Washington Supreme Court Affirms Ecology's Authority To Bypass Rulemaking When Requiring New PCB Sampling Methods Under CWA Permits

The Washington State Supreme Court agreed with the Department of Ecology in a dispute over whether Ecology should have followed notice and comment rulemaking procedures when adding two new controversial test methods for polychlorinated biphenyls (PCBs) to the state Water Quality Program Permit Writer's Manual (Manual). Ecology relies heavily on the Manual to establish requirements in NPDES permits. The court concluded that because Ecology retained discretion in determining testing methods for permits, the updates to the Manual did not constitute improper rulemaking despite the significance and impact of these test methods on dischargers.

The court's decision may embolden Washington agencies to seek to regulate businesses by issuing "guidance" documents, rather than following rulemaking processes, which offer public engagement and allow for meaningful opportunities for public comment.On the other hand, where facility-specific issues warrant deviations from the