pollutants. Best management practices may
include specific treatment requirements, maintenance and operating procedures, or strategies to
control runoff, leaks, and spillage. 40 C.F.R. § 122.2. Permits may require dischargers to comply
with narrative conditions that “complement numeric limits,” such as requirements to “study the
efficiency of the treatment system” or to “develop a plan to identify and implement pollution
prevention that is technically and economically achievable.” Puget Soundkeepers All. v. Dep’t of
Ecology, 102 Wn. App. 783, 794-95, 9 P.3d 892 (2000).
Ecology’s Water Quality Program recommended a new permitting approach for PCBs in
2016 that “requires dischargers to use improved detection methods to find PCBs in waste streams”
and to use updated best management practices, based on guidance from the Environmental
Protection Agency (EPA) and “on-the-ground experience,” to prevent PCB pollution. AR at
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0843.0001. The recommended changes were to the methods for detecting PCBs, not PCB effluent
limits. However, the program recognized that these changes will “have eventual ramifications to
all water quality permittees with PCB limits” because more sensitive methods of monitoring will
“turn up previously unseen PCBs in discharges,” which “could drive new permit limits and
violations.” AR at 0843.0001, .0003.
B. Test Methods for Detecting PCBs
Congress tasked the EPA with “promulgat[ing] guidelines establishing test procedures for
the analysis of pollutants.” 33 U.S.C. § 1314(h); 40 C.F.R. § 122.2. Those test methods are
established in 40 C.F.R. part 136. Currently, the only test method for measuring PCBs that is
approved under part 136 is Method 608.3. 40 C.F.R. § 136.3, tbl.IC.1 The description of Method
608.3 in appendix A of part 136 explains that the “EPA has promulgated this method . . . for use
in wastewater compliance monitoring under the [NPDES]” permitting system. 40 C.F.R. Pt. 136,
App. A, Method 608.3, at 1.6.1.
Yet, as Ecology explains in its Permit Writer’s Manual, surface water quality standards to
protect aquatic life and human health are set at levels lower than Method 608.3 is able to detect
and quantify. Method 608.3 is able to reliably detect a concentration of 0.065 micrograms of PCBs
per liter of water. This means water could contain approximately 382 times more PCBs than the
state numeric criterion necessary to protect human health of 0.00017 μg/L, yet the PCBs would
1 Table IC references both Method 608.3 and Method 625.1. Method 608.3 is specifically “for determination of organochlorine pesticides and [PCBs] in industrial discharges and other environmental samples,” whereas Method 625.1 is more generally “for determination of semivolatile organic pollutants in industrial discharges and other environmental samples.” 40 C.F.R. Pt. 136, App. A, Method 608.3, at 1.1, Method 625.1, at 1.1. The description of Method 625.1 clarifies that “Method 608.3 should be used for determination of pesticides and PCBs.” 40 C.F.R. Pt. 136, App. A, Method 625.1, at 1.4.
5 No. 55164-1-II
not be detectable using Method 608.3. Cf. Seattle Iron & Metals, 191 Wn.2d at 638 (addressing an
argument that monitoring using Method 608 (a precursor to Method 608.3) was insufficient
because “the test cannot ensure a permit holder complies with statutory water quality standards”).
Two testing methods exist for measuring PCBs that are more sensitive. Methods 8082A
and 1668C “provide lower analytical limits” than Method 608.3. AR at 0164.0250. Although
Method 608.3 is the only method that can be used under 40 C.F.R. part 136 to determine
compliance with numeric effluent limits, Methods 8082A and 1668C may be used for purposes
other than determining compliance.
For example, Method 1668C can be used for “monitoring of final effluents for PCB
congeners.” AR at 0277.0028; see also 40 C.F.R. Pt. 136, App. A, Method 608.3, at 1.5 (“Method
1668C . . . may be useful for determination of PCBs as individual chlorinated biphenyl congeners,”
although Method 1668C has “not been approved for use at 40 [C.F.R.] part 136.”). PCBs consist
of “209 individual compounds known as congeners.” AR at 0922.0004. Mixtures of these
compounds were commercially produced, and the mixtures are known by their trade names, most
commonly Aroclor. Water quality based effluent limits consider the concentration of total PCBs
in the water, and Method 608.3, the part 136-approved method for analyzing PCBs, measures the
total concentration of Aroclors in the water. In contrast, Method 1668C is a “very sensitive
analytical method that has the capability of detecting 209 different PCB congeners.” AR at
0164.0254. The EPA has explained that because there is no part 136-approved method for
measuring individual congeners, Ecology has “flexibility to require the use of EPA Method 1668C
for monitoring of PCB congeners.” AR at 0277.0028.
