Communities for Better Env. V. State Bd.

• Decision Date: 30 May 2003
• Docket Number: No. A100327.,A100327.
• Citation: 1 Cal.Rptr.3d 76,109 Cal.App.4th 1089
• Court: California Court of Appeals Court of Appeals
• Parties: COMMUNITIES FOR A BETTER ENVIRONMENT, et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, et al., Defendants; Tesoro Refining and Marketing Company, Real Party in Interest and Appellant.

1 Cal.Rptr.3d 76

109 Cal.App.4th 1089

COMMUNITIES FOR A BETTER ENVIRONMENT, et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, et al., Defendants; Tesoro Refining and Marketing Company, Real Party in Interest and Appellant.

No. A100327.

Court of Appeal, First District, Division 1.

May 30, 2003.

Rehearing Denied June 27, 2003.

Review Denied September 24, 2003.

William H. Freedman, Los Angeles, John R. Reese, San Francisco, Rick R. Rothman, David K. Bowles, Bingham McCutchen, for Tesoro Refining and Marketing Co.

Chris Jensen, C.L.S., Michael R. Lozeau, Deborah A. Sivas, Earthjustice, San Francisco, for Communities for A Better Environment and San Francisco Baykeeper.

Gregory R. McClintock, Scott C. McAdam, Mayer, Brown, Rowe & Maw, Los Angeles, for Amicus Curiae on behalf of Real Party in Interest and Appellant Western States Petroleum Ass'n.

Melissa A. Thorme, Nicole E. Granquist, Courtney J. Hamamoto, Downey, Brand, Seymour & Rohwer LLP, Sacramento, for Amicus Curiae on behalf of Real Party in Interest and Appellant Bay Area Clean Water Agencies.

MARCHIANO, P.J.

Appellant Tesoro Refining and Marketing Company operates the Golden Eagle Refinery (the Refinery) near Avon, California, on the shores of Suisun Bay. The Refinery operates under a National Pollutant Discharge Elimination System (NPDES) permit issued by the Regional Water Quality Control Board, San Francisco Bay Region (Regional Board). The permit regulates the Refinery's discharges of dioxins and other pollutants into Suisun Bay. In June 2000 the Regional Board amended the permit. After an administrative appeal, the State Water Resources Control Board (State Board) upheld the amended permit.

Respondents, Communities for a Better Environment and San Francisco BayKeeper, challenged the amended permit by a petition for writ of mandate in the superior court. Respondents argued, inter alia, that the amended permit failed to comply with applicable federal pollution control laws because it failed to set a numeric "water quality based effluent limit" (WQBEL) for dioxin discharges. The superior court agreed and granted the petition. Tesoro appeals from the judgment granting the writ of mandate, and argues that the trial court erred by ruling a WQBEL had to be numeric. We reverse because a WQBEL does not have to be numeric in all cases, and under the circumstances of this case three administrative agencies properly approved the amended permit as a valid means of pollution control.

I BACKGROUND

Before we review the merits, we must first discuss the legal, factual, and procedural background of this case.

A. Legal Background

We begin with a brief overview of the applicable law. To enhance understanding we use italics to introduce significant terms of art of pollution control.

In 1972, Congress enacted the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), commonly known as the Clean Water Act (CWA). (See Water-Keepers Northern California v. State Water Resources Control Bd. (2002) 102 Cal. App.4th 1448, 1452, 126 Cal.Rptr.2d 389 (WaterKeepers).) The goal of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (33 U.S.C. § 1251(a); see Arkansas v. Oklahoma (1992) 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (Arkansas).)

Generally, the CWA "prohibits the discharge of any pollutant except in compliance with one of several statutory exceptions. [Citation.]" (WaterKeepers, supra, 102 Cal.App.4th at p. 1452, 126 Cal.Rptr.2d 389.) The most important of those exceptions is pollution discharge under a valid NPDES permit, which can be issued either by the Environmental Protection Agency (EPA), or by an EPA-approved state permit program such as California's. (33 U.S.C. § 1342; WaterKeepers, supra, at p. 1452, 126 Cal.Rptr.2d 389; see Arkansas, supra, 503 U.S. at pp. 101-103, 112 S.Ct. 1046.) NPDES permits are valid for five years. (33 U.S.C. § 1342(b)(1)(B).)

