LIA COMERFORD (OSB No. 141513)

Earthrise Law Center

Lewis & Clark Law School

10015 SW Terwilliger Blvd.

Portland, OR 97219

T: (503) 768-6823

F: (503) 768-6642

comerfordl@lclark.edu

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

NORTHWEST ENVIRONMENTAL

ADVOCATES, an Oregon nonprofit

corporation,

 Plaintiff,

 v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY and GINA

McCARTHY, in her official capacity as

Administrator of the United States

Environmental Protection Agency,

 Defendants.

Case No. 3:15-cv-01151

COMPLAINT

Administrative Procedure Act

(5 U.S.C. § 702)

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 1 of 18
COMPLAINT Page 2 of 18

INTRODUCTION

1. Plaintiff Northwest Environmental Advocates (“NWEA”) brings this action 

pursuant to the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 702 et 

seq., challenging the United States Environmental Protection Agency’s (“EPA”) and the EPA 

Administrator’s approval of Idaho’s water quality criteria for arsenic, established by that State 

and submitted for EPA review under section 303 of the Clean Water Act (“CWA”), 33 U.S.C. § 

1313. 

2. Arsenic is a highly toxic pollutant that can harm people at low concentrations. 

Studies have shown that exposure to or consumption of arsenic, in its inorganic form, can impair 

or damage almost every human function, including the nervous, cardiovascular, renal, and 

respiratory systems, and arsenic is a known human carcinogen, causing lung, urinary bladder, 

skin, and possibly liver, kidney, and prostate cancers. Arsenic is found throughout the surface 

and ground waters of the State of Idaho, often as a result of human land-disturbing activities such 

as metallic mining and ore processing, and people are exposed to this arsenic through the 

consumption of water and fish.

3. The CWA requires states to adopt, and EPA to review and approve or disapprove, 

water quality standards that, inter alia, “protect the public health and welfare [and] enhance the 

quality of water” in each state. 33 U.S.C. § 1313(c)(2)(A). EPA regulations explicitly require 

states to follow EPA guidance or “[o]ther scientifically defensible methods” when adopting 

numeric water quality criteria.1 40 C.F.R. § 131.11(b) (emphasis added). These directives 

 1 Water quality “criteria” are but one part of water quality “standards” under the CWA; 

criteria are defined by EPA as “elements of State water quality standards, expressed as 

constituent concentrations, levels, or narrative statements, representing a quality of water that 

supports a particular use.” 40 C.F.R. § 131.3; see also Nw. Envtl. Advocates v. U.S. E.P.A., 855 

F. Supp. 2d 1199, 1208-09 (D. Or. 2012). While the CWA requires EPA approval of state water 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 2 of 18
COMPLAINT Page 3 of 18

notwithstanding, in 2010 EPA impermissibly approved Idaho’s adoption of numeric water 

quality criteria for arsenic that were developed under a wholly separate regulatory regime—the 

federal Safe Drinking Water Act (“SDWA”)—without considering the relevant factors under the 

CWA, without employing a “scientifically defensible” methodology, and without determining

whether Idaho’s new arsenic criteria would actually protect human health, a designated use.

4. Moreover, EPA’s approval contradicts its own established policy against allowing 

states to use SDWA standards when they establish human health criteria pursuant to the CWA. 

EPA has long recognized that standards developed for SDWA purposes do not account for fish 

consumption or other pathways of human exposure, and take economic and other factors into 

account that are not permissible when setting water quality standards under the CWA. See, e.g., 

Memorandum from Martha G. Prothro, Director, EPA Office of Water Regulations and 

Standards, to Water Management Division Directors, EPA Regions I-IX (Nov. 3, 1999); 65 Fed. 

Reg. 66,444, 66,451 (Nov. 3, 2000). 

5. Notably, EPA’s national recommended water quality criteria for arsenic for the 

protection of human health are 0.14 μg/L (for consumption of fish only) and 0.018 μg/L (for 

consumption of both fish and water). However, Idaho adopted, and EPA approved, arsenic 

human health criteria of 10 μg/L (for both consumption of fish only and for consumption of both 

fish and water)—a level several orders of magnitude greater than EPA’s recommended criteria, 

but equal to the arsenic Maximum Contaminant Level (“MCL”) established by EPA under the 

SDWA.

