court my name is melissa norm and i'm here today representing the petitioner which is the southern california alliance of publicly owned treatment works or scap for short because of very long name i like to request five minutes for rebuttal to use a much o'clock scap is a trade association that represents cities and sanitation districts that serve the important public service of treating millions of gallons of waste water every day and that water is used to supplement water bodies in southern california that otherwise would be dry much of the year that the rain event and also recharge groundwater the issue before the court today is a september fo and fourteen formal objection by the e p a that forced the changing of terms into draft permits for scout members to add new f won't limitations for chronic toxicity that were both numeric and daily inform which are inconsistent with the requirements of e p a regulations so to give you a little background on toxicity there are two forms of toxicity one is acute talks to see which means something is short term deadly kills little critters that are part of the test chronic toxicity is a long term task forty nine days that you subject the little critters to various levels of affluent in the water and a control which is essentially clean water and you determine whether they grow or reproduce at the levels that you're expecting them it's not a chemical test it's a biological task that you know little critters can have different effects based on how their bodies are set up just like if someone drinks four glasses of tequila it might not have any effect on one person and somebody else might be under the table so these are biological critters and things can register as talk sick even though it has nothing to do with toxicity one example would be if the temperature was off in the laboratory it could cause them to not grow reproduce as quickly or if  something is irritating them like i've heard stories of the lab creatures being on a shelf next to a door and every time the door slams it makes them upset and they don't grow or reproduce as much but it doesn't have anything to do with toxicity so there ha challenges to toxicity tests in the past that edison electric company which was cited in our graves was one of those cases that challenge the two thousand and two regulations that regulated toxicity and the court in that case warned against having a single sample be something that you could enforce against in this case you have a daily maximum limit that is a single sample that would be enforceable so a little bit on the permit history here in two thousand and two there were permits that were issued by the los angeles regional board that included chronic toxicity limits that were both numeric and daily those were a challenge to the state the state board  issued a decision in two thousand and three that invalidated those limits and sent them back to the regional board and the state board's decision is in p r zero seven one three of the record and in that case they said that they were going to adopt the context as the policy that would deal with these issues eventual a but at this point a narrative f won't limit for toxicity that said no chronic toxicity in the affluent would be the f won't limit that would be required in all permits throughout the state and there have been various permit appeals where permits did not have that in it and it has been put in subsequently so there is an affluent limit e p a didn't like that it was in a section of the graph permit though talked about toxicity triggers but there was a definite limit in that toxicity triggers the two thousand and three permits were reissued in accordance with the state board or not challenge those permits at all in two thousand and seven on separate permits e p a sent a letter which is p r zero seven eight one that said that's fine to have a numeric and have a narrative limit but you just have to make sure that certain other aspects are covered and that was covered in the state courts order in two thousand and nine her mitts for these two treatment plants with your narrows and kimono were issued e p a did not object to those permits or vetoed the perm so the first time that we heard from e p a was eleven years later in twenty or teen when draft permits were issued by the regional water board that were consistent with the state boards order and state board orders are presidential there binding upon the water regional water board state she permits consistent with say four hours and e p a objectives of those permits saying that they were inconsistent with federal rules that the federal rules that they cite they are reading words into those rules that don't exist for example they're saying you have to have a numeric met when the section that they're citing to does not require a numeric limit and there's been several cases that we cited in our brief including the c b e case that ruled that there is no requirement for a numeric limitation they also cite to the fact that it needs to have a daily limitation which is not required in fact did you raise these objections to the original board yes it did the original board except your objections no and they explain court said you don't need this seemingly irrational bifurcated review between the two that your real question is the objection that was what started the case behind that was a and say we disagree with you they might have had some further exchange of of views on that or the board might be regional board might simply have said we think you've read your regulations wrong and we don't think that's what it requires us to do and we declined to do it and you then you wouldn't be here but once the board once the board the regional board acquiesced and that becomes the decision of the regional board and you have a remedy within state law we don't have a remedy within state law because if we went to state court state administrative bodies and these regulations as easily as we can why isn't this their responsibility rather than ours at this point well i do believe the crown since then is still binding and