IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WEYERHAEUSER NR COMPANY, No. 86114-0-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION WASHINGTON STATE DEPARTMENT OF ECOLOGY and POLLUTION CONTROL HEARINGS BOARD,
Respondents,
and
NIPPON DYNAWAVE PACKING CO., LLC, and NORTH PACIFIC PAPER CO., LLC, Intervenor-Respondents.
MANN, J. — Weyerhaeuser NR Company (Weyerhaeuser), Nippon Dynawave
Packing Co. (NDP), and North Pacific Paper Co., LLC (NORPAC), occupy a large
industrial complex in Longview, Washington (Longview facility). Washington State
Department of Ecology (Ecology) regulates stormwater discharges from the Longview
facility under individual National Pollutant Discharge Elimination System (NPDES)
permits issued most recently in 2019 to Weyerhaeuser, NDP, and NORPAC.
Weyerhaeuser appealed the three NPDES permits and a penalty assessment to the No. 86114-0-I/2
Pollution Control Hearings Board (PCHB). The PCHB granted summary judgment for
Ecology on several legal issues. On appeal to this court, Weyerhaeuser argues the
PCHB erred by (1) determining the Weyerhaeuser permit to be valid; (2) determining
the NDP permit and the NORPAC permit did not violate 40 C.F.R. § 122.44(d)(1); (3)
determining the NORPAC permit contained adequate monitoring requirements; and (4)
affirming the penalty to Weyerhaeuser. We affirm the PCHB’s orders on summary
judgment on issues 1, 2, 5, 7, 8, 10, and 13.
I
The Federal Water Pollution Control Act, also known as the Clean Water Act
(CWA), 33 U.S.C. §§ 1251-1389, is intended to “restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The
CWA set a national goal to eliminate the discharge of pollutants into the Nation’s waters
by 1985. 33 U.S.C. § 1251(a)(1). The CWA also recognized the role of the States in
controlling water pollution: “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.” 33 U.S.C. § 1251(b). Consistent with this policy, the CWA explicitly
authorizes states to regulate water pollution more stringently than required by the CWA.
33 U.S.C. § 1370.
The CWA prohibits the discharge of any pollutant from a point source to
navigable waters without a permit. 33 U.S.C. §§ 1311(a), 1362(12). The National
Pollutant Discharge Elimination System (NPDES) is the permitting program through
which individuals, corporations, and governments obtain the required permits. 33
U.S.C. § 1342; Decker v. Nw. Env’t Def. Ctr., 568 U.S. 597, 602, 133 S. Ct. 1326, 185
-2- No. 86114-0-I/3
L. Ed. 2d 477 (2013). The Environmental Protection Agency (EPA) sets the base
requirements for the NPDES program but is authorized to delegate the administration of
the NPDES program to states if a state requests authority and is able to demonstrate
adequate authority to implement the minimum requirements of the CWA. 33 U.S.C. §
1342(b). In 1974, the EPA authorized Ecology to administer the NPDES program in
Washington. See Discharges of Pollutants to Navigable Waters, 39 Fed. Reg. 26,061
(July 16, 1974); RCW 90.48.260. And in 1987, Congress passed the Water Quality Act,
amending the CWA, so that stormwater discharges associated with industrial activity
are subject to permit requirements. Defs. of Wildlife v. Browner, 191 F.3d 1159, 1163,
197 F.3d 1035 (9th Cir. 1999); 33 U.S.C. § 1342(p)(2); Water Quality Act of 1987, Pub.
L. No. 100-4, 101 Stat. 7.
“An individual permit authorizes a specific entity to discharge a pollutant in a
specific place and is issued after an informal agency adjudication process.” Nat. Res.
Def. Council v. U.S. Env’t Prot. Agency, 279 F.3d 1180, 1183 (9th Cir. 2002). The
permit must include (1) effluent limitations that reflect the pollution reduction achievable
by using technological controls and (2) any more stringent limits necessary to meet
water quality standards. Am. Paper Inst., Inc. v. U.S. Env’tl Prot. Agency, 996 F.2d 346,
349 (1993); 33 U.S.C. § 1311(b)(1)(A), (C); WAC 173-220-130(1). Generally, water
quality standards are based in part on two types of criteria: “specific numeric limitations
on the concentration of a specific pollutant in the water (e.g., no more than .05
milligrams of chromium per liter) or more general narrative statements applicable to a
wide set of pollutants (e.g., no toxic pollutants in toxic amounts).” Am. Paper Inst., 996
F.2d at 349; 40 C.F.R. § 122.44. Accordingly, NPDES permits may include both
-3- No. 86114-0-I/4
narrative and numeric effluent limits. If numeric effluent limits are infeasible, narrative
limits in the form of best management practices (BMPs) are used to control pollutants.