 

quality standards in their entirety, including but not limited to numeric and narrative criteria, in 

this action NWEA challenges only EPA’s approval of Idaho’s numeric human health criteria for 

arsenic. 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 3 of 18
COMPLAINT Page 4 of 18

6. Because Idaho’s human health criteria for arsenic fail to satisfy the relevant 

statutory and regulatory requirements under the CWA, EPA’s approval of those criteria was

arbitrary, capricious, an abuse of discretion, and otherwise contrary to law within the meaning of 

the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). 

7. EPA’s arbitrary and capricious action has harmed and continues to harm NWEA’s

interest, and the interests of its members, in having clean and unpolluted waters in Idaho that are 

fit for human use, including fish consumption, and as habitat for aquatic and aquatic-dependent 

species. NWEA seeks declaratory, injunctive, and other appropriate relief on its own behalf and 

on behalf of these members.

JURISDICTION AND VENUE

8. The Court has subject matter jurisdiction pursuant to the APA, 5 U.S.C. §§ 701–

704, and the federal question statute, 28 U.S.C. § 1331. 

9. Venue in this district and division is proper pursuant to 28 U.S.C. § 1391(e)(1)(C)

and Local Rule 3-2 because no real property is involved in this action and plaintiff NWEA 

resides in this district and division. 

10. The relief requested herein is authorized by the APA, 5 U.S.C. § 706(2); the 

Equal Access to Justice Act, 28 U.S.C. § 2412; and 28 U.S.C. §§ 2201-02. 

PARTIES

11. Plaintiff NORTHWEST ENVIRONMENTAL ADVOCATES is a regional nonprofit environmental organization incorporated under the laws of Oregon, with its principal place 

of business in Portland, Oregon, located within Multnomah County. NWEA’s mission is to 

work through advocacy and education to protect and restore water and air quality, wetlands, and 

wildlife habitat in the Northwest.

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 4 of 18
COMPLAINT Page 5 of 18

12. Defendant UNITED STATES ENVIRONMENTAL PROTECTION AGENCY is 

an agency of the United States Government charged with oversight responsibility under the 

CWA. EPA’s oversight role includes supervision of state efforts to establish and implement 

water quality standards, and a duty to review and either approve or disapprove such statepromulgated standards.

13. Defendant GINA MCCARTHY is the Administrator of the EPA, and in that 

official capacity is required to take certain actions to oversee and implement the CWA, including 

the review and approval or disapproval of state-submitted water quality standards as well as the 

promulgation of replacement standards where necessary. 33 U.S.C. § 1313(c). 

LEGAL BACKGROUND

14. In 1972, Congress adopted amendments to the Clean Water Act in an effort “to 

restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 

U.S.C. § 1251(a). To that end, the CWA requires states to develop water quality standards that 

establish and protect the desired conditions of each waterway within the state’s regulatory 

jurisdiction. 33 U.S.C. § 1313(a). Water quality standards must be sufficient to “protect the 

public health or welfare, enhance the quality of water, and serve the purposes of” the CWA. 33 

U.S.C. § 1313(c)(2)(A). 

15. Water quality standards establish the water quality goals for a waterbody. 40 

C.F.R. § 131.2. Water quality standards are implemented, in part, through the issuance of permits 

to “point sources” of water pollution under the National Pollutant Discharge Elimination System

(“NPDES”). 33 U.S.C. § 1342. Without such an NPDES permit, any discharge of any pollutant 

from a point source to waters of the United States is unlawful. 33 U.S.C. §§ 1311(a), 1342(a)(1). 

All NPDES permits are required to include, among other provisions, effluent limitations or other 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 5 of 18
COMPLAINT Page 6 of 18

conditions that are “necessary to meet water quality standards.” 33 U.S.C. §§ 1311(b)(1)(C), 

1342. 

16. Water quality standards must include three elements: (1) one or more designated 

uses of a waterway; (2) numeric and narrative criteria specifying the water quality conditions, 

such as maximum amounts of toxic pollutants, maximum temperature levels, and the like that are 

necessary to protect the designated uses; and (3) an antidegradation policy that protects existing 

uses and ensures and that high quality waters will be maintained. 33 U.S.C. §§ 1313(c)(2), 

1313(d)(4)(B); 40 C.F.R. Part 131, Subpart B. For waters with multiple use designations, the 

criteria must support the most sensitive use. 40 C.F.R. § 131.11(a)(1). 