good law even once the e p a assumes responsibility for itself and then you can appeal e p a s decision to this court but as long as the state board is adopting the final decision it's that it's that the state's decision not to e p a s decision reason why they were changed was because of e p a reason or maybe they thought it was correct they've been told before that day their regional board had been told before in state court that daily maximum what happens in federal agencies and have the first instant sure what you get when you have a final when you have a final decision from u p a it's not a letter it's got to be an order of some kind not when it's a problem of an apple limitations that was latest city's case they overturned letters that were sent to congress that promulgated effluent limitations for both blending and mixing zones and in that case the court said they're probably gaining an apple limitation and and telling through guidance essentially you have to follow this rule and so i'm liable to guess it is they invalidated those letters those letters are essentially the same as the objection letter that says this is the rule and you need to follow it and water quality objective that you're trying to meet the water quality objective says that it should be no chronic toxicity in ambient waters outside of a mixing zone so that means after the water's discharge from  with other water and you just have to make sure there's no chronic toxicity outside of that in the findings by the regional board they said there is no t m d l and luckily you had a case about team deals right there before this so you understand what those are there is no team the others no impairment for chronic toxicity so there's really no necessity in fact they took the acute toxicity limits out of this permit altogether because there is no chronic tucker the in the receiving water there's really no necessity for a permit limit for chronic toxicity at all and the fact  narrative requires chronic toxicity to be met in the affluent before it reaches the ambient waters that means it's much more stringent than the water quality standard plus the water quality standard itself s absolute limits for specific toxicants can be established by the regional board to control toxicity identified under the toxicity identification of valuation and that was the way these permits were set up if you had a hit and you triggered toxicity you would go to make sure that hit was real number one and if it's real then you do a toxicity identification of valuation to figure out what is causing that toxicity because you can't control it until you know what it is so once you know what it is say it's copper for example then you could give an affluent limit for copper so the basin plan actually set it up the same way and he is saying it's not stringent enough to meet the water quality standard well that's the way the water quality standards set it up in the first place and we challenge the e p a is approval of that water quality standard back in two thousand and two and it was overturned for not saying how they were going to translate that narrative state administrative process is not adequate to address this question well number one there's no exhaustion requirement for this kind of a case and we think it would be futile anyway because even if i want to i'm sorry i don't is that why did why the no exhaustion require i think you do within you you have you presently have an appeal pending before the state before the state is the state administrative board right and you have an appeal right to a california court from there yes ok so you have you have you have at least two more steps to go in within  california system right but we believe it would be futile because if the state board or the state court turned the permits back to what they were in the the draft permits that we wanted then e p a could just object by and we've got right back here and that that's ok but that at that point it would be e p a s responsibility not the regional not to the regional boards it's right now the actor here is the is the regional board they have responsibility they're the ones w order but we're not challenge challenging the permit here we're challenging the objection here so the only way we can travel into the objection is illegal guidant private letters letters he letters are not letters are not final orders they are they can be final agency action if in the eye league of cities casey said that is the final word they are now saying this is the rule it's an unprobable gaited rule it didn't go through notice and comment they're changing what's in the federal regulations the federal regulations say only monthly average and weekly average limits for period of use it's very clear they're changing that rule it's very clearly you have to have a limitation if you're have reasonable potential to exceed a water quality standard doesn't say anywhere in there that has to be numeric so they are changing the rules and where they change the rules we have the ability to challenge e v g a at the beginning we're not challenging the permits here w there was a draft permit an e p a objection the state then went through notice and comment and chose to issue a final permit the permit to use are dissatisfied with the permit terms they have a right to the administrative review which they have stayed on the state level and they have the right to go to the california state court but what has been to the what is that what is the history of of california administrative appeals and would have had the option of participating for the state as an advocate but they're not a party to the state proceeding if the california state court came out with a decision that require different permit terms then the state board would have to incorporate those terms into a new permit e p a would have the discretionary option at that point to make a new objection in which case of course the regional board could no longer accept the badly misconstrued its own regulations or that it was adopting standards that had not promulgated pursuant to the minister and