40 C.F.R. § 122.44(k).
Ecology also administers Washington’s Water Pollution Control Act (WPCA), ch.
90.48 RCW. The WPCA prohibits the discharge of pollutants into any waters of the
state. RCW 90.48.080. To that end, Washington NPDES permits require application of
all known, available, and reasonable methods of treatment (AKART) regardless of the
quality of the receiving water and the minimum water quality standards set for that
water. WAC 173-220-130(1); RCW 90.52.040; 90.54.020(3)(b); 90.48.520.
A NPDES permit may be renewed every five years at which time Ecology may
revise permit conditions as necessary for compliance and based on information
provided by the discharger. WAC 173-220-180. Once a permit is issued, if Ecology
determines that discharge causes or contributes to a violation of water quality
standards, the permit must be modified. WAC 173-201A-510(1)(b).
Under this framework, Ecology regulates stormwater discharges from
Weyerhaeuser, NDP, and NORPAC under three individual NPDES permits.
II
A
NDP, NORPAC, and Weyerhaeuser occupy the Longview facility. The Longview
facility includes a Kraft pulp and paper mill, a thermo-mechanical pulp, de-ink, and
newsprint paper mill, various inorganic chemical manufacturers, and a short-line
railway. Weyerhaeuser’s operations include a log sorting and export facility, a
dimensional lumber sawmill, and a truck washing and maintenance facility. Historically,
-4- No. 86114-0-I/5
the entire facility was owned and operated solely by Weyerhaeuser and stormwater
discharges were allowed under a single NPDES permit that was last issued to
Weyerhaeuser in 2014. At that time, Ecology performed a reasonable potential analysis
to determine water quality based effluent limits (WQBELs) necessary to achieve water
quality standards.
In 2016, Weyerhaeuser sold portions of the facility to NDP and NORPAC.
Discharges from the three companies continued to be regulated under one NPDES
permit which was transferred to NDP.
Stormwater from the Longview facility drains to either an industrial wastewater
treatment facility owned and operated by NDP, or into one of two stormwater outfalls on
Weyerhaeuser’s property known as 003B and 004B. Weyerhaeuser has been required
to monitor discharges from outfalls 003B and 004B since at least 1991. Stormwater that
drains to outfalls 003B and 004B receives treatment before being discharged to the
Consolidated Diking Improvement District (CDID) Ditch #3 which flows to the Columbia
River. CDID Ditch #3 and the Columbia River are waters of the state and are listed as
impaired and threatened waters. 1
Outfalls 003B and 004B drain a large area of the complex and, unlike typical
stormwater discharges, have flow year-round. The drainage area for outfall 003B
includes Weyerhaeuser’s log sort yard and export dock and NDP’s chip storage piles.
The drainage area for 004B includes NDP’s administrative building, parking lot, and hog
1 CDID Ditch #3 is water quality impaired for dissolved oxygen and is a water of concern for
turbidity. Columbia River is water quality impaired for bacteria and temperature.
-5- No. 86114-0-I/6
fuel storage, the majority of NORPAC’s operations, and most of Weyerhaeuser’s lumber
operations.
While the Longview facility was still owned and operated solely by
Weyerhaeuser, Weyerhaeuser was required to study its stormwater system, including
areas later sold to NDP and NORPAC. The purpose of the study was to determine
whether discharges from outfalls 003B and 004B were meeting effluent limits and the
application of AKART. The study resulted in Weyerhaeuser’s May 2016 AKART report
which was approved by Ecology (the AKART report). The AKART report concluded that
the outfall 004B drainage basin generally met performance limits while outfall 003B was
more challenging to assess and that implementation of BMPs would support application
of AKART.
