COMMUNITIES FOR A BETTER ENVIRONMENT and
SAN FRANCISCO BAYKEEPER,
Petitioners,
v.
STATE WATER RESOURCES CONTROL BOARD and
CALIFORNIA REGIONAL WATER QUALITY
CONTROL BOARD, SAN FRANCISCO BAY REGION, Respondents.
ULTRAMAR, INC.,
Real Party in Interest.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN
FRANCISCO
Case No. 319575
[PROPOSED] STATEMENT OF DECISION
Hearing Date: February 28, 2002
Time: 9:30 a.m.
Department: 301
Action Filed: March 13, 2001
I. INTRODUCTION
On March 13, 2000, Petitioners Communities For A Better Environment and San Francisco BayKeeper timely filed a petition for writ of mandate seeking an order from this Court vacating an amendment of a National Pollutant Discharge Elimination System ("NPDES") permit issued by the Regional Water Quality Control Board, San Francisco Bay Region ("Regional Board") (Order No. 00-056), as well as an Order by the State Water Resources Control Board ("State Board") upholding that amendment (Order No. WQ 2001-06), for discharges of dioxins and other pollutants from Ultramar Inc.'s refinery near Avon, California. The Petition alleges that Order No. 00-056, as upheld by Order No. WQ 2001-06: (1) fails to include the "water quality-based effluent limit" for dioxins required by Section 1311(b)(1)(C) of the Federal Water Pollution Control Act (the "Clean Water Act" or "Act"), 33 U.S.C. § 1251 et seq., and 40 C.F.R. § 122.44(d); (2) violates the Act's antibacksliding requirement, 33 U.S.C. § 1342(o), and; (3) violates the Act's limitations on the application of schedules of compliance. The Court agrees with the first of those claims, and does not reach the other two arguments.
The Petition for Writ of Mandamus is hereby GRANTED. Real Party Ultramar's permit fails to include a numeric water quality-based effluent limitation as mandated by the Clean Water Act. By eliminating a water quality-based effluent limitation for dioxins as
required by 33 U.S.C. § 1311(b)(1)(C) and 40 C.F.R. § 122.44(d) to be included in the permit for the Avon refinery, the orders of the Regional and State Boards are in violation of the law. Accordingly, pursuant to Code of Civil Procedure § 1094.5(f), the State Board's Order No. WQ 2001-06 and the Regional Board's Order No. 00-056 are hereby remanded for further proceedings consistent with the Court's ruling.
II. STANDARD OF REVIEW
This Court must remand Orders 00-056 and WQ 2001-06 to the Regional and State Boards if it finds that the agencies prejudicially abused their discretion. Code Civ. Pro. § 1094.5(b). A prejudicial abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the weight of the evidence. Id.
III. LEGAL BACKGROUND
The permit amendment challenged by this action was issued under the Clean Water Act (the "Act"). 33 U.S.C. § 1251 et seq. The Clean Water Act established a phased approach to the establishment of effluent limitations in NPDES permits. 33 U.S.C. § 1311. A technology forcing statute, the Act imposes increasingly stringent effluent limitations on dischargers over time. 33 U.S.C. § 1311(b). Currently, technology-based effluent limitations must at least reflect the level of pollution reduction achievable by using the best available technology. 33 U.S.C. § 1311(b). However, in many cases water quality standards may still not be achieved even when dischargers use the best available technology. In those instances, permits must be more stringent than technology-based limits in order to meet standards. Pursuant to Section 1311(b)(1)(C), the Act requires "any more stringent effluent limitation, including those necessary to meet water quality standards. . ." 33 U.S.C. § 1311(b)(1)(C). See EPA v. California, 426 U.S. at 205 n. 12. NPDES permits must contain more stringent limitations, or water quality based effluent limitations ("WQBELs"), when the state permitting agency determines that pollutants "are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard." 40 C.F.R. § 122.44(d)(1)(i) (emphasis added). Under these circumstances, the federal regulations require permits to establish effluent limits using a calculated numeric water quality criterion that the permitting authority demonstrates will attain and maintain applicable narrative water quality criteria and will fully protect the designated use. 40 C.F.R. § 122.44(d)(1)(vi)(A).
