Michael R. Lozeau

Deborah A. Sivas

EARTHJUSTICE LEGAL DEFENSE FUND

553 Salvatierra Walk

Stanford, California 94305-8620

Tel: (650) 725-4217

Fax: (650) 725-8509

Leo O'Brien (CA Bar No. 171388)

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

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SONOMA

I. INTRODUCTION *

II. LEGAL BACKGROUND *

III. FACTUAL BACKGROUND *

A. The Cities’ Reclaimed Wastewater Does Not Contribute Any Mercury,
Copper or Nickel to the Bay or its Tributaries *

B. All Three State and Federal Agencies Responsible for Implementing the
Clean Water Act in San Francisco Bay Have Found That the Bay is Impaired by Mercury, Copper and Nickel -- Three Toxic Pollutants *

C. The North Bay Permits Allow the Cities to Increase Their Loadings of Mercury, Copper and Nickel Discharged to San Francisco Bay *

1. The Permits allow Petaluma and FSSD to increase their mercury loadings
to the Bay *

2. The Permits allow Petaluma and FSSD to increase their copper and nickel loadings to the Bay *

D. The Permits Do Not Include Any Water Quality-Based Effluent Limitations
For Mercury, Copper Or Nickel *

E. The Permits Include Schedules Of Compliance For Effluent Limitations
Implementing Standards That Were In Effect Prior To The Basin Plan’s
Inclusion Of A Compliance Schedule Provision *

F. The "Interim Limits" Included In The Permits Were Based On The
Basin Plan’s "Alternate Limits" Provision *

IV. ARGUMENT *

A. Standard Of Review *

B. The North Bay Permits Violate The Federal Antidegradation Policy *

1. The North Bay permits allow additional discharges of
impairing pollutants despite the inability of the Bay to assimilate
additional quantities of these pollutants in violation of the
antidegradation policy (First and Second Claims for Relief) *

2. The Regional Board's creation of an additional exemption
to the antidegradation policy in order to accommodate the
North Bay dischargers is inconsistent with existing law
(Third Claim for Relief) *

3. The Regional Board's decision to exempt nonbioaccumulative
pollutants from the terms of the antidegradation policy is
inconsistent with law (Fourth Claim for Relief) *

4. Respondents decision that issuing mass limits allowing increases
in the mass of copper, mercury and nickel does not violate the
antidegradation policy is not supported by respondents' findings
that the bay is impaired by those three pollutants (Fifth Claim for Relief) *

5. The evidence in the record does not support a finding that
increased discharges of mercury, copper and nickel can comply
with the antidegradation policies (Sixth Claim for Relief) *

C. The North Bay Permits Do Not Establish Water Quality-Based Effluent Limits
For Mercury And Copper Mandated By The Federal Regulations
(Seventh Claim for Relief) *

D. The North Bay Permits Include Unauthorized Schedules To Comply
With Limits For Mercury And Copper To Be Established In
Future Permits (Eighth Claim for Relief) *

1. The Schedules of Compliance are not authorized by the Basin Plan *

2. The schedules of compliance are not authorized by the Clean Water Act *

a. Section 301(b)(1)(C) establishes a firm deadline for
complying with water quality-based effluent limitations
beyond which no extensions can be granted by the State *

b. The WQBEL deadline for compliance applies to limitations
necessary to meet water quality standards
established after July 1, 1977 *

c. Any requirement by the state that allows permit limitations
extending the WQBEL compliance deadline beyond July 1, 1977,
is less stringent than the requirements of the Act and
forbidden by section 510 *

d. Related provisions of section 301 make clear that
compliance schedules to achieve water quality-based
effluent limitations cannot extend the Act's deadline *

e. The Act's legislative history supports the plain meaning
of the language of section 301 *

3. The schedules of compliance violate the Clean Water Act's
mandate that NPDES permits be established for fixed terms
not exceeding five years *

4. A compliance schedule beyond the term of a permit is
unenforceable and inconsistent with EPA's definition
of a compliance schedule *

5. A compliance schedule longer than five years undermines
the public's right to comment on future NPDES permits *

6. The seven to ten year compliance schedules established
by the Board are not as soon as possible as required by the
Basin Plan and the federal regulations *

E. The North Bay Permits Establish Alternate Limits
Without Demonstrating The Prerequisites Established In
The Basin Plan (Ninth Claim for Relief) *

V. CONCLUSION *

Alabama ex rel. Baxley v. Environmental Protection Agency,

557 F.2d 1101 (5th Cir. 1977) 22

Alaska Center for the Environment v. Browner, 20 F.3d 981 (9th Cir. 1994) 5

Alton Box Board Co. v. U. S. Environmental Protection Agency,
592 F.2d 395 (7th Cir. 1979) 22

Arkansas v. Oklahoma, 503 U.S. 91 (1992) 2, 3, 5

Bethlehem Steel Corp. v. Train, 544 F.2d 657 (3d Cir. 1976) 22

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) 13

Citizens For A Better Environment v. Union Oil Co. of Cal.,

83 F.3d 1111 (9th Cir. 1996) 27

Dioxin/Organochlorine Ctr. v. Rasmussen, 1993 WL 484888 (W.D. Wash. 1993) 22

Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517 (9th Cir. 1995) 22

California State Water Resources Control Board, 426 U.S. 200 (1976) 2, 3

Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 23 ELR 20454 (9th Cir. 1992) 4, 22