Ecology issued a new NPDES permit to Weyerhaeuser effective August 1, 2019
(2019 Weyerhaeuser permit). The 2019 Weyerhaeuser permit authorized NDP and
NORPAC to discharge stormwater into Weyerhaeuser’s stormwater system. Ecology
considered the NDP and NORPAC stormwater discharges to be internal discharges to
Weyerhaeuser’s stormwater system—not to waters of the state. Weyerhaeuser was
also required to complete a receiving water study to determine whether discharges from
outfalls 003B and 004B had a reasonable potential to cause a violation of water quality
standards in CDID Ditch #3. After the study, Ecology would modify effluent limits as
necessary. 2
2 The study was completed in June 2022.
-6- No. 86114-0-I/7
In developing the 2019 Weyerhaeuser permit, Ecology considered data
submitted by Weyerhaeuser under previous permits, the AKART report, and information
submitted in permit applications. Ecology also conducted a reasonable potential
analysis to determine WQBELs for discharge from outfalls 003B and 004B. Ecology
evaluated numeric criteria for dissolved oxygen, fecal coliform, turbidity, toxic pollutants,
and temperature. Ecology expected a potential for Weyerhaeuser to violate turbidity
criteria but did not make a final determination pending completion of the receiving water
study. Because of the limited data available for CDID Ditch #3, Ecology was unable to
model the impact of the 5-day biochemical oxygen demand (BOD5) and imposed
performance based limits to meet AKART. Accordingly, the 2019 Weyerhaeuser permit
authorized stormwater discharge to CDID Ditch #3 subject to numerical effluent limits
for BOD5, settleable solids, oil and grease, turbidity, copper, dissolved oxygen, and pH.
The permit also required Weyerhaeuser to implement the AKART report and a
stormwater pollution prevention plan (SWPPP). 3
Ecology also issued a NPDES permit to NORPAC effective August 1, 2019 (2019
NORPAC permit). Ecology considered data submitted by Weyerhaeuser under
previous permits, the AKART report, and information submitted in permit applications.
Ecology expected NORPAC’s stormwater discharges to comprise one-quarter to one-
third of the total flow from outfall 004B and that, if NORPAC maintained its facility in
3 A SWPPP includes BMPs. Under federal regulations, BMPs are defined as “schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of ‘waters of the United States.’ BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.” 40 C.F.R. § 122.2. Washington defines BMPs as “physical, structural, and/or managerial practices approved by the department that, when used singularly or in combination, prevent or reduce pollutant discharges.” WAC 173-201A-020.
-7- No. 86114-0-I/8
accordance with historic practices, its discharges would not have a significant impact on
Weyerhaeuser’s system. Accordingly, the effluent limits for Weyerhaeuser’s outfall
004B were reflected in the 2019 NORPAC permit as effluent benchmarks applied to
outfalls 002A and 003A. 4 The 2019 NORPAC permit also contained narrative limits for
all stormwater discharge to Weyerhaeuser’s system. And the 2019 NORPAC permit
contained BMPs and implementation of a SWPPP to prevent adverse impacts to
Weyerhaeuser’s stormwater system.
The NDP permit was modified in July 2019 (2019 NDP Permit) to remove the
discharges associated with Weyerhaeuser and NORPAC and to authorize NDP to
discharge stormwater to Weyerhaeuser’s stormwater system. Ecology determined that
stormwater discharges from NDP were minimal in comparison to Weyerhaeuser and
NORPAC. The 2019 NDP permit was modified to include narrative limits for stormwater
discharged to Weyerhaeuser’s system, BMPs, and implementation of a spill control plan
and SWPPP.
Both the 2019 NDP permit and the 2019 NORPAC permit required the permittees
to notify Weyerhaeuser of conditions that could impact Weyerhaeuser’s stormwater
system.
B
On August 16, 2019, Weyerhaeuser appealed the three 2019 NPDES permits to
the PCHB. The parties agreed to stay the proceedings while they engaged in
negotiation to resolve the issues. The stay was lifted in February 2022.
4 Effluent benchmarks are not numerical limits and discharges that fail to meet benchmarks are
not automatically violations of the permit.
-8- No. 86114-0-I/9
Meanwhile, in 2020, Ecology issued an administrative order to NDP, NORPAC,
and Weyerhaeuser. The order cited Weyerhaeuser for 26 discharge violations for
turbidity and BOD5 at outfall 004B. Ecology also cited NORPAC for 37 benchmark
exceedances of BOD5, turbidity, pH, and settleable solids at outfalls that drain to
Weyerhaeuser’s system and then to 004B. Minor discharges from NORPAC also
showed benchmark values for turbidity and BOD5 that were above the daily maximum.