IV. FACTUAL BACKGROUND
The United States Environmental Protection Agency ("EPA") has determined that Suisun Bay is impaired for dioxins, meaning that the level of dioxins in the Bay exceeds the narrative water quality standard established for toxic pollutants in the Basin Plan for the San Francisco Bay Region ("Basin Plan"). SBAR 13-004313; RBAR 9-202869; Id. at 202874; RBAR 1-200011-12 (Finding 41); SBAR 3-001135. The determination that Suisun Bay is impaired by dioxins was first made by the EPA in November 1998. SBAR 11-003919-3920.
Hence, EPA has concluded that any discharge of dioxins into the already impaired Bay from the Avon Refinery, or any other facility identified as a source of dioxins to the Bay, has the reasonable potential to cause or contribute to an excursion of the narrative toxicity criterion. RBAR 1-200015 (Finding 57.a). See SBAR 7-002240 (EPA representative) ("The Bay is listed for... dioxin. Therefore, the Bay has no more assimilative capacity. In other words the bay is incapable of absorbing or diluting these pollutants"); RBAR 1-200013 (Finding 49); SBAR 7-002350-2351.
The designation of Suisun Bay by the EPA as impaired for dioxins triggered the requirement that EPA or the State of California develop a Total Maximum Daily Load ("TMDL") for dioxins in that body of water. A TMDL represents the total amount of a particular substance that the water body can absorb while still meeting the designated uses for that water body. EPA has been in the process of developing the TMDL for dioxins since 1998, when the designation was made. Due to the complexity of the issue, however, EPA has not yet completed and issued the TMDL for dioxins for Suisun Bay.
On June 21, 2000, the Regional Board issued Order No. 00-056. RBAR 7 202361. This order placed an interim limit of 0.65 pg/L on the discharge of dioxins to Suisun Bay. RBAR 7-202366, XXXP27. This limit is based upon the performance of the facility. The order also adopted a final limit based on the TMDL. Since the TMDL for Suisun Bay has not yet been developed, the Regional Board imposed a compliance plan that required the Refinery to comply with the TMDL by 2012. RBAR 7-202365,XXXPXXXP 18-19. In the event the EPA had not developed the TMDL by that date, the alternative final limit would be "no net loading." "No net loading" is a limit which would require the Refinery to either discharge no dioxins, or to offset any discharge with an equal reduction. Id.
V. ANALYSIS
By issuing Order No. 00-056 without a WQBEL for dioxins, the Regional and State Boards failed to proceed in a manner required by law and/or abused their discretion, because the Refinery's permit no longer includes the requisite WQBEL. As described above, a NPDES permit must establish a WQBEL for a particular pollutant whenever the permitting agency determines that the discharge of the pollutant has a reasonable potential to cause or contribute to a violation of water quality standards. 33 U.S.C. § 1311(b)(1)(C); 40 C.F.R. § 122.44(d)(1)(i); See RBAR 1-200014 (2000 Permit, Finding 55).
The parties do not dispute that the Avon Refinery's NPDES permit must contain a WQBEL for dioxins. The interim limit of 0.65 pg/L for five of the seventeen dioxin congeners is technology-based, rather than water-quality based, and is therefore not a WQBEL. The final limits established in Order No. 00-056 do not constitute WQBELs because they are not numeric limits as required by 40 C.F.R. § 122.44(d)(1)(vi)(A). The primary final limit, the TMDL-based limit, is not a WQBEL within the meaning of Section 122.44(d)(vi)(A) because no TMDL has yet been established by EPA or the State, and it therefore does not constitute a numeric limit. The alternate final limit, the limit of "no net loading," is not a WQBEL within the meaning of Section 122.44(d)(vi)(A) because the State has not yet developed a program that establishes a numeric limit.
Since Order No. 00-056 does not contain a numeric WQBEL, it was issued in violation of 40 C.F.R. § 122.44(d)(1)(vi)(A). The Regional Board therefore abused its discretion within the meaning of Code of Civil Procedure § 1094.5.