6 No. 55164-1-II
III. SECTION 4.5 OF THE PERMIT WRITER’S MANUAL
In 2018, Ecology issued a revised version of its Permit Writer’s Manual. A cover letter
from the Water Quality Program Manager states that this Manual “describes Ecology’s procedures
when issuing permits for wastewater discharges. Permit writers are required to use the procedures
in this manual for developing permits.” AR at 0164.0004. However, “[i]f a permit writer believes
a permitting situation requires a different process than in the manual, the permit writer should
discuss the alternative process with their supervisor.” AR at 0164.0004.
The Manual’s “Note to Readers” describes it as “a working document for people at
[Ecology] who write wastewater discharge permits,” and the Manual’s introduction similarly
classifies it as “a technical guidance and policy manual for permit writers” that aims “to enhance
the quality and consistency of the wastewater discharge permits issued by Ecology and to improve
the efficiency of the permitting process.” AR at 0164.0017, .0031 (boldface omitted). The
introduction clarifies that the Manual “is not regulation and should not be cited as regulatory
authority for any permit condition.” AR at 0164.0033. Rather, the Manual “describes law and
regulation pertaining to permitting,” which “must be followed to issue a legal permit.” Id. “Where
those laws and regulations are not explicit on implementation the manual describes a process for
implementation” that has been developed by Ecology, but “[i]f the process does not fit a permitting
circumstance, the permit writer can explore alternative processes as long as the law and regulation
are met.” Id. Permit writers are expected to “exercise a considerable amount of discretional
authority” and “good judgment.” AR at 0164.0036-.0037.
The Manual describes the test methods for identifying and measuring PCBs as “evolving
rapidly.” AR at 0164.0242. Ecology added Section 4.5 to the Manual in 2018 to specifically
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address methods for identifying and measuring PCBs. The Manual emphasizes that only test
methods approved under 40 C.F.R. part 136 can be used for permit applications and permit
compliance monitoring, consistent with federal regulation. Because Method 608 (now 608.3) is
the only method for analyzing PCBs that is approved under part 136, Section 4.5 repeatedly states
that it must be used for permit applications and for monitoring compliance with numeric effluent
limits for PCBs. See, e.g., AR at 0164.0249, .0256, .0261-.0263.2
The Manual clearly states that Methods 8082A and 1668C cannot be used to evaluate
compliance with numeric effluent limits for PCBs. However, the Manual presents Methods 8082A
and 1668C, along with Method 608.3, as “the three methods that are used for permitting purposes.”
AR at 0164.0249. Because water quality standards for PCBs are lower than Method 608.3 can
evaluate, and Methods 8082A and 1668C “provide lower analytical limits,” Ecology advises that
Methods 8082A and 1668C may be used for purposes other than evaluating compliance. AR at
0164.0250.
For example, Section 4.5 specifically advises permit writers to “[u]se all valid and
applicable data, including data collected using methods not approved under 40 [C.F.R.] Part 136
(e.g. Methods 1668C and 8082A),” to evaluate whether a discharger’s effluent has the reasonable
potential to violate a water quality standard and to calculate appropriate numeric effluent limits for
permits. AR at 0164.0261-.0262. Section 4.5 also allows permit writers to evaluate the
effectiveness of best management practices using “methods appropriate” for this purpose. AR at
0164.0263. This method selection “will depend on expected concentrations in the sampled media,
2 At the time of the Manual’s publication, Method 608, an earlier iteration of Method 608.3, was still permitted as laboratories were in the process of receiving accreditation for Method 608.3.
8 No. 55164-1-II
the [practices] required or selected, and the potential sources of PCBs on and to the site or facility.”
AR at 0164.0264. And it may be appropriate to use Method 1668C where “identification of sources
based on congener profile is necessary.” AR at 0164.0263.