Ecology determined that “industrial activities at [NPD, NORPAC, and Weyerhaeuser]
have the potential to cause increased BOD5 and turbidity levels” from outfalls 003B and
004B.
The parties were ordered to submit a stormwater system evaluation and
characterization study sampling plan. The study revealed that there were more
stormwater catch basins that could potentially receive contaminated stormwater from
NDP’s hog fuel prep area—which drains to outfall 004B—than previously reported.
On July 8, 2021, Ecology sent a notice of violation to Weyerhaeuser citing 3
violations at outfall 003B for pH, and 23 violations at outfall 004B for BOD5 and turbidity.
On February 14, 2022, Ecology issued a $40,000 penalty to Weyerhaeuser.
Weyerhaeuser appealed Ecology’s notice of penalty and the penalty appeal was
consolidated with the 2019 permit appeal.
On March 8, 2022, the PCHB granted the intervention of NDP and NORPAC.
The parties submitted and agreed to the following legal issues relevant here: 5
1. Does [the 2019 Weyerhaeuser Permit] arbitrarily and unlawfully impose liability upon Weyerhaeuser for stormwater discharges into Consolidated Diking Improvement District Ditch #3 (“Ditch #3”) from Outfalls 003B and
5 The parties originally agreed to 15 issues. Only the following seven are at issue in this appeal.
-9- No. 86114-0-I/10
004B where such discharges are commingled with permitted and unpermitted discharges from [NDP] and [NORPAC]?
2. Does the [2019] Weyerhaeuser Permit arbitrarily and unlawfully impose upon Weyerhaeuser strict numerical effluent limits and monitoring requirements for storm water discharges into Ditch # 3 from Outfalls 003B and 004B where such discharges are commingled with permitted and unpermitted discharges from NDP and NORPAC that have no numerical effluent limits and are subject to less stringent monitoring requirements?
5. Does [the 2019 NDP Permit] violate 40 C.F.R. §122.44(d)(1) because it was issued without Ecology first undertaking a reasonable potential analysis?
7. Does [the 2019 NORPAC Permit] violate 40 C.F.R. §122.44(d)(1) because it was issued without Ecology first undertaking a reasonable potential analysis?
8. Does the [2019] NORPAC Permit violate the Clean Water Act because it lacks adequate monitoring requirements to ensure that NORPAC does not cause or contribute to violation of water quality standards in Ditch #3?
10. Should the permits be remanded for modification and reissuance by Ecology in accordance with the Clean Water Act, Administrative Procedure Act, and other laws, pursuant to WAC 371-08-540?
13. Should the Penalty assessed against Weyerhaeuser be dismissed because Weyerhaeuser’s NPDES permit is invalid?
After considering motions and cross-motions, the PCHB granted summary
judgment against Weyerhaeuser on these seven issues. Weyerhaeuser appeals.
III
The Administrative Procedure Act (APA), ch. 34.05 RCW, governs review of
PCHB orders. Port of Seattle v. Pollution Control Hr’gs Bd., 151 Wn.2d 568, 587, 90
P.3d 659 (2004). If the agency decision was on summary judgment, “the reviewing
court must overlay the APA standard of review with the summary judgment standard.”
Verizon Nw., Inc. v. Emp’t Sec. Dep’t, 164 Wn.2d 909, 916, 194 P.3d 255 (2008).
-10- No. 86114-0-I/11
Accordingly, facts in the record are reviewed de novo and are viewed in the light most
favorable to the nonmoving party. Verizon, 164 Wn.2d at 916. Summary judgment is
appropriate only where the undisputed material facts entitle the moving party to
judgment as a matter of law. Verizon, 164 Wn.2d at 916. “The burden of demonstrating
the invalidity of agency action is on the party asserting invalidity.” RCW
34.05.570(1)(a).
“Review is confined to the record before the Board.” Snohomish County v.
Pollution Control Hr’gs Bd., 187 Wn.2d 346, 357, 386 P.3d 1064 (2016). An agency’s
legal determinations are reviewed under the “error of law” standard, which allows this
court to substitute its view of the law for the agency’s. Puget Soundkeeper All. v.