NRDC v. EPA, 915 F.2d 1314 (9th Cir. 1990) 28

Save Our Bays and Beaches v. City & County of Honolulu,

904 F. Supp. 1098 (D. Haw. 1994) 23

State Water Control Board v. Train, 559 F.2d 921 (4th Cir. 1977) 22

United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977) 22, 24

United States v. Homestake Mining Co., 595 F.2d 421 (8th Cir. 1979) 4, 22

Columbus & Franklin County Metropolitan Park District v. Shank,

600 N.E.2d 1042 (Ohio 1992) 15

Marina County Water Dist. v. State Water Res. Control Bd.,
(1st Dist. 1984) 163 Cal. App. 3d 132 13

Rivers Unlimited, Inc. v. Schregardus, 685 N.E.2d 603 (Ohio 1997) 15

Schoen v. Department of Forestry & Fire Protection,

58 Cal. App. 4th 556 (1997) 25

In the Matter of Star-Kist Caribe, Inc., 24 ELR 40009 (May 26, 1992)
(EPA Appeal Board, NPDES Appeal No. 88-5) 27

In the Matter of the Petition of Rimmon C. Fay,
SWRCB Order No. WQ 86-17 (Nov. 20, 1986) (1986 WL 25526) 4-5, 14, 15, 16

In the Matter of the Petition of Communities For A Better Environment, et al.,
SWRCB Order No. WQ 90-5 (Oct. 4, 1990) (1990 WL 15109) 6, 14, 15

In the Matter of the Petitions of Friends of the Sea Otter and
Dep't of Fish & Game, SWRCB Order No. WQ 90-1 (Jan. 18, 1990)
(1990 WL 15109) 14

In the Matter of the Petition of Environmental Health Coalition,
SWRCB Order No. WQ 91-10 (Sept. 26, 1991) (1991 WL 214438) 5, 14, 15, 16

In the Matter of the Petition of Envt'l Health Coalition, et al.,

SWRCB No. WQ 92-09 (Sept. 17, 1992) (1992 WL 297157) 8, 10, 11, 12

In the Matter of the Petition of Las Virgenes Municipal Water Dist.,

SWRCB No. WQ 98-11 (Nov. 19, 1998) (1998 WL 1018628) 18

Code Civ. Proc. § 1094.5(b) 13

Water Code § 13263(a) 4

Water Code § 13320 13

Water Code § 13330(d) 13

Water Code § 13377 6, 13

Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq 1

33 U.S.C. §§ 1311(b)(1) 21, 25

33 U.S.C. §§ 1311(b)(1)(A) 3, 4, 26

33 U.S.C. §§ 1311(b)(1)(C) 3, 4, 18, 21-27, 29

33 U.S.C. §§ 1311(b)(2) 25

33 U.S.C. §§ 1311(i) 25

33 U.S.C. §§ 1311(i)(1) 25

33 U.S.C. §§ 1311(i)(2) 25

33 U.S.C. §§ 1311(i)(2)(B) 25

33 U.S.C. §§ 1313(c) 5

33 U.S.C. § 1313(c)(2)(A) 2, 27

33 U.S.C. §§ 1313(d) 5

33 U.S.C. §§ 1313(d)(1)(A) 5

33 U.S.C. §§ 1313(e)(3)(A) 24

33 U.S.C. §§ 1313(f) 25

33 U.S.C. § 1319(a)(6) 26

33 U.S.C. § 1342(a)(1) 2, 30

33 U.S.C. §§ 1342(b)(1)(A) 5

33 U.S.C. §§ 1342(b)(1)(B) 27

33 U.S.C. §§ 1342(b)(3) 29

33 U.S.C. § 1362(17) 28

33 U.S.C. § 1370 3, 16, 18, 19, 24

40 C.F.R. § 122.21(d)] 29

40 C.F.R. § 122.2 28

40 C.F.R. § 122.4(a) 6

40 C.F.R. § 122.44(d)(1) 4, 18

40 C.F.R. § 122.45(f) 6

40 C.F.R. § 122.46(a) 2, 28

40 C.F.R. § 122.47 4, 23, 29

40 C.F.R. § 122.47(a)(1) 4, 29

40 C.F.R. § 123.25 2, 23

40 C.F.R. § 130.7(d)(1) 5

40 C.F.R. § 131.12(a)(1) 5

40 C.F.R. § 131.12(a)(2) 2, 5, 14, 16

40 C.F.R. § 131.3 (i) 2

40 C.F.R. § 131.6 27

40 C.F.R. § 133.102 3

Water Quality Control Plan - San Francisco Bay Region (1995) 2, 4, 12

Petitioner San Francisco BayKeeper ("Petitioner" or "BayKeeper") submits the following points and authorities in support of its motion for a peremptory writ of mandamus:

I. INTRODUCTION

BayKeeper seeks this Court to vacate and remand certain portions of National Pollutant Discharge Elimination System ("NPDES") permits issued by the Regional Water Quality Control Board, San Francisco Bay Region ("RWQCB" or "Regional Board") for two cities that discharge municipal wastewater to the northern reaches of San Francisco Bay: the City of Petaluma which discharges effluent into the Petaluma River, and the Fairfield-Suisun Sewer District ("FSSD"), which discharges effluent to Suisun Marsh. San Francisco Bay is impaired with an alarming list of pollutants, including mercury, copper and nickel. The Regional Board, although recognizing that fact, would like to allow dischargers to continue to increase the amount of impairing pollutants, such as mercury, copper and nickel, which they discharge to the Bay. The question for the Court is, where a waterbody already is impaired by certain pollutants, how can the agency charged with cleaning up that waterbody justify increasing the amount of those pollutants discharged into the impaired waters? The simple answer is, the agency cannot without running afoul of the state and federal antidegradation policies.