With Method 1668C specifically, Ecology explains that it is “not proposing to seek EPA
approval of this method under 40 [C.F.R.] part 136.5,” which provides for approval of alternate
methods for limited regional use, “as there are known problems in regards to the repeatability and
accuracy of the method in addition to the expense of the analysis.” AR at 0164.0256. But Ecology
recognizes that “targeted monitoring under Method 1668C” may be “useful for identifying PCB
sources” or “evaluating the effectiveness of a best management practice,” two activities that are
separate from compliance monitoring. AR at 0164.0257.
A quality assurance project plan is required when using Method 1668C for any purpose,
and it is recommended when using Method 8082A. These plans “ensure that the collected
environmental data can be used for making decisions.” Id. They detail the processes necessary for
“data collection, management[,] and subsequent analysis,” and they develop standard operating
procedures “to evaluate and control data accuracy.” AR at 0164.0258. Procedures such as
measuring the PCBs present in distilled water (blanks) for comparison “increase result precision”
and “ensure no contamination occurs at any point during the analytical procedure.” AR at
0164.0255.
Subsection 4.5.4 provides additional guidance that permit writers “should consider . . .
when requiring monitoring using either [M]ethod 8082A or 1668C.” AR at 0164.0257. For
example, before requiring additional data collection, the permit writer should consider “the
question the additional monitoring is going to attempt to answer and what kind of data is needed
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to meet that end.” Id. Some monitoring may be done to assist with making a decision, while other
monitoring may serve to estimate the scope of a problem. Additionally, while Method 1668C is
the most sensitive method, it is also the most expensive. Therefore, “it is not necessarily
appropriate to require this method when [M]ethod 8082A will also return detectible
concentrations.” AR at 0164.0260. “Information collected through previous monitoring should
help the permit writer understand which method to select.” Id.
Section 4.5.5 further advises permit writers on how to select the appropriate analytical test
method and instructs permit writers to “[o]nly include monitoring requirements when necessary
for the facility and its specific discharge situation.” Id. If dischargers are unlikely to have PCBs in
their effluent at levels that would violate water quality standards, then “PCB monitoring may not
be necessary.” Id. “While PCB monitoring may be appropriate for some dischargers based on
individual facility characteristics, permit writers should consider the value and purpose of
requiring PCB monitoring when developing discharge permits.” AR at 0164.0261.
Thus, Section 4.5 requires that only Method 608.3 be used to ultimately determine
compliance with PCB effluent limits, but the more sensitive test Methods, 8082A and 1668C, can
be used for other purposes in the course of the permitting process.
ANALYSIS
PROMULGATING A “RULE” UNDER THE APA
Northwest Pulp & Paper argues that when Ecology added Section 4.5 to the 2018 version
of its Permit Writer’s Manual, it promulgated a rule that is invalid under RCW 34.05.570(2)(c).
Northwest Pulp & Paper argues Section 4.5 is an invalid rule because it was adopted without
compliance with statutory rule-making procedures and because Ecology’s decision to allow permit
10 No. 55164-1-II
writers to require the use of test methods that are not approved under 40 C.F.R. part 136 exceeds
the agency’s authority and is arbitrary and capricious. We disagree. Section 4.5 is not a rule, and
RCW 34.05.570(2)(c) does not apply.3
A. Defining a “Rule” Under the APA
To be valid, a rule must comply with the requirements of the APA. RCW 34.05.375. We
may invalidate a rule if it was adopted without compliance with statutory rule-making procedures,
if its promulgation exceeded the agency’s authority, or if it is arbitrary and capricious. RCW
34.05.570(2)(c). We review the validity of a rule de novo. Ctr. for Biological Diversity v. Dep’t of
Fish & Wildlife, 14 Wn. App. 2d 945, 967, 474 P.3d 1107 (2020).
As a preliminary matter, however, we must determine whether the challenged agency
action in this case falls within the APA’s definition of a “rule.” To determine whether an agency
action constitutes a rule under the APA, we look to the Act’s statutory definition. McGee Guest
Home, Inc. v. Dep’t of Soc. & Health Servs., 142 Wn.2d 316, 322, 12 P.3d 144 (2000). The label
the agency assigns to the action is not determinative. Id.