Pollution Control Hr’gs Bd., 189 Wn. App. 127, 136, 356 P.3d 753 (2015). Under this
standard, questions of law and the agency’s application of the law are reviewed de
novo. Port of Seattle, 151 Wn.2d at 588.
Relief may be granted based on any of the grounds listed in RCW 34.05.570.
Relevant here, this court shall grant relief if it determines that: (1) the PCHB has
erroneously interpreted or applied the law or (2) the order is arbitrary and capricious,
RCW 34.05.570(3)(d), (i). “An agency action is arbitrary or capricious if it ‘is willful and
unreasoning and taken without regard to the attending facts or circumstances.’”
Honeywell v. Dep’t of Ecology, 2 Wn. App. 2d 601, 611, 413 P.3d 41 (2017) (internal
quotation marks omitted) (quoting Port of Seattle, 151 Wn.2d at 589).
Weyerhaeuser argues that remand of all three permits is necessary because the
“permitting scheme” fails to ensure compliance with water quality standards. First,
-11- No. 86114-0-I/12
Weyerhaeuser asserts the permitting scheme is unlawful because Ecology imposed no
limits on discharge from NDP and less restrictive limits on discharge from NORPAC. In
contrast, Ecology argues that it is not the scheme that must be sufficient, but rather
each individual permit, and that Weyerhaeuser alone is responsible for compliance with
its permit. We agree with Ecology.
Washington requires the application of AKART and any more stringent limits
necessary to meet water quality standards. Effluent limitation means “any restriction
established by the state or [EPA] 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. For stormwater discharges, the
primary means to be used for requiring compliance with water quality standards is
through BMPs. WAC 173-201A-510(3)(d). If a violation of water quality standards
occurs when BMPs are being applied, the discharger must modify existing practices or
apply further water pollution control measures that are selected or approved by Ecology
to achieve compliance. WAC 173-201A-510(3)(b). Additionally, if Ecology determines
a facility has substantial potential to violate water quality standards, Ecology will notify
the facility and issue an order it deems appropriate. RCW 90.48.120.
Here, Ecology determined the effluent limits necessary in the 2019
Weyerhaeuser permit based on a reasonable potential analysis, data provided by
Weyerhaeuser, and the AKART report. Ecology issued the 2019 NDP permit and 2019
NORPAC permit to include effluent limits and benchmarks based on classification of the
discharges as internal, the amount of stormwater discharged by each company, the
AKART report, information submitted with the permit applications, and the reasonable
-12- No. 86114-0-I/13
potential analysis of discharge from outfalls 003B and 004B. In other words, Ecology
considered the circumstances—the stormwater system as a whole—when developing
the individual permits. Contrary to Weyerhaeuser’s assertion, the 2019 NDP permit and
2019 NORPAC permit do contain effluent limits. And Weyerhaeuser provides no
authority to persuade that the data considered by Ecology was somehow deficient or
that the individual permits must be modified as a scheme.
Second, Weyerhaeuser argues that Ecology arbitrarily imposed effluent limits
without providing Weyerhaeuser the tools to ensure it can address discharges from
NDP and NORPAC. Weyerhaeuser provides a list of several mechanisms Ecology
could have used when drafting the permit and asserts it is arbitrary and capricious for
Weyerhaeuser to be solely responsible for ensuring compliance with its permit without
such mechanisms. We disagree.
Weyerhaeuser provides no authority to support that Ecology was required to
include any of the mechanisms listed. Instead, Ecology did what it was required to do
and set certain permit conditions, including effluent limits it deemed necessary, to
ensure compliance with water quality standards set for CDID Ditch #3. Weyerhaeuser
was required to comply with the permit, apply AKART and BMPs to treat stormwater,
and to modify treatment if violations were occurring. And Weyerhaeuser provides no
argument or authority to persuade that the terms of its permit, the limits applied to
outfalls 003B and 004B, are invalid.
Weyerhaeuser also points to Ecology’s acknowledgment that the exceedances at
NDP and NORPAC coincide with violations at outfall 004B and that industrial activities
at all three companies contribute to discharge violations at outfall 004B. Weyerhaeuser
-13- No. 86114-0-I/14
asserts that Ecology failed to account for changed circumstances when it issued the
permits. We disagree.