Relatedly, because the cities' are contributing to the Bay's impairment by mercury and copper, their discharge must be subjected to what are referred to as "water quality-based effluent limits" ("WQBELs"). WQBELs are established in order to assure that the applicable water quality standards are met. During most of the permitting process for the North Bay dischargers, Regional Board staff hoped to avoid WQBELs entirely, steadfastly asserting that such WQBELs for copper and mercury were not feasible. In the end, however, half-heartedly recognizing their legal obligation to establish WQBELs, the Board identified WQBELs but made sure that they would not apply during the life of the five-year permits by putting off the WQBEL's effective date for seven or more years. Instead, the only "effective" limits for mercury and copper issued by the Board were based on the levels with which the cities' plants were assured of complying. The Board's de facto omission of WQBELs and its reliance on illegal schedules of compliance must be rejected. For these and other reasons set forth below, the Court should issue a peremptory writ of mandate vacating and remanding portions of the North Bay permits.

II. LEGAL BACKGROUND

The permits challenged by this action were issued under the Clean Water Act. In 1972, Congress enacted the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., which established the National Pollutant Discharge Elimination System ("NPDES"). The NPDES provided for the issuance of pollution discharge permits by the federal Environmental Protection Agency and, upon meeting specified criteria, delegated states. Delegated States must abide by the federal regulations controlling the issuance of NPDES permits. 40 C.F.R. § 123.25.

NPDES permits are the mechanism for EPA and the delegated states to implement water quality standards. 33 U.S.C. § 1342(a)(1). See Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992) (Ex. D). NPDES permits are for "fixed terms not exceeding five years." 33 U.S.C. § 1342(b)(1)(B); 40 C.F.R. § 122.46(a). Water quality standards consist of beneficial uses and water quality criteria established to protect those uses. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.3 (i). In addition, a state's water quality standards also include an antidegradation policy. 40 C.F.R. § 131.12(a)(2). The water quality standards applicable to San Francisco Bay are set forth in the Water Quality Control Plan - San Francisco Bay Region (1995) ("Basin Plan"). Basin Plan, Chapter 3.

Water quality standards are expressed in both numeric and narrative terms. Basin Plan at 3-1. Hence, a numeric water quality standard consists of a numeric concentration to be achieved in the receiving waterbody column. See, e.g. id. at 3-9 (Table 4-3) (RJN Ex. 1). The Basin Plan establishes numeric water quality standards for both copper and mercury. The standard for copper is 4.9 ug/l. Id. See also Letter from Alexis Strauss, EPA, to Loretta Barsamian, RWQCB at 3 (June 1, 1998) ("EPA Objection") (AR 00486). The standard for mercury is 0.012 ug/l. Basin Plan at 3-10, Table 4-3. See also EPA Objection at 2 (AR 00485). The standard for nickel is 7.1 ug/l. Basin Plan at 3-9, Table 4-3. Those numeric standards were added to the Basin Plan in 1992. See AR 00019.

A narrative water quality standard describes the prescribed goal with words. For example, relevant to this proceeding, the Regional Board established a narrative toxicity standard which states, in pertinent part:

All waters shall be maintained free of toxic substances in concentrations that are lethal to or that produce other detrimental responses in aquatic organisms. . . There shall be no acute toxicity in ambient waters. . . There shall be no chronic toxicity in ambient waters.

Basin Plan at 3-4 (RJN Ex. 1). That standard was established in the Basin Plan in 1975. RJN Ex. 2.

The Clean Water Act established a phased approach to the establishment of effluent limitations in NPDES permits. Congress established a series of deadlines by which progressively more stringent levels of technology had to be applied to industrial point source dischargers. 33 U.S.C. §§ 1311(b)(1)(A) (effluent limitations based on the "best practicable control technology" to be achieved by July 1, 1977); 1311(b)(2) (effluent limitations based on the "best available technology" to be achieved by March 31, 1989). Congress established a similar treatment technology deadline for municipal sewage plants, requiring such plants to achieve effluent limitations based on "secondary treatment" by not later than July 1, 1977. 33 U.S.C. § 1311(b)(1)(B).

Congress' focus on technology-based standards was a significant departure from the previously applicable federal water pollution laws, which relied almost exclusively on enforcing water quality standards. EPA v. California, 426 U.S. at 202-209. In 1972, Congress, although reacting to decades of evidence demonstrating that a law based only on standards would not protect the Nation's waters, did not discard the use of water quality standards. Instead, the Clean Water Act maintained standards as the goals necessary to be achieved through implementation of the NPDES permitting program, including mandated treatment technologies and, where necessary, efforts to control pollutants beyond the minimum technology-based requirements.

As a result, in addition to the deadlines for achieving the minimum treatment technology levels, Congress also provided for prompt deadlines for achieving more stringent effluent limitations should the technology-based limits not assure achievement of applicable water quality standards. Section 301(b)(1)(C) provides that:

there shall be achieved . . . not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards . . . established pursuant to any State law or regulations (under authority preserved by section 1370 of this title) or any other federal law or regulation, or required to implement any water quality standards established pursuant to this chapter.

