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Southern California Alliance of Publicly Owned Treatment Works v. EPA


Southern California Alliance of Publicly Owned Treatment Works v. EPA, Eastern District of California (Case No. 2:14-cv-01513)

On November 5, 2015, NACWA filed an amicus curiae brief icon-pdf in pending litigation in federal district court on the application of certain testing requirements for whole effluent toxicity ("WET"). NACWA has been closely tracking the issue being contested in this litigation since 2010.

Use of the Test of Significant Toxicity (TST) to evaluate WET tests was first contemplated at the national level in 2010 when EPA's Office of Wastewater Management released a draft guidance for informal review.  While EPA did not seek official comment on the document, NACWA and several other stakeholders provided EPA with detailed comments outlining significant concerns with the TST.  Since that time, EPA Headquarters has provided no additional information on the TST for public review and has done nothing to address the significant concerns raised by stakeholders in 2010.

Despite the fact that EPA has issued no further guidance on the TST and has failed to seek formal public comment on the procedure in accordance with the Administrative Procedure Act (APA), EPA Region 9 has continued to push for its use in permits, particularly in California.  As a result, NACWA has been closely following the developments in California for several years.  At the request of Member Agency the Sanitation Districts of Los Angeles County (LACSD), in January 2015, NACWA provided comments to the Los Angeles Regional Water Quality Control Board on the Tentative Permit for LACSD's San Jose Creek Water Reclamation Plant, which included use of the TST.  NACWA's comments on the permit underscored the flaws in the TST and the fact that it has never been officially proposed for inclusion as a part of the WET test methods at 40 CFR Part 136.  NACWA also raised concern with the permit's proposed prohibition on conducting five concentration tests (as currently required in 40 CFR Part 136) and dose-response evaluations when using the TST, further compounding the flaws in the TST.  Instead, the state was limiting LACSD to two test concentrations.

Recognizing their vulnerability in using the TST and specifically a two concentration TST test in Clean Water Act permits, EPA Region 9 suggested to the California State Water Resources Control Board that it seek approval for use of the TST through the EPA Alternative Test Procedure (ATP) process.  EPA Region 9 granted this ATP in March of 2014.  This procedural end-run was the target of the original complaint filed by SCAP.  The ATP in question was ultimately withdrawn for procedural reasons and the case determined moot.  At the time, NACWA decided not to engage in the case given its limited focus on the ATP issue.

However, documents uncovered through a Freedom of Information Act (FOIA) request filed by the Southern California Alliance of Publicly Owned Treatment Works (SCAP) brought new, relevant facts to light and a Motion for Reconsideration was filed with the court.  The order granting the motion for reconsideration raises the more fundamental question of whether the TST is an approved Part 136 method that can be utilized in a National Pollutant Discharge Elimination System (NPDES) permits – a question that is relevant for dischargers nationwide.

NACWA's Involvement
NACWA's brief challenges both the use of TST to evaluate WET and the ability of EPA to indirectly impose requirements on dischargers by pressuring state agencies to adopt the Agency's desired policies without going through the rulemaking process required by the APA.

This litigation presents an excellent opportunity for NACWA to raise concerns about the use of the TST and advance one of its principal goals of pushing back against inappropriate EPA influence in state permitting activities, as well as to weigh in on litigation that has potential nationwide implications.


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