City of Burbank v. State Bd.
| Decision Date | 14 August 2003 |
| Docket Number | No. B150912.,No. B151175.,No. B152562.,B150912.,B151175.,B152562. |
| Citation | 4 Cal.Rptr.3d 27,111 Cal.App.4th 245 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CITY OF BURBANK, Plaintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Appellants. City of Los Angeles, Plaintiff and Appellant, v. State Water Resources Control Board et al., Defendants and Appellants. |
Attorney; Downey, Brand, Seymour & Rohwer, Melissa A. Thorme, Jeffrey S. Galvin, Nicole E. Bader-Granquist and Cassandra Ferrannini, Sacramento, for Plaintiff and Appellant City of Los Angeles.
In two separate actions, City of Burbank and City of Los Angeles challenged effluent limitations in wastewater discharge permits issued by California Regional Water Quality Control Board for the Los Angeles Region (Regional Board). The trial court set aside the permits and directed Regional Board to issue new permits in accordance with certain instructions. Regional Board and State Water Resources Control Board (State Board) (collectively Water Boards) appeal the judgments, contending that some of the instructions do not comply with the federal Clean Water Act or the state Porter-Cologne Water Quality Control Act.
We conclude that effluent limitations in the permits must ensure compliance with state water quality standards, and that in establishing permit effluent limitations Regional Board need not consider the economic burden imposed on the discharger or weigh the cost of compliance against the environmental benefits. We find that title 33 United States Code section 1311(b)(1)(C) did not sunset in 1977 and continues to be good law. We also conclude that some of the other requirements imposed by the trial court are erroneous.
Burbank and Los Angeles appeal postjudgment orders denying their motions for attorney fees under Code of Civil Procedure section 1021.5. We dismiss the appeals as moot. In the interest of judicial economy and to guide the trial court on remand, however, we address the principal legal issue presented in the appeals. We conclude that a public entity can recover attorney fees under the statute only if the public entity's litigation costs are disproportionate to the public entity's interests at stake.
Burbank owns and operates a publicly owned treatment works called the Burbank Water Reclamation Plant, which treats wastewater from municipal sources. Some of the treated wastewater is discharged to the Burbank Western Wash, which drains into the Los Angeles River, a water of the United States.
Los Angeles owns and operates a publicly owned treatment works called the Donald C. Tillman Water Reclamation Plant and jointly owns, together with City of Glendale, a publicly owned treatment works called the Los Angeles-Glendale Water Reclamation Plant. Both plants treat wastewater from municipal sources and discharge some of the treated wastewater into the Los Angeles River.
Regional Board issued a permit in July 1998 governing wastewater discharge from the Burbank plant. The permit, designated Order 98-052 and NPDES Permit CA0055531, imposes numerical effluent limitations on the discharge of certain pollutants, in addition to other restrictions. Regional Board issued a separate Time Schedule Order in September 1998 allowing delayed compliance with certain effluent limitations and establishing interim limitations.
Regional Board also issued permits in July 1998 governing wastewater discharge from the two Los Angeles plants. The permits, designated Orders 98-047 and 98-046 and NPDES Permits CA0056227 and CA0053953, impose numerical effluent limitations on the discharge of certain pollutants, in addition to other restrictions. Regional Board issued separate Time Schedule Orders in September 1998 allowing delayed compliance with certain effluent limitations and establishing interim limitations.
Burbank and Los Angeles both appealed to State Board to review the permits and Time Schedule Orders. State Board declined review.
Burbank filed a petition for writ of mandate in the superior court in December 1999 challenging certain permit provisions, and filed an amended petition in March 2000. Los Angeles filed a petition for writ of mandate in the superior court in December 1999 and filed an amended petition in January 2000. The superior court granted the petitions and entered judgments setting aside the permits and directing Regional Board to issue new permits in accordance with the court's statements of decision.
The superior court stated in the statements of decision that in establishing effluent limitations for a permit, Regional Board must consider the economic cost of compliance with those limitations. The superior court stated further that the cost of compliance must be reasonable in light of the environmental benefit. The superior court concluded that in establishing effluent limitations, Regional Board must consider "potential environmental impacts, alternatives to the proposed requirements, and mitigation measures for any requirements adopted"; that the schedule of compliance must be part of the permit rather than a separate order; and that the narrative toxicity objective of Regional Board's water quality control plan provides insufficient information as to how Regional Board will regulate discharges based on the narrative criteria, and therefore violates a federal regulation (40 CFR § 131.11(a)(2)). The superior court also concluded that Regional Board must comply with rulemaking requirements of the Administrative Procedures Act (Gov.Code, § 11340 et seq.) when imposing permit conditions to implement the narrative toxicity objective.
The trial court also sustained the petitions on the grounds that Regional Board failed to adequately show how numerical permit effluent limitations were derived from the narrative criteria; that adequate findings and evidence in the administrative record do not support the effluent limitations; that the permits improperly impose daily maximum limits rather than average weekly and average monthly limits; and that the permits improperly specify the manner of compliance. Water Boards do not challenge this latter group of rulings on appeal and acknowledge that they must issue new permits in compliance with these rulings.
Burbank and Los Angeles each moved for an award of attorney fees under Code of Civil Procedure section 1021.5. The trial court denied the motions on the ground that the cities' litigation costs were not disproportionate to the cities' pecuniary interests at stake, and on other grounds.
We have consolidated for oral argument and consideration in one opinion Water Board's appeals from the two judgments and Burbank's and Los Angeles's appeals from the orders denying attorney fees.
Water Boards contend that (1) effluent limitations imposed in the permits must be designed to attain water quality standards without regard to the economic cost of permit compliance, and Regional Board need not perform an individualized cost/benefit analysis to justify permit effluent limitations; (2) Regional Board need not consider "potential environmental impacts alternatives to the proposed requirements, and mitigation measures for any requirements adopted" in establishing permit effluent limitations; (3) the permits cannot allow delayed compliance with effluent limitations for certain pollutants; (4) the narrative toxicity objective of Regional Board's water quality control plan provides sufficient information as to how Regional Board will regulate discharges based on the narrative criteria; and that (5) Regional Board need not comply with rulemaking requirements of the Administrative Procedures Act when imposing permit conditions to implement the narrative toxicity objective.
Burbank and Los Angeles dispute these contentions and contend that a public entity need not show that its litigation costs are disproportionate to its interests at stake in order to recover attorney fees under Code of Civil Procedure section 1021.5.
The United States Congress enacted the Clean Water Act in 1972 as amendments to the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.). (Pub.L. No. 92-500 (Oct. 18, 1972) 86 Stat. 816.) The Federal Water Pollution Control Act now is commonly known as the Clean Water Act. The objective of the Clean Water Act is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (33 U.S.C. § 1251(a).) To achieve this objective, the act establishes "the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." (Id., § 1251(a)(1).)
The Clean Water Act requires individual polluters to minimize effluent discharge. "Point sources," meaning pipes and other discrete conveyances from which pollutants may be discharged, are subject to "effluent limitations," meaning restrictions on the discharge of pollutants. (33 U.S.C. § 1362(11), (14).)
The Clean Water Act establishes technology-based standards for effluent limitations and authorizes the Environmental Protection Agency (EPA) to establish uniform effluent limitations consistent with the statutory standards for categories and classes of point sources. (E.I. du Pont de Nemours & Co. v....
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