33 U.S.C. § 1311(b)(1)(C). See Arkansas, 503 U.S. at 106 ("301(b)(1)(C) expressly identifies the achievement of state water quality standards as one of the Act's central objectives"). Effluent limitations established pursuant to Section 301(b)(1)(C) are generally referred to as water quality-based effluent limitations ("WQBELs"). WQBELs must be included in a discharger's NPDES permit whenever the permitting agency determines that their discharge may have a reasonable potential to cause or contribute to a violation of a water quality standard. 40 C.F.R. § 122.44(d)(1) (Ex. A). Similarly, all discharge permits issued by the Regional Board must be consistent with the Basin Plan. Water Code § 13263(a).

Now that the 1977 achievement deadline has passed, all dischargers must comply with water quality-based effluent limitations necessary to meet any standards applicable to their receiving waters. Any attempt by the State to extend compliance with such limitations after July 1, 1977, violates Congress' clear statutory compliance deadline. The duty to achieve "any more stringent limitation . . . required to implement any water quality standards established" under the Act does not distinguish, even implicitly, between standards enacted prior to July 1, 1977, and those established after that date. Once a water quality standard is established, Congress has decreed that achievement of the subsequently resulting WQBEL cannot be postponed now that July 1, 1977, has passed. See, e.g. United States v. Homestake Mining Co., 595 F.2d 421 (8th Cir. 1979) (holding that, in its 1977 amendments, Congress did not extend the July 1, 1977 deadline of 301(b)(1)(C) for water quality-based effluent limitations) (Ex. E); Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312, 23 ELR 20454, 20457 (9th Cir. 1992) ("[Section 301(b)(1)(C)] requires achievement of the described limitations "not later than July 1, 1977." 33 U.S.C. S 1311(b) (1)(C)") (Ex. F).

The Basin Plan also limits the application of schedules of compliance. The Regional Board may only consider dischargers’ proposals for longer compliance schedules for newly adopted standards as NPDES permit conditions for particular substances, where revised effluent limitations are not currently being met and where justified. Basin Plan at 4-14 (RJN, Ex. 1). See Memo from Betsy M. Jennings, RWQCB, to RWQCB (May 22, 1998) (AR 00931) ("Basin Plan does allow compliance schedules, but only for water quality objectives adopted after the date the compliance schedule language was put into the Basin Plan. . . .") (emphasis supplied). The Basin Plan also mandates that any compliance schedules be "as short as possible." Basin Plan at 4-14 (RJN, Ex. 1). See also 40 CFR § 122.47(a)(1).

Similarly, the Act mandates that states comply with the federal antidegradation policy in order to assure that NPDES permits continue to strive, in waterbodies where standards are not being achieved, towards compliance with those standards. In the Matter of the Petition of Rimmon C. Fay, SWRCB Order No. WQ 86-17 at 9 n. 8 (Nov. 20, 1986) (1986 WL 25526) ("the Porter-Cologne Act requires the State and Regional Boards to apply the federal antidegradation policy when they issue [NPDES permits]") (Ex. G). The Policy also assures that for those waterbodies where standards have been attained, the gains won are not lost over time. The antidegradation requirement mandates that "[e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected." 40 C.F.R. § 131.12(a)(1). Where the quality of waters exceed levels necessary to support beneficial uses, the antidegradation policy authorizes some degradation in limited circumstances as long as existing uses are protected and maintained. 40 C.F.R. § 131.12(a)(2). However, where the quality of waters are less than the levels necessary to support their beneficial uses, these limited exceptions do not apply and all the Regional and State Boards’ decisions, especially in issuing permits, must maintain and protect the uses by further limiting the quantities of problem pollutants discharged to those waters. In the Matter of the Petition of Environmental Health Coalition, SWRCB Order No. WQ 91-10 (Sept. 26, 1991) (1991 WL 214438 at 3) (pursuant to the federal antidegradation policy, discharges of four pollutants, including copper and mercury, found to be impairing San Diego Bay "should be prohibited only if such discharges contribute to violations of water objectives") (Ex. H); Arkansas, 503 U.S. at 101. This requirement is applicable to all delegated state NPDES programs. 40 C.F.R. § 131.12(a)(2); 33 U.S.C. § 1342(b)(1)(A).

In order to facilitate EPA's and the states' ability to identify those waterbodies where water quality standards are not being attained and to adjust NPDES permits and other pollution control programs to remedy those violations, Congress established the Total Maximum Daily Load ("TMDL") program. 33 U.S.C. § 1313(d). Section 303(d) requires each state to identify those waters within its boundaries for which the minimum technology-based effluent limitations "are not stringent enough to implement any water quality standard applicable to such waters." 33 U.S.C. § 1313(d)(1)(A). The resulting list is commonly referred to by the agencies as the "impaired waters list." California’s impaired waters list has been prepared every two years since 1980. 40 C.F.R. § 130.7(d)(1). See Final Staff Report, 1998 Section 303(d) List (March 9, 1998) (AR 01756). Once identified, the State is supposed to establish TMDLs that limit the total amount of a problem pollutant from all of the sources in order to restore the impaired waterbody. 33 U.S.C. § 1313(d); Alaska Center for the Environment v. Browner, 20 F.3d 981 (9th Cir. 1994) (Ex. I).