Under the CWA's NPDES permit system, the states are required to develop water quality standards. (33 U.S.C. § 1313(a); see Arkansas, supra, 503 U.S. at p. 101, 112 S.Ct. 1046.) A water quality standard "establishes] the desired condition of a waterway." (503 U.S. at p. 101, 112 S.Ct. 1046.) A water quality standard for any given waterway, or "water body," has two components: (1) the designated beneficial uses of the water body and (2) the water quality criteria sufficient to protect those uses. (33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.3(i) (2002).)

Water quality criteria can be either narrative or numeric. (40 C.F.R. § 131.3(b) (2002).) By way of example, in its decision below the State Board noted that "[a] typical narrative criterion ... prohibits `the discharge of toxic pollutants in toxic amounts.'" A numeric criterion establishes a quantitative limitation on pollutant concentrations or levels, to protect beneficial uses of the water body. (40 C.F.R. § 131.3(b) (2002).) .The State Board noted, "An example of a numeric saltwater criterion for copper to protect aquatic life is 3.1 micrograms per liter (ig/l) as a monthly average."

Generally, to meet water quality standards a polluter must comply with effluent limitations. The CWA defines an effluent limitation as "any restriction established by a State or the [EPA] Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance." (33 U.S.C. § 1362(11).)¹ "Effluent limitations are a means of achieving water quality standards." (Trustees For Alaska v. E.P.A. (9th Cir.1984) 749 F.2d 549, 557, italics in original.)

NPDES permits establish effluent limitations for the polluter. (33 U.S.C. §§ 1311, 1312, 1342(a)(1); EPA v. State Water Resources Control Board (1976) 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (EPA).) CWA's NPDES permit system provides for a two-step process for the establishing of effluent limitations. First, the polluter must comply with technologybased effluent limitations, which are limitations based on the best available or practical technology for the reduction of water pollution. (33 U.S.C. § 1311(b)(1)(A); see EPA supra, at pp. 204-205, 96 S.Ct. 2022.)

Second, the polluter must also comply with more stringent water quality-based effluent limitations (WQBELs) where applicable. In the CWA, Congress "supplemented the `technology-based' effluent limitations with `water quality-based' limitations 'so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.'" (National Wildlife Fed. v. U.S. Army Corps (D.Or.2000) 92 F.Supp.2d 1072, 1075, quoting EPA, supra, 426 U.S. at p. 205, fn. 12, 96 S.Ct. 2022.)

The CWA makes WQBELs applicable to a given polluter whenever WQBEL's are "necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations...." (33 U.S.C. § 1311(b)(1)(C); 40 C.F.R. § 122.44(d)(1) (2002).) Generally, NPDES permits must conform to state water quality laws insofar as the state laws impose more stringent pollution controls than the CWA. (33 U.S.C. § 1370; see Wat.Code, §§ 13263, subd. (a), 13372.) Simply put, WQBELs implement water quality standards.²

EPA regulations implement the two-pronged effluent limitation system for NPDES permits. The regulation pertinent to the issue on appeal is 40 Code of Federal Regulations section 122.44 (section 122.44).³ Section 122.44(a)(1) requires technology-based effluent limitations. Section 122.44(d) governs WQBELs.

Section 122.44(d)(1)(i) requires WQBELs whenever the permitting agency determines that pollutants "are or may be discharged at a level which will cause, or have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, [including narrative criteria for water quality]." (Italics added.) According to the State Board's decision, "The analysis to determine what pollutants must have [WQBELs] is commonly called the `reasonable potential analysis.' "

Section 122.44(d)(1)(iii) provides that "When the permitting authority determines . . . that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the allowable ambient concentration of a State numeric criteria within a State water quality standard for an individual pollutant, the permit must contain effluent limits for that pollutant."

Section 122.44(d)(1)(vi) provides that "Where a State has not established a water quality criterion for a specific chemical pollutant that is present in an effluent at a concentration that causes, has the reasonable potential to cause, or contributes to an excursion above a narrative criterion within an applicable State water quality standard, the permitting authority must establish effluent limits using one or more of the following options:

"(A) Establish effluent limits using a calculated numeric water quality criterion for the pollutant which the permitting authority demonstrates will attain and maintain applicable narrative water quality criteria and will fully protect the designated use. Such a criterion may be derived using a proposed State criterion, or an explicit State policy or regulation interpreting its narrative water quality criterion, supplemented with other relevant information which may include: EPA's Water Quality Standards Handbook, October 1983, risk assessment data, exposure data, information about the pollutant from the Food and Drug Administration, and current EPA criteria documents; or

"(B) Establish effluent limits on a case-by-case basis, using EPA's water quality criteria, published under section 304(a) of the CWA, supplemented where necessary by other relevant information; or

"(C)...