17. States are required to adopt water quality criteria that protect the designated uses

of a water body. 33 U.S.C. § 1313(c). Water quality criteria “must be based on sound scientific 

rationale and must contain sufficient parameters or constituents to protect the designated use.” 

40 C.F.R. § 131.11(a)(1). 

18. To guide the states, EPA publishes national recommended water quality criteria 

“accurately reflecting the latest scientific knowledge” on health effects, biological effects, and 

pollutant characteristics. 33 U.S.C. § 1314(a). States may base their new or revised water quality 

criteria on this EPA guidance, or they may use other “scientifically defensible methods” of 

establishing their criteria. 40 C.F.R. § 131.11(b).

19. EPA’s current national recommended human health criteria for arsenic developed 

under 33 U.S.C. § 1314(a) are 0.018 μg/L for the consumption of water + organisms, and 0.14 

μg/L for the consumption of organisms only. See EPA, National Recommended Water Quality 

Criteria, at http://water.epa.gov/scitech/swguidance/ standards/criteria/current/index.cfm. EPA 

notes that these criteria, published in 1992, are currently being reassessed. Id. at footnote M. 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 6 of 18
COMPLAINT Page 7 of 18

For example, the National Academy of Sciences has advised that “[c]onsideration should also be 

given to the growing evidence from human and animal studies that suggests that early-life 

exposure to arsenic may increase the risk of adverse health effects and the risk of impaired 

development in infancy and childhood and later in life.” National Academy of Sciences, Critical 

Aspects of EPA’s IRIS Assessment of Inorganic Arsenic: Interim Report (2013), at 6, available 

at http://www.nap.edu/catalog/18594/critical-aspects-of-epas-iris-assessment-of-inorganicarsenic-interim (accessed June 15, 2015). 

20. The CWA requires States to review and, where necessary, revise their water 

quality standards, including numeric and narrative criteria, at least every three years. 33 U.S.C. 

§ 1313(c)(1). Revised standards must be submitted to EPA for review, and only become effective 

for CWA purposes if and when EPA approves them. Id. § 1313(c)(1), (3); 40 C.F.R. § 131.5. 

21. EPA must review the submitted standards to determine whether the criteria meet 

the requirements of the CWA. 33 U.S.C. § 1313(c)(3); 40 C.F.R. § 131.5. Among other 

requirements, prior to approving a state water quality standard EPA must determine that the State 

has provided “[m]ethods used and analyses conducted to support [the] water quality standards 

revisions” and that the State’s criteria are “based on sound scientific rationale[.]” 40 C.F.R. §§

131.6(b), 131.5(a)(5).

22. Congress enacted the SDWA to ensure that public water supply systems meet 

minimum national standards for the protection of public health. 42 U.S.C. § 300f et seq. 

23. The SDWA requires EPA to promulgate a national primary drinking water 

regulation, including a maximum contaminant level (“MCL”) and maximum contaminant level 

goal (“MCLG”), for those contaminants that may have an adverse effect on the health of 

consumers. 42 U.S.C. § 300g-1. 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 7 of 18
COMPLAINT Page 8 of 18

24. An MCL is “the maximum permissible level of a contaminant in water which is 

delivered to any user of a public water system.” 42 U.S.C. § 300f(3). An MCLG, by contrast, is a

non-enforceable health-based goal, representing contaminant levels in drinking water below 

which there are no known or expected risks to health. 42 U.S.C. § 300g-1(b)(4). MCLs are set as 

close to MCLGs as feasible using the best available treatment technology and taking treatment 

costs into consideration. 42 U.S.C. § 300g-1(b)(3)(C). 

25. Arsenic is a regulated contaminant under the SDWA. EPA has promulgated an 

MCL of 10 μg/L, and a MCLG of zero (0 μg/L), for arsenic. 40 C.F.R. §§ 141.51(b), 

141.62(b)(16). 

26. EPA has a longstanding policy of discouraging states from blindly adopting 

SDWA MCLs as their human health water quality criteria for CWA purposes, especially where 

routes of human exposure other than drinking water—for example, consumption of fish—must 

be considered. See, e.g., EPA, Notice of Availability of Water Quality Criteria Documents, 45 

Fed. Reg. 79,318, 79,320 (Nov. 28, 1980) (explaining the important differences between MCLs 

developed under the SDWA and national recommended water quality criteria developed under 

section 304(a) of the CWA, 33 U.S.C. § 1314(a)).