procedure act how do they how do they get how do they get review of that in federal court i don't believe they can get that in federal court unless the state system says e p a is wrong and e p a then issues the other objection and goes through its own procedures because at this point neither  hearing a before you yes so what regulation is that under which they could it is in my brief and it's part of section one twenty four so there's a c f r section that we could look at yes verify that yes and see that the thing that's beginning to bother me that what i'm hearing and i think possibly other people as well is this notion that the change that's sort of the suggestion that we're getting well that is scab suggestion first we disagree with it because we don't believe it is a new concept the e p a rules in effect  did you want us to weigh in on that question on the question of whether the rules are right whether e p a is correctly interpreted the clean water act and its regulations at this point in this context now if the p a had taken over the permit if the stated refused to modify it and it had gone through e p a s permanent process including the appeal to the environmental peals board which this court has said is the final word on any p a permit decision  then yes this court would be the appropriate place for a final decision on whether e p a had properly attendance rules what we have here is a state permit with issues or just with term set by the state they can raise these arguments to the state court and we thought if if if scout argued that there was procedural error by e p a that is th had effectively promulgated new standards that it may never it had never undertaken before and it was obligated to follow notice and comment procedures and it failed to do that it simply issued a letter so i would it had avoided all of the public comment which would have allowed for appeal to an appropriate court of appeals and so forth there remedy at this point is still to argue even the procedural error much less any substantive error to the in the california system yes that is what we believe what we do with the i will leave the cities congressman explaining e p a s interpretation of statute regulations the court or the court in iowa city said that was final regardless of the vehicle that it was ensconced in but this case is different because what we're dealing with here is a very specific statutory scheme created by congress to balance the issues of the state and federal authorities over these permits congress intended that the states once authorized would be the driving force with the primary responsibility but they gave p a a this right discretionary right issue an objection and potentially  what the state did take over the permit by definition under that statute this is an interim step when the objection comes out nobody knows what's going to happen what is the state going to do what makes its decision whether it's going to continue to maintain the objection or not and then the state if the p a says yes the state then makes a decision whether to modify the permit or to have e p a take responsibility and start its own permitting procedures so basically what happens once the objection comes out and is reaffirmed the permit goes off on one of two tracks either it my posing counsel said that in her experience the state board would never refused to go along with the p s a i think that is by far an overstatement certainly there is one case that we've cited champion international was not california it was north carolina but they refused to modify the permit you know i can't guess what a state agency is going to do you know i'm just trying to understand the procedure i ask you to do that after that i mean that's just that's the result of the way the statute was set out and this court in the shall case noted that the court should be very lo to think that there is a basis for federal authorities to be coercing states so that the state regulators are exercising their individual judgment as to what is required under these permits and the term coersion you know here nothing happens to the state agency except that the permanent  that makes it different from some of the cases that have been cited to support the idea of coercion such as bennett the spear because you had cases there where the fish and wildlife service issued a biological opinion and if the other agencies did not follow that opinion they were liable for enforcement and that was deemed coercion because who wants to take on the risk of federal enforcement by other people now here there is no coercive authority against the state they make a decision except this perm feels that feels pretty awkward i agree that it is awkward but it's the consequence of congress's decision to maintain a role for that the states would have named role but e p a would have this objection authority and it is to some extent cumbersome but it's a result of how the statute was set up and it also avoids the complexity of having this court be ruling on an interim step and then have a state court be ruling on a final step and that can get complicated in many issues because you know here we're focusing on one particular point but a permit involves a lot of terms so you think could wind up where the person is asking the federal court to address one term and then later coming back to the state court to argue a bunch of other terms that were not the subject of any p a objection but nonetheless are included in the permit so you wind up with a complexity of overlapping jurisdictions there and that's inconsistent with the court's decision  administering this program the state is the dominant actor and e p a has one narrow discretionary function in addition to their general oversight on they sit down and meet with the state variadic lee to do a general permit review and actually as noted in the objection letter itself e p a has been raising this very issue with the state board in its two thousand and eight review and the draft two thousand and the state board in its discretion decided to modify the permit and now the state authorities