VI. CONCLUSION
For the foregoing reasons, the Petition for Writ of Mandate is GRANTED and the Regional Board's and State Board's orders issuing and upholding Order No. 00-056 and Order No. WQ 2001-06 are remanded for further proceedings in accordance with the requirements of the Clean Water Act and this ruling.
Date: 7/15/02
The Honorable James J. McBride of the Superior Court
Based On Order Submitted by:
Michael R. Lozeau
Earthjustice Legal Defense Fund
553 Salvatierra Walk
Stanford, California 94305-8620
Tel: (650) 725-4217
Fax: (650) 725-8509
Attorney for Petitioners
Richard Toshiyuki Drury
Anne E. Simon
Communities For A Better Environment
1611 Telegraph Avenue, #450
Oakland, CA 94612
Tel: (510) 302-0430;
Fax: (510) 302-0438)
Attorneys for Petitioner
Communities For A Better
Leo O'Brien
WaterKeepers Northern California Presidio, Building 1004,
P.O. Box 29921
San Francisco, California 94129-0912
Tel: (415) 561-2299, ext. 12
Fax: (415) 561-2290
Attorney for San Francisco BayKeeper Judge of the Superior Court Environment
Amended Order
Submitted by:
William H. Freedman
Rick R. Rothman
David K. Bowles
McCutchen, Doyle, Brown
& Enersen, LLP
355 S. Grand Avenue, Suite 4400
Los Angeles, CA 90071
Tel. (213) 680-6400
Fax: (213) 680-6499
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN
FRANCISCO
COMMUNITIES FOR A BETTER ENVIRONMENT and
SAN FRANCISCO BAYKEEPER,
Petitioners,
v.
STATE WATER RESOURCES CONTROL BOARD and
CALIFORNIA REGIONAL WATER QUALITY
CONTROL BOARD, SAN FRANCISCO BAY REGION, Respondents.
ULTRAMAR, INC.,
Real Party in Interest.
Action filed: March 13, 2001
Case No. 319575
[PROPOSED] JUDGMENT GRANTING PEREMPTORY WRIT OF MANDATE
This cause came on regularly for trial on February 28, 2002, at 9:30 a.m., in Department 301 of the above-entitled court, the Honorable James J. McBride, Judge, sitting without a jury. Michael R. Lozeau, Earthjustice Legal Defense Fund appeared on behalf of Petitioners Communities For A Better Environment ("CBE") and San Francisco BayKeeper. Anne E. Simon appeared on behalf of Petitioner CBE. Deputy Attorney General Gavin G. McCabe appeared on behalf of the State Respondents State Water Resources Control Board ("State Board") and California Regional Water Quality Control Board, San Francisco Bay Region ("Regional Board"). Rick R. Rothman appeared on behalf of Real Party in Interest Ultramar, Inc. Melissa Thorme appeared on behalf of amicus curiae Bay Area Clean Water Agencies. The cause was argued and submitted for decision. Having considered the arguments of counsel, the documents and administrative record on file in the action and having issued the Statement of Decision on this matter.
IT IS ORDERED, ADJUDGED, AND DECREED as follows:
A peremptory writ of mandate shall be issued and directed to Respondents State Water Resources Control Board and California Regional Water Quality Control Board, San Francisco Bay Region commanding Respondents, respectively, to set aside the State Board's Order No. WQ 2001-06 and the Regional Board's Order No. 00-056.
The writ shall remand Order No. WQ 2001-06 to the State Board and Order No. 00-056 to the Regional Board for further proceedings in their discretion that are consistent with this Judgment and the Statement of Decision.
Petitioner shall recover costs from Respondents and Real Party In Interest Ultramar, Inc. in the amount pursuant to cost bill
Dated: 7/15, 2002.
The H onor able Judge James J. McBride
Submitted by:
Michael R. Lozeau
Earthjustice Legal Defense Fund
553 Salvatierra Walk
Stanford, California 94305-8620
Tel: (650) 725-4217
Fax: (650) 725-8509
Attorneys for Petitioners
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