27. In a February 28, 1985 guidance memorandum, EPA emphasized that states’ 

deviations from EPA’s national recommended water quality criteria were acceptable in 

appropriate circumstances, “but such deviations must have justifications which are scientifically 

defensible and adequately documented” and should “reflect the nature of the pollutant[.]” EPA 

Memorandum from Edwin L. Johnson to Water Division Directors (Feb. 28, 1985), at 1

(emphasis in original), available at http://water.epa.gov/ 

scitech/swguidance/standards/upload/1999_11_03_standards_criteriaselection.pdf. 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 8 of 18
COMPLAINT Page 9 of 18

28. In a November 3, 1999 guidance memorandum, EPA noted that certain states 

“have adopted inappropriate human health criteria (e.g., a maximum concentration limit (MCL) 

when fish ingestion is an important activity)” and that “[f]or the protection of public water 

supplies, EPA encourages the use of MCLs . . . [but when] fish ingestion is important, then the 

water quality criteria value developed under Section 304(a) of the Clean Water Act based on fish 

consumption should be used.” EPA Memorandum from Martha G. Prothro to Water 

Management Division Administrators (Nov. 3, 1999), at 1, available at 

http://water.epa.gov/scitech/swguidance/standards/

upload/1999_11_03_criteria_compliance.pdf. 

29. On November 3, 2000, EPA issued guidance on Revisions to the Methodology for 

Deriving Ambient Water Quality Criteria for the Protection of Human Health. 65 Fed. Reg. 

66,444 (Nov. 3, 2000). This Methodology provides that where EPA has published a 

recommended CWA § 304(a) criterion based on its 1980 methodology and “for which EPA has 

more recently promulgated an MCLG, EPA generally recommends . . . a criterion derived by 

recalculating the MCLG at an acceptable cancer risk level[.]” Id. at 66,450. It further provides 

that “EPA no longer recommends that an MCL be used where consideration of available 

treatment technology, costs, or availability of analytical methodologies has resulted in an MCL 

that is less protective than an MCLG.” Id. at 66,450–51.

FACTUAL BACKGROUND

Arsenic and its Effects on Human Health

30. Arsenic is a semi-metal element found in both organic and inorganic compounds. 

Arsenic occurs naturally in soil and in many kinds of rock, especially in minerals or ores that 

contain copper or lead. Arsenic is commonly released into the environment, including surface 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 9 of 18
COMPLAINT Page 10 of 18

waters and groundwater, through land-disturbing activities such as mining, ore crushing, waste 

rock storage and disposal, smelting, and burning coal.

31. EPA has designated arsenic and its compounds as “toxic pollutants” pursuant to 

CWA § 307(a)(1). 40 C.F.R. § 401.15.

32. In Idaho, releases of arsenic into the environment are often associated with past or 

present hard rock mining activities. Several former mines in Idaho are now listed or proposed for 

listing on EPA’s National Priorities List pursuant to the Comprehensive Environmental 

Response, Compensation, and Liability Act (“CERCLA”)2 or are being actively investigated and 

remediated by the EPA, in part because of their historic arsenic pollution of surface and 

groundwater or the ongoing threat of arsenic discharges to surface and groundwater. Examples 

include the Blackbird Mine in Lemhi County; the Eastern Michaud Flats Contamination 

Superfund Site near Pocatello, Idaho; the Conjecture Mine in Bonner County, Idaho; the 

Lakeview Mine in Bonner County; the Stibnite/Yellow Pine Mining Area in Valley County, 

Idaho; and the Talache Tailings Mine Site near Atlanta, Idaho. Additionally, the Atlanta Gold 

Mine, which is located near Montezuma Creek in the Boise River watershed, was recently held 

liable for violations of the Clean Water Act and ordered to pay a large civil penalty after it 

repeatedly violated its NPDES permit limits for arsenic, among other pollutants.

33. Exposure to arsenic can cause significant adverse effects to human health. See 

generally U.S. Dept. of Health & Human Services, Toxicological Profile for Arsenic (2007) 

(“Toxicological Profile”), available at http://www.atsdr.cdc.gov/toxprofiles/ tp2.pdf. Scientific 

studies have identified its adverse effects on virtually every human organ evaluated; for example, 

 2 The National Priorities List is EPA’s list of the most contaminated sites that warrant 

priority cleanup under CERCLA. See generally EPA, National Priorities List: Basic Information, 

at http://www.epa.gov/superfund/sites/npl/npl_hrs.htm.