The federal and state regulations provide for certain types of effluent limitations in NPDES permits. Pertinent to this action is the federal regulations mandate that "[a]ll pollutants limited in [NPDES] permits shall have limitations, standards or prohibitions expressed in term of mass . . . ." 40 C.F.R. § 122.45(f). See also In the Matter of the Petition of Communities For A Better Environment, et al., Order No. WQ 90-5 at 77 n. 31 (AR 01044). Such mass limitations also must comply with the antidegradation policy and other water quality-based effluent limit requirements. Id. at 73-78 (AR 01041-1045).

The North Bay permits also purport to rely on "alternate limits" provided for in the Basin Plan. FSSD Permit, Finding 22(e) (AR 00020) (alternate limit for mercury); Petaluma Permit, Finding 30 (AR 00072) (alternate limits for mercury and copper). In order to justify the issuance of such "alternate limits", at least two prerequisites must be demonstrated: (1)(a) "that all sources of the toxic pollutant are being controlled through application of all reasonable treatment and source control measures," or; (1)(b) the discharger "proposes an alternate effluent limit based on a site-specific water quality objective for that location" and addressing three specific aspects of uncertainty, and; (2) "participates in a program to identify and develop control strategies for nonpoint sources of pollution (urban runoff, agricultural drainage, etc.) within or upstream from that discharger's receiving water segment to reduce uncertainty regarding the discharger's contribution to the total pollutant load." Basin Plan at 4-8 through 4-9.

Lastly, though certainly not least, the Clean Water Act prohibits the issuance of a permit which does not provide for compliance with the Clean Water Act, or regulations promulgated under the Clean Water Act. 40 C.F.R. § 122.4(a). See also Water Code § 13377.

III. FACTUAL BACKGROUND

A. The Cities’ Reclaimed Wastewater Does Not Contribute Any Mercury, Copper or Nickel to the Bay or its Tributaries

On July 15, 1999, the Regional Board issued two NPDES Permits, Nos. CA0037810 and CA0038024 ("Permits") (Waste Discharge Requirements Order Nos. 98-076 and 98-077), to the City of Petaluma and the Fairfield-Suisun Sewer District ("FSSD"), respectively. AR 00067-00135; AR 00011-00064.

For six months each year, the City of Petaluma discharges an average of 5.16 million gallons per day ("MGD") of wastewater to the Petaluma River, a tributary of San Pablo Bay, a northern reach of San Francisco Bay. Permit Fact Sheet at 1 (AR 00289). During the other six months of the year, the plant reclaims a portion of its wastewater by discharging an average flow of 2.96 MGD as irrigation water on agricultural fields. Id. None of that almost 3 MGD of wastewater, including the mercury, copper and nickel carried within it, is allowed to ever reach the River, San Francisco Bay or their tributaries. Id., Finding 7 (AR 00068).

FSSD treats an annual average of 16.0 MGD of wastewater. FSSD Permit, Finding 5 (AR 00011). FSSD discharges an average of 11.8 MGD to Boynton Slough, a waterway within Suisun Marsh tributary to Suisun Slough and Suisun Bay, a northern reach of San Francisco Bay. Id. During the dry weather months, FSSD discharges on average 9.2 MGD of wastewater to Boynton Slough and reclaims approximately 4.2 MGD of wastewater for agricultural irrigation. Id. Like Petaluma, none of that over 4 MGD of wastewater, including its constituent pollutants like mercury, copper and nickel, is allowed to flow into the Bay or its tributaries. Id., Finding 7 (AR 00012).

B. All Three State and Federal Agencies Responsible for Implementing the Clean Water Act in San Francisco Bay Have Found That the Bay is Impaired by Mercury, Copper and Nickel -- Three Toxic Pollutants

Mercury is a highly toxic pollutant. AR 02014. It is particularly insidious because of its penchant for bioaccumulating in food chains, increasing in concentration in the tissue of animals as one moves up the food chain. AR 02015-02021. This is especially true of the most toxic form of mercury, known as methylmercury. AR 02014-02015. Methylmercury is found throughout San Francisco Bay. Id. Studies of fish taken from San Francisco Bay have shown that their tissue is high in concentrations of mercury. AR 02015-02017. As a result, the California Department of Health Services has issued fish consumption advisories to anglers fishing throughout San Francisco Bay to limit their and their families' consumption of Bay fish. Id.

The heavy metals, copper and nickel, also pose toxic risks to the Bay’s aquatic ecosystem. SWRCB Order No. 90-5 at 39 (AR 01006); FSSD Permit, Finding 21 (AR 00019) (designated beneficial use that is most sensitive to copper pollution is habitat for aquatic organisms).

On February 18, 1998, the Regional Board adopted the 1998 Water Quality Assessment of the 303(d) List of Impaired Water Bodies for the San Francisco Bay Region ("1998 303(d) List"). AR 01759. The 1998 303(d) List adopted by the Regional Board includes San Pablo, Carquinez Strait, and Suisun Bay as waterbodies identified as impaired by mercury, copper and nickel. AR 01763-01765. Suisun Marsh is identified by the 1998 303(d) List as impaired by metals. AR 01767. The Regional Board identified the municipal point sources as a source of those impairing pollutants. AR 01763-01765, 01767. On May 27, 1998, the State Board adopted Resolution No. 98-055, setting forth the 1998 303(d) List and TMDL Priority Schedule for California. RJN, Ex. 2 (excerpts). Resolution No. 98-055 approved each of the determinations made by the Regional Board identifying San Pablo Bay, Carquinez Strait and Suisun Bay as impaired by mercury, copper and nickel by, among other sources, the municipal sewage plants. Id. at 10-11, 15-16. The conclusion that mercury, copper and nickel are impairing the northern reaches of San Francisco Bay became unanimous amongst the agencies when EPA, on May 12, 1999, a mere seven weeks prior to the issuance of the North Bay permits, also concurred in the Regional Board’s and State Board’s determinations. 1998 California 303(d) List and TMDL Priority Schedule 12-13, 19-22, 32 (May 12, 1999) (RJN, Ex. 3).