Ecology’s acknowledgment does not make Weyerhaeuser’s permit invalid. As
discussed above, Ecology developed the permits using several sources of information
and considered the stormwater system as a whole. This included the change in
circumstances resulting from NDP and NORPAC acquiring portions of the Longview
facility. For example, Ecology required NORPAC to monitor outfalls that had been
previously unmonitored. Ecology used information available at the time to develop the
permits. Discovery of new information after permit issuance, such as previously
unknown catch basins or the demolition of a building in a drainage area, does not
render a permit invalid. The record shows Ecology did what it was supposed to do
when it determined that the industrial activities of all three companies had the potential
to cause violations of water quality standards—issue an order to address the
exceedances and the substantial potential to violate.
Additionally, Weyerhaeuser cites language from the Phase II Municipal
Stormwater Permit 6 as an example of requiring interconnected systems covered by a
general permit to clarify roles and responsibilities among the systems. But the language
does little to support Weyerhaeuser’s argument. Municipal systems are not a good
example because such systems are subject to different standards than those applied to
the individual industrial NPDES permits at issue. See 33 U.S.C. § 1342(p); Defs. of
6 See Wash. Dep’t of Ecology, Western Washington Phase II Municipal Stormwater Permit §§
S5.A.5, S5.C.5 (2019).
-14- No. 86114-0-I/15
Wildlife, 191 F.3d at 1164. And, here, the individual permits at issue do clarify the roles
and responsibilities of the parties as to their respective stormwater discharges.
Weyerhaeuser fails to show that the PCHB acted arbitrarily or erroneously. We
affirm the PCHB’s summary judgment order on issues 1, 2, and 10.
Weyerhaeuser asserts the PCHB erred by determining that the 2019 NDP permit
and 2019 NORPAC permit did not violate 40 C.F.R. § 122.44(d)(1). Weyerhaeuser
contends that Ecology was required to conduct a reasonable potential analysis of
discharges from NDP and NORPAC and failed to do so. In contrast, Ecology argues
the PCHB’s decision was not erroneous because a site-wide analysis had been
completed prior to modification of the 2019 NDP permit and the issuance of the 2019
NORPAC permit. We agree with Ecology.
A NPDES permit must contain any requirements in addition to or more stringent
than promulgated effluent limitations that are necessary to achieve water quality
standards. 40 C.F.R. § 122.44(d)(1); Wash. State Dairy Fed’n v. Dep’t of Ecology, 18
Wn. App. 2d 259, 289-90, 490 P.3d 290 (2021). 40 C.F.R. § 122.44(d)(1) sets out the
procedures that a permitting authority must follow to determine certain requirements
necessary to achieve water quality standards. Subsection (d)(1)(i) first establishes that
limitations must be set for pollutants that have the reasonable potential to violate water
quality standards:
(i) Limitations must control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the Director determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any
-15- No. 86114-0-I/16
State water quality standard, including State narrative criteria for water quality.
Subsection (d)(1)(ii) then describes the process used to determine
whether there is a reasonable potential for a discharge to lead to an instream
violation of a water quality standard. This reasonable potential analysis process
requires that:
(ii). . . the permitting authority shall use procedures which account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water.
Subsections (iii) through (v) then set out the requirement for the permit to include
effluent limits for an individual pollutant where the reasonable potential analysis shows
that the discharge may result in a violation of an ambient, numeric, or narrative water
quality standards for an individual pollutant. 40 C.F.R. § 122.44(d)(1).
Under 40 C.F.R. § 122.44(d)(1), a reasonable potential analysis is required prior
to setting pollutant-specific WQBELs. Nw. Pulp & Paper Ass’n v. Dep’t of Ecology, 200
Wn.2d 666, 669, 520 P.3d 985 (2022); Wash. State Dairy Fed’n, 18 Wn. App. 2d at 289;
City of San Francisco v. U.S. Env’t Prot. Agency, 75 F.4th 1074, 1091, (9th Cir. 2023),
cert. granted, 144 S. Ct. 2578 (2024). In City of San Francisco, the Ninth Circuit held
that “section 122.44(d)(1) does not set forth an exclusive process for imposing
WQBELs.” 75 F.4th at 1092. In that case, San Francisco argued that general narrative
prohibitions in their NPDES permit were unlawful because they were set without first
-16- No. 86114-0-I/17
doing a reasonable potential analysis. The Environmental Appeals Board 7 (EAB)
disagreed:
Although 40 C.F.R. § 122.44(d) sets forth a process for deriving pollutant- specific effluent limits when the permitting authority determines that a particular pollutant has the reasonable potential to cause or contribute to an exceedance of water quality standards, the regulations do not require all permit conditions necessary to meet water quality standards to be expressed in terms of specific pollutant-by-pollutant limitations.