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 10 of 18
COMPLAINT Page 11 of 18

oral exposure in humans can lead to peripheral vascular effects, including gangrene, and can 

result in increased incidence of high blood pressure, cardiovascular disease, and circulatory 

problems. Individuals exposed to arsenic in drinking water may also exhibit skin lesions and 

decreased lung function. Nausea, vomiting, and diarrhea are common symptoms in humans, 

resulting from irritation of the gastrointestinal tract following repeated oral exposure to low 

doses. Long-term, low-dose exposure can also lead to peripheral nerve damage, and studies have 

reported neurobehavioral alterations in children exposed to arsenic. A person’s risk for 

experiencing health effects from arsenic increases the longer that person is exposed. 

34. Arsenic is a known human carcinogen. Skin tumors are the most common type of 

cancer resulting from oral exposure, but epidemiological studies also indicate increased risk of 

internal tumors of the bladder, lung, liver, kidney, and prostate. Toxicological Profile at 6; see 

also EPA, “National Primary Drinking Water Regulations; Arsenic and Clarifications to 

Compliance and New Source Contaminants Monitoring,” 66 Fed. Reg. 6,976, 7,001–7,003(Jan. 

22, 2001).

35. People are exposed to arsenic by eating or drinking food or water containing 

arsenic, inhaling arsenic dust, or direct contact with arsenic. The likely primary route of human 

exposure to arsenic is through drinking water and consuming food, including fish.

36. The concentration of arsenic in fish tissue is an important driver of the risks 

associated with consuming toxic chemicals, including arsenic, present in Idaho’s waters. Aquatic 

organisms bioaccumulate arsenic—meaning the substance builds up and increases concentration 

in their bodies over time—when they are exposed to arsenic through the water or through their 

diet. 

37. Fish consumption is a use, for CWA purposes, throughout Idaho’s surface waters. 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 11 of 18
COMPLAINT Page 12 of 18

To protect that use, Idaho has adopted numeric water quality criteria for the consumption of 

“water and organisms” and “organisms only” for a wide range of toxic pollutants, including 

arsenic, that are applicable to nearly every surface water in the State. See Idaho Admin. Code § 

58.01.02.210.01(a)-(c) and Tables. In fact, Idaho’s use of an inadequate fish consumption level 

in revising its human health criteria for 88 toxic pollutants was the basis for EPA’s disapproval 

of those criteria in May 2012. Arsenic was not included in this disapproval, however, because 

Idaho’s arsenic criteria are not based on human fish consumption.

The Interests of NWEA’s Members

38. NWEA has members who reside near, visit, use and enjoy rivers, streams, and 

other surface waters, including wetlands, throughout the State of Idaho, including the Boise 

River, Salmon River, Snake River, and their many tributaries. These NWEA members regularly 

use and enjoy these waters and adjacent lands and have definite future plans to continue to use 

and enjoy these waters for recreational, subsistence, scientific, aesthetic, spiritual, commercial, 

conservation, educational, or other purposes. NWEA’s members derive benefits from their use 

and enjoyment of Idaho’s waters and the fish and aquatic-dependent wildlife that rely upon 

Idaho’s waters.

39. EPA’s approval of Idaho’s water quality standard for arsenic harms NWEA and 

its members because the criteria in that standard are not sufficiently protective of human health, 

and in particular do not account for potential exposure to arsenic via fish consumption. Some of 

NWEA’s members enjoy fishing in rivers and streams in Idaho that contain elevated 

concentrations of arsenic or are at risk of degradation from arsenic pollution, especially from 

mining activities. These members are reasonably concerned about their exposure to arsenic via 

consumption of fish; in fact, some of NWEA’s members have stopped or reduced eating the fish 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 12 of 18
COMPLAINT Page 13 of 18

they catch in some of Idaho’s waters because of their concern over potential exposure to elevated 

levels of arsenic.

40. EPA’s approval of Idaho’s water quality standard for arsenic is likely to result in 

the discharge of arsenic from NPDES-permitted facilities in concentrations greater than what 

would otherwise be allowed had EPA disapproved the Idaho arsenic standard and required the 

State to develop human health criteria consistent with EPA’s far more stringent national 

recommended human health criteria. These increased concentrations of arsenic in Idaho’s waters 

will further injure NWEA’s members by further exposing them to, or increasing the risk of their 

exposure to, arsenic through fish consumption, among other routes of exposure.