The finding by the agencies that San Pablo Bay, Carquinez Strait and Suisun Bay are impaired by mercury, copper and nickel means that the agencies have determined that the current loadings of those pollutants to those waterbodies do not assure that water quality standards will be achieved in those waters. Petaluma Permit, Finding 32 (AR 00073-74); FSSD Permit, Findings 18(d) & 20 (AR 00017-18). The agency’s listing under Section 303(d) of a waterbody as impaired by a particular pollutant means that waterbody has no more capacity to assimilate additional loadings of the pollutant. See In the Matter of the Petition of Envt'l Health Coalition, et al., SWRCB No. WQ 92-09 (1992 WL 297157 at 5 ("[d]ue to high levels of copper in Bay waters, the Bay has no assimilative capacity for copper") (Ex. J); SWRCB, Antidegradation Policy Implementation for NPDES Permitting (APU 90-004) (June 1990) (RJN, Ex. 4); Letter from Alexis Strauss, EPA, to Lawrence Kolb, RWQCB at 3-4 (Nov. 12, 1999) (""copper, . . . mercury, nickel . . . are already present [in the Bay] at a level . . . that causes impairment to the waterbody") (RJN, Ex. 5); Letter from Alexis Strauss, EPA, to Loretta Barsamian at 1 (July 22, 1999) ("a waterbody at, near, or in excess of water quality standards has no assimilative capacity") (RJN, Ex. 6). If the amount of mercury, copper and nickel being discharged into a waterbody already is at levels that force that waterbody to exceed the applicable water quality standards and impair existing beneficial uses, such as fishing or aquatic habitat, then it is obvious that, in order to "maintain and protect" those uses, the levels of those pollutants discharged must go down. Any increase can only make the problem worse. Any increase can only further degrade the beneficial uses.

C. The North Bay Permits Allow the Cities to Increase Their Loadings of Mercury, Copper and Nickel Discharged to San Francisco Bay

The Regional Board was aware of the actual levels of mercury, copper and nickel discharged by Petaluma and FSSD. Despite the Bay’s impairment by those pollutants, the Regional Board acknowledges that the permits it issued to the cities authorize the cities to increase the annual mass loads of those pollutants that they discharge to the Petaluma River and Boynton Slough.

1. The Permits allow Petaluma and FSSD to increase their mercury loadings to the Bay

As of July 15, 1998, the date the permits were issued, the City of Petaluma’s municipal sewage plant was discharging an annual average of 0.18 kilograms of mercury into the Petaluma River. Petaluma Permit, ¶ 8(b) (AR 00087). As of that date, FSSD was discharging an annual average of 0.56 kilograms of mercury into Boynton Slough. FSSD Permit, ¶ 9 (AR 00032).

The NPDES Permits issued to the City and FSSD on July 15, 1998 included mass effluent limits for mercury that exceeded the quantities of mercury actually discharged by each of the plants. For the City of Petaluma, the 1998 permit mass limit for mercury is 0.6 kilograms per year. Petaluma Permit, ¶ B.8(a) (AR 00087). That mass limit allows approximately 0.42 more kilograms of mercury per year than the plant was discharging at the time the permit was issued. Cf. ¶¶ B.8(a) & 8(b). That mass limit constitutes an increase of approximately 133 percent in the mass of mercury allowed by the new permit to be discharged over the actual performance level of the City’s plant at the time the permit was issued.

For FSSD, the 1998 permit mass limit for mercury is 0.060 kilograms per month. FSSD Permit, ¶ B.6 (AR 00030); ¶ E.17 (AR 00041). Over a one year period, the mass limit allows FSSD to discharge 0.72 kilograms of mercury per year. As a result, FSSD’s mass limit for mercury allows approximately 0.16 more kilograms of mercury per year than the 0.56 kilograms the plant was discharging at the time the permit was issued. Id., ¶ B.9 (AR 00032). The 0.06 kg/month mass limit constitutes an increase of approximately 28.5 percent in the mass of mercury allowed by the new permit over the actual performance level of the City’s plant at the time the permit was issued. See Staff Memo (AR 00954) (for North Bay permits, "trigger level is 30% to 50% lower than the original limit value by taking away the credit we gave on reclamation").

The new mass limits for mercury were established by factoring in mercury discharges by Petaluma and FSSD to both the Bay and agricultural fields, even though wastewater discharges to agricultural fields do not return to the Bay or its tributaries. See, e.g. Petaluma Fact Sheet at 10 (AR 00298) ("[mass] limit credits the discharger for the reclamation during the dry season when no discharge occurs"); Response to Comments (AR 00341-342); Staff presentation, July 15, 1998 (AR 00423-424). Accordingly, the mass limits contained in the Permits authorize the City of Petaluma and FSSD to discharge to the Bay the annual mass of mercury they discharged to the Bay as of the date of issuance of the permits plus the annual mass of mercury that they discharged to fields as of the date of issuance of the Permits. Id. In other words, the permits allow the cities to increase their discharges of mercury by an amount equal to the mass of mercury currently discharged to land.