Under the APA, there are two elements of a rule. For an agency action to qualify as a rule,
it must be an “agency order, directive, or regulation of general applicability,” and it must fall into
one of five enumerated categories. RCW 34.05.010(16); see also Failor’s Pharmacy v. Dep’t of
Soc. & Health Servs., 125 Wn.2d 488, 494, 886 P.2d 147 (1994). An agency action is not a rule if
3 Northwest Pulp & Paper conceded that if Section 4.5 is not a rule, this rule challenge fails. During oral argument, Northwest Pulp & Paper explained that RCW 34.05.570(4), addressing other agency action, is not a basis it is relying on for this challenge. See Wash. Court of Appeals oral argument, Northwest Pulp & Paper v. Dep’t of Ecology, No. 55164-1-II (Sept. 10, 2021), at 10 min., 55 sec. through 12 min., 42 sec., audio recording, TVW, Washington State’s Public Affairs Network, https://www.tvw.org/watch/?eventID=2021091014.
11 No. 55164-1-II
it consists of “statements concerning only the internal management of an agency and not affecting
private rights or procedures available to the public.” RCW 34.05.010(16)(i).
1. Directive of general applicability
An agency action is a directive of general applicability if it is “applied uniformly to all
members of a class.” Failor’s Pharmacy, 125 Wn.2d at 495. For example, in Simpson Tacoma
Kraft Co. v. Department of Ecology, Ecology instituted a numeric limit on the discharge of dioxin
and “uniformly applie[d]” that limit to “all entities which discharge dioxin into the state’s waters,
regardless of which entity or water body is at issue.” 119 Wn.2d 640, 648, 835 P.2d 1030 (1992).
The Supreme Court concluded that this was a directive of general applicability because Ecology
applied the standard “uniformly to the entire class of entities which discharges dioxin into the
state’s water.” Id.
How the agency applies the challenged standard, not the outcome of the application, is
determinative. The outcomes for individual entities may differ even when a standard is uniformly
applied. For example, in Failor’s Pharmacy, Medicaid prescription service providers challenged
amendments to reimbursement payment schedules. 125 Wn.2d at 490. Although the amount that
each service provider was reimbursed differed based on factors such as the number of prescriptions
they dispensed per year, each amount was determined by the agency applying the same, uniformly
applicable, reimbursement schedules. See id. at 491-92. Thus, the schedules were directives of
general applicability. Id. at 495-96.
In contrast, this court has held that an agency action is not a directive of general
applicability where the challenged action is a document “written to guide agency staff” that “does
not require strict adherence.” Sudar v. Dep’t of Fish & Wildlife Comm’n, 187 Wn. App. 22, 31-32,
12 No. 55164-1-II
347 P.3d 1090 (2015). In Sudar, petitioners challenged a policy document that the Department of
Fish and Wildlife Commission developed to “guide the Department [of Fish and Wildlife] in its
management of state resources,” including its “adoption of fishery rules.” Id. at 25-26. But the
policy document itself had “no legally enforceable regulatory effect on fishers.” Id. at 32. Its
objectives were “unenforceable until and unless the Department promulgate[d] rules”
implementing them, and a fisher could not be penalized for violating the policy document. Id.
Department staff were not bound by the policy document either. Id. at 33.
In sum, not every agency action carries the force of a rule. Where the agency action
provides guidance for agency staff that (1) allows staff to exercise discretion, (2) provides for case-
by-case analysis of variables rather than uniform application of a standard, and (3) is not binding
on the regulated community, the action does not constitute a directive of general applicability.
a. Section 4.5 does not mandate use of Methods 8082A and 1668C, and instead it contemplates permit writer discretion
When Section 4.5 addresses which testing methods should be used for various purposes, it
only employs mandatory language to specify when regulations require use of Method 608.3. The
section is clear that Method 608.3 must be used in permit applications and to monitor compliance
with numeric effluent limits because these requirements are established in federal regulations.
For all other purposes, Section 4.5 allows for flexibility and discretion in determining
which testing methods will be required in an individual permit or permitting process. For example,
Methods 8082A and 1668C “may be used for permitting purposes to evaluate sources [of PCB
pollution], but not for numeric effluent limit compliance.” AR at 0164.0250 (emphasis added).