City of San Francisco, 75 F.4th at 1091. The court agreed with the EAB and clarified:
The regulations in this section set forth minimum requirements for imposing pollutant-specific WQBELs. It does not state that the permitting authority cannot set general narrative limitations limits to achieve compliance with [water quality standards]. The governing statutory section, 33 U.S.C. § 1311(b)(1)(C), requires EPA to impose limitations “necessary” to meet “water quality standards” without restricting the agency to the sort of pollutant-by-pollutant regulation contemplated in § 122.44(d)(1).
City of San Francisco, 75 F.4th at 1092.
Regulations also recognize that numeric limitations are not always feasible and
so WQBELs may be established by BMPs. 40 C.F.R. § 122.44(k); WAC 173-201A-
510(3); Wash. State Dairy Fed’n, 18 Wn. App. 2d at 289. And, for stormwater
discharges, BMPs are the primary means to achieve compliance with water quality
standards. WAC 173-201A-510(3)(d).
Weyerhaeuser argues the PCHB’s decision was erroneous for three reasons.
First, Weyerhaeuser asserts that “unified system[s]” are not exempt from 40 C.F.R. §
122.44(d)(1). But contrary to Weyerhaeuser’s characterization, the permits at issue
7 The EAB is an impartial tribunal established to hear administrative appeals under the major
environmental statutes that the EPA administers. See Changes to Regulations to Reflect the Role of the New Environmental Appeals Board in Agency Adjudications, 57 Fed. Reg. 5320 (Feb. 13, 1992)); see also 40 C.F.R. § 1.25(e)(2).
-17- No. 86114-0-I/18
were not deemed exempt from the requirements of 40 C.F.R. § 122.44(d)(1). Ecology
conducted a reasonable potential analysis for Weyerhaeuser’s discharge from outfalls
003B and 004B to CDID Ditch #3 to determine pollutant specific WQBELs. The
resulting numeric effluent limits imposed in the 2019 Weyerhaeuser permit were
mirrored in the 2019 NORPAC permit as effluent benchmarks. A reasonable potential
analysis was conducted for the NDP permit in 2014 and Weyerhaeuser does not
persuade that further analysis was required when the permit was modified in 2019.
And, as mentioned above, pollutant specific limits are not the exclusive means of
compliance with water quality standards. Narrative limits and BMPs are WQBELs and
were included in the 2019 NDP permit. Further, it is CDID Ditch #3 that is subject to
water quality standards—not Weyerhaeuser’s system—and it is undisputed that a
reasonable potential analysis was done for discharges from outfalls 003B and 004B to
CDID Ditch #3.
Second, Weyerhaeuser points to Ecology’s recognition that the quality of
discharge from outfall 004B changed since the AKART report was completed in 2016.
But Ecology did not impose limits in the permits based solely on the AKART report. And
Ecology did what it was supposed to do when exceedances occurred, issue an order
with corrective actions based on its determination that industrial activity at the entire
Longview facility had reasonable potential to cause increased BOD5 and turbidity.
Third, Weyerhaeuser argues that the PCHB’s reliance on the AKART report is
erroneous. Weyerhaeuser points to the PCHB’s decision on issue 9 that the AKART
report did not contain information necessary to determine whether NORPAC’s outfalls
are substantially identical for monitoring purposes. But the fact that the AKART report
-18- No. 86114-0-I/19
does not include certain information specific to NORPAC’s outfalls does not make
reliance on the report erroneous. The purpose and focus of the AKART report was
whether discharge from outfalls 003B and 004B were meeting requirements—not
whether NORPAC’s outfalls were substantially identical. And discharges from
operations now owned by NDP and NORPAC were included in the AKART report. It is
logical that such a report is relevant to the reasonable potential analysis for violations of
water quality standards in CDID Ditch #3. Weyerhaeuser fails to persuade that the
PCHB erred by relying on the AKART report in deciding issues 5 and 7.