2. The Permits allow Petaluma and FSSD to increase their copper and nickel loadings to the Bay

The Orders’ do not include any discernable mass limits for copper and nickel. However, as a practicable matter, the permits allow mass discharges of those pollutants up to the design flow capacity of the plant multiplied by the applicable concentration limit. FSSD Permit, ¶¶ A.4 (AR 00028); B.6 (AR 00029-30); Petaluma Permit, ¶¶ A.3 (AR 00084); B.7 (AR 00086).

The design flow capacity of the City of Petaluma’s sewage plant is 5.2 million gallons per day. Petaluma Permit, Finding 5 (AR 00067); ¶ . The City of Petaluma’s effluent limit for copper for the life of the 1998 permit is 14 ug/l. Id., ¶ 7.b (AR 00087). The City of Petaluma’s effluent limit for nickel is 7.1 ug/l. Id., ¶ 7(a) (AR 00086). Based on the three years of performance, the Petaluma plant discharged, at most, about 158.6 pounds of copper per year and 804.5 pounds of nickel per year. The permit, however, allows a total of 221.8 pounds of copper per year and 1124.6 pounds of nickel per year to be discharged. Those are increases of 40 percent, respectively, over the plant’s previous long-term performance.

The design flow capacity of the FSSD’s sewage plant is 17.5 million gallons per day. FSSD Permit, Finding 5 (AR 00011). FSSD’s effluent limit for copper is 20 ug/l. Id., ¶ 6 (AR 00029). FSSD’s effluent limit for nickel is 7.1 ug/l. Id. (AR 00030). Based on the three years of performance, FSSD discharged 846.8 pounds of copper per year and 3006 pounds of nickel per year. The permit, however, allows a total of 1066.1 pounds of copper per year and 3784.7 pounds of nickel per year to be discharged. Those are increases of 30 percent, respectively, over that plant’s previous long-term performance.

D. The Permits Do Not Include Any Water Quality-Based Effluent Limitations For Mercury, Copper Or Nickel

The NPDES Permits issued to the City and FSSD on July 15, 1998, included performance-based effluent limitations for mercury and, in the City's permit, copper. Petaluma Permit, Finding 34(e) & (f) (AR 00076-77) ("[t]his Order establishes an interim performance-based effluent limitation for copper, as well as a [WQBEL] with the [seven year plus potentially three more years] schedule"). Id., Finding 35(d) (AR 00078) (performance-based effluent limit for mercury). Id., ¶ B.7.b n. g (effective limits based on recent plant performance); FSSD Permit, Finding 22(e) (AR 00020) (monthly average mercury limit of 0.092 ug/l "based on 1995-1997 Plant performance and BPJ"). Id. (AR 00021) ("The Board intends to include a final WQBEL in a subsequent permit revision after additional information . . . is developed"); Id., ¶ B.6 n. (e) & (g) (AR 00030) (the "interim effluent limitations" for mercury and copper are "based upon recent (1995-1997) plant performance . . . and [are] . . . for the duration of this permit"). The permits did not include WQBELs for mercury and copper that would be in effect during the life of the permits. Id. See also Transcript (July 15, 1998) (AR 00436) ("[WQBELs] don't go into effect until seven years from now"). The Petaluma permit does not include a WQBEL for copper during the life of the permit. AR 00076-77. The purported basis for the Regional Board including effluent limitations for mercury and copper in the Permits was to implement the narrative toxicity standard set forth in the Basin Plan. Response to Comments at 3, 10 (AR 00343, 00350); FSSD Permit, Findings 21, 22 (AR 00018-20). Nevertheless, the actual, effective limits included in the permit were not based on achieving that objective. Rather, they were based entirely on the plants' existing treatment, factoring in only what the sewage plants had achieved by way of performance over the previous three years.

Further distancing the effluent limits from any connection whatsoever to complying with water quality standards were the lengthy timelines expressed for some day requiring WQBELs. The NPDES Permits issued to the City and FSSD on July 15, 1998, included schedules of compliance for mercury allowing the dischargers at least seven years to come into compliance with WQBELs. Petaluma Permit, ¶ 7.b (AR 00086-87); FSSD Permit, ¶ E.3 (AR 00035). A similar compliance schedule is included in Petaluma's permit for copper. Petaluma Permit, ¶ 7.b (AR 00086-87). Those future WQBELs for copper and mercury become effective, if ever, two years or more beyond the expiration date of the permits. Id.

E. The Permits Include Schedules Of Compliance For Effluent Limitations Implementing Standards That Were In Effect Prior To The Basin Plan’s Inclusion Of A Compliance Schedule Provision

The narrative toxicity standard which the effluent limitations for mercury and copper purport to implement was originally established in the Basin Plan 23 years prior to the issuance of the North Bay permits, in April, 1975. Basin Plan at 4-17 (1975) (RJN, Ex. 2). See FSSD 1985 Permit, ¶ C.1.e (AR 01736) (limit implementing narrative toxicity standard); Petaluma 1982 Permit, ¶ B.e (AR 01673). The amendment of the Basin Plan to include a provision purporting to authorize the Regional Board to establish schedules of compliance in NPDES permits was finalized in 1995. Basin Plan at 4-14. That Basin Plan amendment only applied to standards enacted subsequent to that date. Hence, the toxicity standard was established prior to both Section 301(b)(1)(C)’s July 1, 1977 deadline and the Regional Board’s belated attempt to authorize schedules of compliance. Nevertheless, the North Bay permits include schedules that extend well beyond their five year terms and seek to delay implementation of the now 25 year old narrative toxicity standard.