41. As a result of EPA’s arbitrary and capricious approval of Idaho’s arsenic water 

quality standard for the protection of human health, less protective standards are in use in Idaho 

than would otherwise be applicable, which adversely affects human health and aquatic and 

aquatic-dependent species. NWEA’s members would derive more benefit and enjoyment from 

their use of Idaho’s waters, including through fish consumption, and adjacent lands if they knew 

that Idaho’s arsenic standard was fully protective of human health, fish, and wildlife.

42. NWEA and its members have a specific interest in the full and proper 

implementation of the CWA, which was designed to protect our nation’s waters and the 

designated uses that depend upon the quality of those waters. EPA’s approval of Idaho’s water 

quality standard for arsenic harms NWEA and its members’ interests by decreasing the CWA’s 

protections for water bodies and the people who use them.

43. The above-described interests of NWEA and its members have been, are being, 

and, unless the relief requested herein is granted, will continue to be adversely affected by EPA’s 

approval of Idaho’s arsenic standard. The relief requested in this complaint will ensure that the 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 13 of 18
COMPLAINT Page 14 of 18

arsenic water quality criteria used and implemented in Idaho are scientifically defensible and 

sufficiently protective of human health.

Idaho’s Water Quality Standard for Arsenic

44. On December 22, 1992, EPA promulgated the National Toxics Rule (“NTR”), 

which established numeric toxic criteria for Idaho. 33 U.S.C. § 1313(c)(2)(B); 40 C.F.R. § 

131.36(b)(1). The NTR arsenic criteria for the protection of human health are 0.14 μg/L for 

consumption of fish only and 0.018 μg/L for consumption of both fish and water. The NTR 

criteria are identical to EPA’s current CWA section 304(a) recommended criteria for arsenic,

published in 1992, which are based on a one in a million risk of cancer and a fish consumption 

rate of 6.5 grams/day.

45. On August 24, 1994, Idaho adopted its own water quality standards by

incorporating the NTR into Idaho’s rules by reference. On June 25, 1996, EPA approved Idaho’s 

standards for toxics and subsequently withdrew Idaho from the NTR, effective November 10, 

1997. 62 Fed. Reg. 52,926 (Oct. 9, 1997).

46. Idaho subsequently weakened its CWA arsenic human health criteria by raising 

them more than a hundredfold to 50 μg/L, which was at the time the arsenic MCL for drinking 

water under the SDWA. On April 23, 1999, Idaho submitted its revised arsenic criteria to EPA 

for approval; EPA never acted on that submission, which under EPA regulations applicable at 

the time made it effective for CWA purposes. See 40 C.F.R. § 131.21(c)(1) (1999); 65 Fed. Reg. 

24,641, 24,642 (April 27, 2000).

47. On January 22, 2001, EPA finalized a rule that lowered the arsenic MCL from 50 

μg/L to 10 μg/L under the SDWA. 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 14 of 18
COMPLAINT Page 15 of 18

48. In 2010, Idaho again revised its CWA arsenic human health criteria by adopting 

EPA’s 10 μg/L MCL under the SDWA as the criteria for both consumption of water and fish and 

consumption of fish only. Idaho Admin. Code § 58.01.02.210(b). Idaho submitted its revised 

arsenic criteria to EPA for approval on June 21, 2010. 

49. Idaho’s 2010 revision to its arsenic human health criteria was not the result of a 

meaningful and CWA-compliant scientific process, but rather was a negotiated outcome to 

resolve pending litigation. As Idaho explained at the time:

EPA’s current recommended Clean Water Act 304(a) arsenic criteria for the 

protection of human health from exposure to arsenic due to drinking water and/or 

eating fish from surface water are much lower than the arsenic MCL of 10 μg/L. 

Nonetheless, EPA has approved the use of 10 μg/L as CWA criteria in many 

states around the country . . . It was agreed that if Idaho adopted and EPA 

approved an arsenic human health criterion of 10 ug/L for surface waters in 

Idaho . . . then [the plaintiff] would settle its complaint.

Idaho Department of Environmental Quality Memorandum, Justification: Idaho Rulemaking 

Docket 58-0102-0801, Arsenic Human Health Criteria & Low Limit on Hardness Used in 

Cadmium Aquatic Life Criteria Calculation (June 21, 2010), at 1.