A reasonable potential analysis was done for the 2019 NDP permit in 2014. And
Ecology included effluent benchmarks in the 2019 NORPAC permit based, in part, on
the AKART report and, in part, on the limits set at outfalls 003B and 004B that were
determined by a reasonable potential analysis. Weyerhaeuser does not establish that
the PCHB acted arbitrarily or erroneously applied the law by determining that no further
reasonable potential analysis was required under the circumstances. We affirm the
PCHB’s summary judgment order on issues 5 and 7. 8
C
Weyerhaeuser argues the PCHB acted arbitrarily when it decided that the 2019
NORPAC permit contains adequate monitoring requirements to ensure discharge does
not cause or contribute to violation of water quality standards in CDID Ditch #3.
Weyerhaeuser points to the PCHB’s finding that NORPAC’s stormwater discharges
8 Intervenor NDP argues that the appeal and argument related to the 2019 NDP permit is moot
because the permit is expired and Ecology has issued a new permit; thus, this court cannot provide any effective relief. Because the PCHB’s decision regarding mootness is not before us, we do not reach the issue.
-19- No. 86114-0-I/20
were known and characterized in the AKART report as inconsistent with its ruling that
the AKART report failed to established adequate monitoring locations for NORPAC’s
Outfalls now classified as NORPAC outfalls 002A and 003A discharge into
Weyerhaeuser’s system and were not monitored under the previous permit. The
majority of NORPAC’s stormwater is discharged through 002A and 003A which flows
through Weyerhaeuser outfall 004B. Under the 2019 NORPAC permit, outfalls 002A
and 003A are subject to the same monitoring requirements as Weyerhaeuser’s outfall
004B into CDID Ditch #3, except Weyerhaeuser must also monitor flow. Some of the
stormwater from NORPAC discharges through smaller conveyance ditches or storm
drains to Weyerhaeuser’s outfall 004B. Ecology determined that the discharge at 002A
and 003A was representative of all NORPAC’s stormwater discharges based on similar
industrial activities, BMPs, and stormwater runoff characteristics.
Regardless of the unmonitored locations in NORPAC’s operations, the primary
discharge by NORPAC is monitored, as is the ultimate discharge to CDID Ditch #3.
NORPAC’s discharge is not new and it was included in the AKART report. Further, the
record shows that NORPAC’s operations were consistent with practices in place at the
time AKART was studied in 2016 and, since then, improvements were made as
required by the 2019 NORPAC permit. The PCHB’s reliance on the AKART report and
finding that the discharges were known and characterized in the AKART report is not
arbitrary.
Weyerhaeuser also argues that, even though NORPAC and Weyerhaeuser have
nearly identical monitoring requirements, the Board ignores a key difference that the
-20- No. 86114-0-I/21
2019 NORPAC permit allows minor unmonitored discharges. But it is not clear that
such a difference is “key” considering the discharges are minor, the majority of
discharge is monitored, and NORPAC is required to notify Weyerhaeuser of all
discharges that could cause violations at stormwater outfalls. And Weyerhaeuser does
not argue that Ecology acted arbitrarily or unlawfully when it decided that discharges
from 003A and 004A were representative of all NORPAC’s stormwater discharges.
Weyerhaeuser fails to show that the PCHB acted unreasonably or without regard
to the attending circumstances when it decided that monitoring requirements in the
2019 NORPAC permit were adequate to ensure stormwater discharge did not cause or
contribute to violations of water quality standards in CDID Ditch #3. We affirm the
PCHB’s summary judgment order on issue 8.
D
Lastly, Weyerhaeuser argues the penalty should be dismissed because it is
arbitrary and unlawful for Ecology to impose a penalty for exceedances that may be
caused or contributed to by NDP and NORPAC.
Because Weyerhaeuser agreed to dismiss issues 12 and 14 which asked
whether the violations occurred and whether the penalty was reasonable, those issues
are not before us. Thus, Weyerhaeuser’s only argument is that the penalty should be
dismissed because its permit is invalid. But Weyerhaeuser does not establish that its
permit is invalid. We affirm the PCHB’s ruling on issue 13.
In sum, the PCHB did not err by granting summary judgment in favor of Ecology
on issues 1, 2, 5, 7, 8, 10, and 13. We affirm.
-21- No. 86114-0-I/22
WE CONCUR:
-22-