Clean Water SoCal and the Central Valley Clean Water Association wanted a temporary stop to Tests of Significant Toxicity.
By Alan Riquelmy, Courthouse News Service
Two associations that represent the interests of wastewater treatment and water reclamation plant operators are unlikely to succeed on their claims challenging the federal government’s approval of California’s new water quality standards, a federal judge in the state ruled Monday.
On May 22, Clean Water SoCal and the Central Valley Clean Water Association — groups with member agencies that own and operate wastewater treatment and water reclamation plants — sued the U.S. Environmental Protection Agency and Tomas Torres, director of EPA’s Region IX, over the approval of California’s new water toxicity provisions. The defendants had granted final approval of the provisions — which are aimed at improving protections for aquatic life and apply to inland surface waters, enclosed bays and estuaries and coastal lagoons — earlier that month.
The plaintiffs, who claimed the EPA’s approval violated the Administrative Procedures Act and various statutes and regulations required to implement the Clean Water Act, specifically have an issue with the state’s new requirement that water toxicity testing use a data analysis approach known as the Test of Significant Toxicity.
U.S. District Court Senior Judge William Shubb on Monday heard arguments in the case, and issued a ruling a few hours later denying the plaintiffs’ request for a preliminary injunction saying the water associations failed to show they would likely suffer irreparable harm without the injunction or ultimately succeed on the merits of their claims.
Shubb noted the plaintiffs’ attorneys said it would take about two to three months to prepare their arguments on the merits of the case.
“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,” the judge wrote.
The Clean Water Act requires entities that discharge pollutants into any body of water in the U.S. to have a permit, and states must set limitations on the amount of pollutants such permit-holders may discharge. Some permit-holders also have to pass what’s called a “whole effluent toxicity” or WET test, the results of which must be analyzed through a statistical analysis. The Test of Significant Toxicity method “presumes that a sample is toxic absent significant evidence to the contrary,” according to Shubb’s ruling.
Shubb found fault with the plaintiff’s argument that the Test of Significant Toxicity (TST) is flawed because it assumes water is toxic and testing must remove that assumption.
“The TST method’s presumption of toxicity is an analytical hypothesis, not a factual statement that all water is in fact toxic,” the judge wrote.
Attorney Monica Browner, representing the water associations, said the test could lead to reputationall harm, and that the plaintiffs want to return to the 2002 standards that were used until this year.
“Plaintiffs’ motion merely seeks to maintain the status quo,” Browner said.
U.S. Attorney Chi Soo Kim, representing the plaintiffs, said Browner provided no evidence of reputational harm. Instead, Kim said that Browner’s arguments to the judge consisted of many “could-be’s” and “maybes.”
“Plaintiffs’ statements and arguments are not backed up by science,” Kim said.
“Harm is not here and it’s not imminent as well,” she added.
The Test of Significant Toxicity methodology has existed for years. The water organizations could have already used it to uncover information about any potential harm they cause, but they didn’t, Kim said.
Shubb noted in his ruling that the California State Water Board has been issuing permits that require the Test of Significant Toxicity since 2012.
“Absent a showing that criminal or civil actions are imminent or likely to occur, any harm is speculative and not immediate,” he wrote.
Shubb added that the plaintiffs were also unlikely to succeed on the merits of their claims because, although EPA regulations do not specifically list the Text of Significant Toxicity as a method of statistical analysis, the agency notes that the listed methods are not the only possible methods that can be used. Moreover, Shubb notes, the state was not required to rely on EPA’s promulgated rules as opposed to its guidance documents when it adopted the Test of Significant Toxicity.
“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,” Shubb wrote.
This article was originally published at the Courthouse News Service.