50. By letter dated July 7, 2010, EPA formally approved Idaho’s June 21, 2010 

revisions to its arsenic human health criteria pursuant to EPA’s authorities and obligations under 

33 U.S.C. § 1313(c)(2) and 40 C.F.R. § 131.5. 

CLAIM FOR RELIEF

51. Plaintiff hereby realleges and incorporates by reference all of the preceding 

paragraphs. 

52. The CWA requires that water quality criteria be set at a level necessary to protect 

the designated uses of a waterbody and to enhance water quality. 33 U.S.C. § 1313(c)(2), 

(d)(4)(B); 40 C.F.R. Part 131, Subpart B. 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 15 of 18
COMPLAINT Page 16 of 18

53. EPA regulations state that water quality criteria “must be based on sound 

scientific rationale and must contain sufficient parameters or constituents to protect the 

designated use,” and must also be set at the level necessary to protect the most sensitive use. 40 

C.F.R. § 131.11(a)(1).

54. Before EPA may approve a state-promulgated water quality standard, it must 

determine that the state has provided “[m]ethods used and analyses conducted to support [the] 

water quality standards revisions” and that the state’s criteria are “based on sound scientific 

rationale[.]” 40 C.F.R. §§ 131.6(b), 131.5(a)(5).

55. The APA provides those who are “adversely affected or aggrieved” by an agency 

action a right to judicial review of that action. 5 U.S.C. § 702 et seq.

56. EPA’s July 7, 2010 approval of Idaho’s revised human health water quality 

criteria for arsenic is a final agency action for which there is no other adequate remedy in a court, 

and is therefore subject to judicial review under the APA, 5 U.S.C. § 704.

57. The APA provides that an agency’s action shall be held unlawful and set aside by 

a reviewing court if the agency’s findings are “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 

58. EPA’s July 7, 2010 approval of Idaho’s revised human health water quality 

criteria for arsenic was arbitrary, capricious, an abuse of discretion, and otherwise not in 

accordance with law within the meaning of the APA, 5 U.S.C. § 706(2)(A), for at least the 

following reasons:

(A) EPA’s approval was contrary to the CWA and its implementing regulation at 40 

C.F.R. § 131.5(a)(2) because EPA failed to determine whether—or incorrectly 

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 16 of 18
COMPLAINT Page 17 of 18

determined that—Idaho’s revised arsenic criteria protect the designated uses of 

Idaho’s waters;

(B) EPA’s approval was contrary to the CWA and its implementing regulation at 40 

C.F.R. § 131.5(a)(5) because EPA failed to determine whether—or incorrectly 

determined that—Idaho’s revised arsenic standard contained the minimum 

elements required by 40 C.F.R. § 131.6;

(C) EPA’s approval was contrary to the CWA and its implementing regulation at 40 

C.F.R. § 131.11 because Idaho’s revised arsenic criteria were neither “based on 

sound scientific rationale” nor based on EPA’s national recommended arsenic 

criteria or “[o]ther scientifically defensible methods;”

(D) EPA’s approval was arbitrary and capricious because it was counter to EPA’s 

longstanding policy against using SDWA MCLs as the human health criteria 

where fish consumption is a use, or where the MCL is less protective than the 

MCLG.

REQUEST FOR RELIEF

WHEREFORE, Plaintiff NWEA respectfully requests that this Court: 

1. Declare that EPA’s July 7, 2010 approval of Idaho’s human health criteria for arsenic 

was arbitrary, capricious, and contrary to law within the meaning of the APA, 5 

U.S.C. § 706(2)(A);

2. Hold unlawful and set aside EPA’s approval of Idaho’s arsenic water quality criteria;

3. Award Plaintiff its reasonable fees, costs, expenses, and disbursements, including 

attorneys’ fees, associated with this litigation; and

4. Grant such other and further relief as this Court deems just and proper.

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 17 of 18
COMPLAINT Page 18 of 18

DATED this 25th day of June, 2015.

Respectfully Submitted,

s/ Lia Comerford

Lia Comerford

Earthrise Law Center

Lewis & Clark Law School

10015 SW Terwilliger Blvd.

Portland, OR 97219

T: (503) 768-6823

F: (503) 768-6642

comerfordl@lclark.edu 

Attorney for Plaintiff

Case 3:15-cv-01151-HZ Document 1 Filed 06/25/15 Page 18 of 18