once the stay is lifted if it is it expires in twenty seventeen will go ahead and whether or not the permit terms are skeptical under both federal and state law because there is also the side issue that state law may exceed federal law and a condition that may not survive under federal law may survive under state law i don't know if that would be here but that's certainly a possibility in some cases so that's our main point is that there's a state com argument over the terms of the state permit and the state authorities have full capability to sort that out at the end of the day with respect to the actual permit terms if the court should reach those we believe e p a s decision is explained thoroughly in the objection letter as to why the particular permit terms in the draft hermance were not adequate there has to be a first everyone agrees that there has to be an affluent limitation because the discharge from these plants h reasonable potential to cause exceeds of the water quality standard that's in effect the debate over whether there is a need for a numerical and that is not been presented accurately the e p a regulations say there should be a numerical limit unless it's infeasible and there is an argument then e p a says in the fusible to calculate the titian or say that it may be infeasible to implement but in either case there hasn't been any evidence produced in the record to show that it would be infeasible under either standard there are other plants in california and in other states that function with you merrick limits and there is no show no showing that such limits would be infeasible here regardless of how you applied that standard it's also this is not a new concept i would point you back to the decision from two thousand and twelve that petitioners say or is presidential here from the state water board and in that very decision they said numerical effluent limitations are generally preferred and yes permits can legally contain best management per practices in lieu of numerical imitation where the permanent authority determines that numerical limitations are quote not feasible so this is not a new problem again this is what has always been then i do have a few more minutes so i would like to swing back to the specific jurisdictional questions both the constitutional and  statutory the constitutional we believe there is no standing because the injury to the extent there is one was inflicted by the state board's decision we believe it cannot be remedied by this court because this court does not have the authority to order the state to change its permanent decision at most this would be i mean it would obviously be persuasive to the state but it could not be a legally compelling requirement that it be changed so we don't believe it stand that there is standing to go forward we don't believe that there is a statutory basis for the claim either the claim under one f which permits the court to review the grantor denial of a permit was the crown simpson holding was changed by the one nine hundred seventy seven amendment and that's been explained in detail in both the american paper institute decision out of the seventh circuit and the champion ship decision out of it believe it was the fourth circuit but that cited here and they did a careful par sing of the legislative history to show that congress's intent was to effectively undo the crown simpson holding so that an e p a objection would not deny or perm but would simply at most send it off to a different permanent process and with respect to the subpart argument we believe that that was resolved by this court in the portion of crown simpson that so i just wanted to hit on some of the issues that came up one was about requesting a public hearing in california we have a memorandum of understanding between the state water boards and e p a and in that memorandum of understanding it says only the state water board or the regional water boards can request a hearing so it's different from the federal rule my understanding is that when you have a state specific memorandum agreement that that controls and that agreement is that p e r zero nine five six if you wanted to take a look at that one of the biggest questions i have is why was this objection on the record now eleven years after the rules had changed in california about how product toxicity should be regulated there's been eleven years of permits throughout the state that had the same exact layout of this the draft permits they had a trigger so if you hit a numeric trigger that you would do more testing it has toxicity reduction evaluation to figure out if you can reduce the things causing toxicity there is extensive monitoring requirements there's also a receiving water objective that says that the receiving water can't have chronic toxicity in it and there's a re the permit to allow the water board if you figured out what the toxic pollutant was that was causing toxicity to come back into place so water quality is being protected even with a draft permit so it's really unclear why e p a was making th not an acute talk system problem so the state board order was what the regional board was following to try to have a permit that was valid it's even the functional equivalent of a denial and e p a in a brief as recently as two thousand and seven was citing to crown simpson so in an infinite three of our reply we did raise the issue of judicial stop that they should not be able to raise that separately then there's the separate authority under five hundred ninety one easy which is where they probably get a new app woman as i walked you through it's very clear what the regulation say as to what limits are required and if he is probably getting something different they should go through a notice and comment public review process if they want to make things numeric they want to make have daily max limits that's not what the rules say right now that's fine if they want to go through a public comment period and adopt those rules but that shouldn't be done in a letter objecting to a permit which is now the law of the land in this region