Summary of a Recent
Judicial Development in
Environmental Law

Non-numeric WQBELs as a Valid Means of Pollution Control

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Communities for a Better Environment v. State Water Resources Control Board, 109 Cal. App. 4th 1089 (Cal. Ct. App. 2003), the Court of Appeals for the First District of California reversed the decision of the trial court, which had granted a writ of mandate petition filed by Communities for a Better Environment and San Francisco BayKeeper. Before the trial court, the two environmental groups successfully argued that the Tesoro permit failed to comply with applicable federal pollution control laws because it did not set a numeric water quality based effluent limit (WQBEL) for dioxin discharges. The instant court reversed, holding that 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.

Background

Tesoro operated a refinery on the shores of Suisun Bay, which processed an average of 150,000 barrels of crude oil a day, and produced, on average, about 4.7 million gallons per day of processed wastewater. Id. at 1097. The wastewater was discharged into the bay through an outfall pipe known as Waste 001. Id. National Pollution Discharge Elimination System (NPDES) permit No. CA0004961, which was first issued in 1988, governed the refinery's discharges. Id. In 1993, the Regional State Water Resources Control Board (Board) reissued the permit. Id. However, unlike its previous counterparts, the reissued permit contained a numeric WQBEL for dioxins and a compliance schedule consisting of six tasks the refinery was charged to complete. Id. By October 1993, the refinery had begun treating its wastewater with granulated activated carbon, which successfully removed greater than 95 percent of the dioxins from the refinery's discharges. Id.

Despite the carbon treatment, on November 15, 1995, the Board issued a cease-and-desist order (CDO) against the refinery. Id. at 1098. To justify its decision, the CDO stated that its monitoring data, since November 1993, showed "no appreciable reduction of dioxins levels in the discharge from the [r]efinery." Id. The Board further stated, "[the] data showed that [the refinery] ha[d] violated and threatened to continue to violate the effluent limit for dioxin specified in the 1993 and 1995 permits," and "additional effort [was] necessary to reduce the discharge of dioxins so that beneficial uses of the receiving water [were] fully protected." Id. The CDO ordered the refinery to immediately comply with an interim effluent limit of 0.14 pg/L for 2,3,7,8-TCDD. Id. After the Environmental Protection Agency (EPA) weighed in on the matter, the Board issued a new permit to the refinery for 2000. Id. at 1100. In the refinery's NPDES permit for 2000, the Board rescinded the numeric WQBEL of 0.14 pg/L because it was "not appropriate." Id. Rather than using a numeric WQBEL, the Board used an interim effluent limitation of 0.65 pg/L, a performance-based limitation. Id. at 1101.

Respondents, Communities for a Better Environment and San Francisco BayKeeper, appealed the Regional Board's orders reissuing and amending the refinery's 2000 permit. Id. After an evidentiary hearing, the State Board issued a lengthy decision largely upholding the orders of the Regional Board. Id. at 1102. Thereafter, respondents challenged the State Board's determination with a petition for writ of mandate they filed in superior court. Id. at 1103. In their request, respondents argued three points: (1) that the amended 2000 permit violated the Clean Water Act (CWA) by failing to establish a WQBEL for dioxins; (2) that the permit violated the antibacksliding provisions of the CWA; and (3) that the permit schedule of compliance was invalid because no WQBEL had been established. Id. The court granted their petition for mandate, ruling that the amended 2000 permit was required to contain a numeric WQBEL. Id. Tesoro appealed. Id.

Arguments

On appeal, Tesoro argued that the trial court erred by determining that a WQBEL in the amended 2000 permit had to be numeric. Id. The respondents countered by arguing that the amended permit contained no WQBEL at all, numeric or otherwise, because the 2000 NPDES permit did not establish a current effluent limitation but deferred to the future process of TMDL development. Id.

Analysis and Holdings

The court narrowed the scope of the instant appeal down to a single issue: whether a WQBEL, which implements a narrative or numeric water quality standard, must itself be numeric. Id. at 1095. In concluding that CWA § 122.44(d) of did not require a numeric WQBEL under the circumstances of this case, the instant court stated that the trial court must have confused effluent limitations with water quality criteria. Id. at 1104. The court could not find anything in the regulation that mandated numeric WQBEL's in all circumstances; and, in light of the supporting record and the court's reading of the applicable statutes and regulations, it agreed with the agencies' determinations. Id. at 1104, 07.

The case was decided on May 30, 2003.