“For the purposes of applying [all known and reasonable technologies to control pollution],
Method 1668C may be required,” but this depends on the need to identify individual congeners,
13 No. 55164-1-II
whether the expected concentrations of PCBs can be detected or quantified by Method 608.3, and
the specific water treatment goals. AR at 0164.0263 (emphasis added). Permits also “may require
monitoring using two different methods for two different purposes (e.g., Method 608.3 for
monitoring to assess compliance with a numeric effluent limit and Methods 1668C or 8082A for
[best management practices] effectiveness monitoring).” AR at 0164.0264 (emphasis added). The
Manual advises the permit writer to “consider the result [they] want to achieve and the
appropriateness of additional sampling.” AR at 0164.0260. Permit writers are expected to
“exercise a considerable amount of discretional authority” and “good judgment.” AR at
0164.0036-.0037. The plain language of Section 4.5 does not mandate use of Methods 8082A or
1668C. Instead, the decision to require use of these methods is within the permit writer’s discretion.
b. Section 4.5 does not contain a uniformly applicable standard
Unlike in Simpson and Failor’s Pharmacy, Section 4.5 does not require permit writers to
uniformly impose PCB testing requirements on all entities discharging any amount of PCBs into
any body of water. The Manual expressly states that “PCB monitoring may not be necessary” if
the PCBs in a discharger’s effluent are unlikely to violate water quality standards, and it instructs
permit writers to “[o]nly include monitoring requirements when necessary for the facility and its
specific discharge situation.” AR at 0164.0260.
The decision of whether to require any additional testing for PCBs will depend on multiple
site-specific variables. Permit writers should consider the discharging facility’s size, the possibility
of preexisting pollution in the water, the type of pollutants involved, and what benefit additional
monitoring would offer “before requiring PCB characterization in permits.” Id.
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If permit writers do decide to impose additional testing to monitor the presence of PCBs,
Section 4.5 instructs them to again consider site-specific variables and to exercise discretion. For
example, when evaluating the effectiveness of best management practices, a permit writer’s
method selection will depend on the expected concentrations of pollutants in the water, the best
practices required of the discharger, and the potential sources of PCBs. Section 4.5 advises that
“[i]nformation collected through previous monitoring should help the permit writer understand
which method to select.” Id.
The Manual also recognizes that the costs of different testing methods vary substantially,
with Method l668C being the most expensive. Therefore, it cautions that while Method 1668C
“will return information down to the lowest quantifiable level, it is not necessarily appropriate to
require this method when [M]ethod 8082A will also return detectible concentrations.” Id.
In Failor’s Pharmacy, outcomes differed for the individual entities being regulated, but the
same reimbursement schedules were imposed on all members of the regulated community. Here,
individual outcomes differ because permit writers are considering and imposing different
obligations within each permit—under the Manual’s guidance—after reviewing site-specific
conditions. Even though permit writers are instructed to use the guidance in the Manual “‘for all
PCB monitoring in all water quality permits,’” there is no uniform directive within the Manual that
requires permit writers to impose testing Method 1668C or 8082A. Appellants’ Opening Br. at 33
(emphasis omitted) (quoting AR at 0449.0003).
The Manual instructs permit writers to “[u]se all valid and applicable data, including data
collected using methods not approved under 40 [C.F.R.] Part 136 (e.g. Methods 1668C and
8082A)” to evaluate whether a discharger’s effluent has the reasonable potential to violate a water
15 No. 55164-1-II
quality standard and to calculate appropriate numeric effluent limits for permits. AR at 0164.0261-
.0262. Northwest Pulp & Paper argues this language “directs and requires permit writers to use
unapproved test methods” for these purposes. Appellants’ Opening Br. at 25. This language
requires only that permit writers use all available data to make the most informed decisions
possible. The Manual does not state that permit writers must mandate data collection using
Methods 1668C and 8082A where such data does not already exist.
Moreover, a state policy goal is to prevent all discharges that cause or contribute to a
violation of water quality standards. RCW 90.48.520; WAC 173-201A-510(1). Requiring permit
writers to use all valid and applicable data to evaluate the reasonable potential of a discharge to
violate water quality standards is one way to achieve this stated goal. As explained above, Method
608.3 can detect PCBs at a concentration of 0.065 μg/L, but the state numeric criterion for human
health is 0.00017 μg/L. If Ecology cannot use data collected using more sensitive test methods,
then Ecology cannot know when a permittee is discharging PCBs at a concentration lower than
0.065 μg/L yet higher than the water quality criterion of 0.00017 μg/L. The development of
numeric effluent limits for each permit is Ecology’s responsibility under the law, and the Supreme
Court has affirmed that “Ecology may use any data gathered in the past for its decision making on
permits.” Hillis v. Dep’t of Ecology, 131 Wn.2d 373, 400, 932 P.2d 139 (1997).
Section 4.5 does not uniformly require PCB testing, nor does it require uniform application
of a specific standard to determine what testing method should be used in a particular circumstance.
c. Section 4.5 has no regulatory effect, instead it is guidance for permit writers
The Manual is intended to guide use of the more sensitive testing methods in permitting.
Importantly, Section 4.5 has “no legally enforceable regulatory effect” on PCB dischargers, and
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dischargers cannot be penalized for violating the Manual. Sudar, 187 Wn. App. at 32. Only a
violation of a specific NPDES permit condition will subject a discharger to an enforcement action.
Like the policy at issue in Sudar, Section 4.5 is “written to guide agency staff,” and it “does
not require strict adherence” with its guidance. Id. at 31-32. Although the Manual’s preliminary
note requires permit writers to use its listed procedures, the note also contemplates that permit
writers may deviate from those procedures. “If a permit writer believes a permitting situation
requires a different process than in the manual,” then they are instructed to “discuss the alternative
process with their supervisor.” AR at 0164.0004. This is reiterated in the Manual’s introductory
section, which explains that the Manual “is not regulation” but it “describes law and regulation
pertaining to permitting.” AR at 0164.0033. “If the process does not fit a permitting circumstance,
the permit writer can explore alternative processes as long as the law and regulation are met.” Id.
In sum, Section 4.5 is not a directive of general applicability. Its purpose is to guide agency
staff in their exercise of discretion as they implement the NPDES permit program and develop
site-specific discharge permits. It is not binding on either the regulated community or agency staff.
2. Enumerated categories
Because Northwest Pulp & Paper fails to show that Section 4.5 satisfies the first element
of the APA’s definition of a “rule,” we decline to consider whether Section 4.5 falls into one of
RCW 34.05.010(16)’s enumerated categories and satisfies the second element.
We hold Ecology did not adopt a rule when it added Section 4.5 to the Manual.
B. Northwest Pulp & Paper Has Not Established Invalidity Under the APA
Northwest Pulp & Paper argues Section 4.5 is an invalid rule under RCW 34.05.570(2)(c)
because the section was added without compliance with statutory rule-making procedures, its
17 No. 55164-1-II
promulgation exceeded Ecology’s authority, and it is arbitrary and capricious. Because we hold
that Section 4.5 is not a rule, RCW 34.05.570(2)(c) is inapplicable, and we do not consider these
arguments.
Although Section 4.5 is not subject to judicial review as a rule, we note that procedural
avenues are available for dischargers to challenge an Ecology decision to impose specific
requirements to test for PCBs using Method 1668C or 8082A. Dischargers may challenge the
issuance, modification, or termination of their permit, including any modification of its conditions
or terms, before the Pollution Control Hearings Board. RCW 43.21B.110(1)(c). Dischargers may
also challenge the enforcement of any permit condition. RCW 34.05.570(3); RCW 43.21B.110(a)-
(b). Additionally, requirements to use more sensitive testing methods outside of the permit’s
conditions, such as during the permit application process, may constitute other agency action that
can be challenged under RCW 34.05.570(4).
18 No. 55164-1-II
CONCLUSION
We hold Ecology did not promulgate a rule under the APA when it added Section 4.5 to
its Permit Writer’s Manual. Accordingly, we affirm the superior court’s order dismissing
Northwest Pulp & Paper’s petition for judicial review and denying its request for declaratory
judgment.
Glasgow, A.C.J. We concur:
Cruser, J.
Veljacic, J.