F. The "Interim Limits" Included In The Permits Were Based On The Basin Plan’s "Alternate Limits" Provision

In the meantime, the Regional Board has included alternate limits for mercury and, in the Petaluma permit, for copper based on the sewage plants' performance. FSSD Permit, Finding 22(e) (FSSD mercury limit based on alternate limit provision of Basin Plan); Petaluma Permit, Finding 30 (00072) (alternate limits for copper and mercury).

IV. ARGUMENT

A. Standard Of Review

In reviewing the two North Bay permits, the Court applies the independent judgment test. Water Code § 13330(d) ("the court shall exercise its independent judgment on the evidence in any case involving the judicial review of a . . . decision or order of a regional board for which the state board denies review under Section 13320 . . ."); Marina County Water District v. State Water Res. Control Bd., (1st Dist. 1984) 163 Cal.App.3d. 132, 136-37. Applying the independent judgment test, the Court is called upon to reweigh the evidence adduced at the administrative hearing to determine whether the findings are supported by the weight of the evidence. Code Civ. Proc. § 1094.5(b); Marina County, 163 Cal.App.3d at 138 ("[I]f the superior court was obligated to exercise independent judgment in reviewing the administrative record, in order to uphold the Board, the court would have had to be convinced by the weight of the evidence that the Board's decision was correct. Simply put, the superior court would have had to agree with the Board, on the basis of the record"). "The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2782, n. 9 (1984) (Ex. K).

B. The North Bay Permits Violate The Federal Antidegradation Policy

1. The North Bay permits allow additional discharges of impairing pollutants despite the inability of the Bay to assimilate additional quantities of these pollutants in violation of the federal antidegradation policy (First and Second Claims for Relief)

The administrative record demonstrates beyond any doubt that the two permits issued to Petaluma and FSSD authorize the two plants to increase the loads of mercury, copper and nickel from the annual levels that they were discharging at the time the permits were issued. These increases have been authorized for discharges into waterbodies that already are impaired by each of those three pollutants. Allowing two of the major dischargers to increase their loads of mercury, copper and nickel that they dump into North Bay waters which have no existing capacity to assimilate those pollutants is an obvious violation of the antidegradation policy. See Rimmon C. Fay, SWRCB Order No. 86-17 (1986 WL 25526 at 10) (Ex. G) (sewage plant's actual increase by 10% of mass emission rate of suspended solids and permit's allowance of rate to "more than double" triggers application of antidegradation policy"); CBE, SWRCB No. WQ 90-5 at 77 (AR 01044) (allowed increases in pollutant loadings of 33 to 80% triggered antidegradation requirements).

As described above, the antidegradation requirement mandates that "[e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected." 40 C.F.R. § 131.12(a)(1); In the Matter of the Petitions of Friends of the Sea Otter and Dep't of Fish & Game, SWRCB Order No. WQ 90-1 (Jan. 18, 1990) (1990 WL 15109 at 15) ("The federal antidegradation policy requires that existing instream water uses be fully protected") (Ex. L). Although providing a very limited exception allowing some degradation in waters "[w]here the quality of waters exceed levels necessary to support" its beneficial uses, those exceptions do not apply to already degraded waters, such as the waters of north San Francisco Bay because of excessive discharges of mercury, copper and nickel. 40 C.F.R. § 131.12(a)(2). In those degraded waters, only the first mandate applies – to maintain and protect all existing uses, especially, for example, fishing. See, e.g. Envt'l Health Coalition, SWRCB Order No. 91-10 (1991 WL 214438 at 3-4) (first paragraph of antidegradation policy applies to waters violating standards; second paragraph applies to high quality waters, i.e., waters achieving standards).

The State Board already has held, in regards to sewage plant discharges of copper and nickel in South San Francisco Bay, that the federal and state antidegradation policies forbid the agencies to increase the loadings of impairing pollutants. The State Board instead found that the policies require that, at a minimum, new permits lock in the current loadings of the plants in order to comply with the antidegradation policy in those impaired waters. In that 1990 Order, considering a petition relating to the South San Francisco Bay sewage plants, the State Board articulated the following principles:

In order to comply with the federal antidegradation policy, the mass loading limits should also be revised, based on mean loading, concurrently with adoption of revised effluent limits. The [mass] limits should be calculated by multiplying the [previous year’s] annual mean effluent concentration by the [four previous year’s] annual average flow.

Order No. WQ 90-5 at 78 (AR 01045). The reason the State Board ordered the mass limit equation revised was to hold the South Bay plants to their actual performance so as not to violate the antidegradation policy:

The South Bay permits allow both an increase in the volume of the discharges, as well as an increase in the mass emissions of toxic pollutants over current levels. To illustrate, the actual 1989 mass emissions from the three treatment plants was 47,600 pounds per year (lbs/yr). Allowable mass emissions under the revised mass emission limits total 67,968 lb/yr. Thus, the permits allow a lowering of surface water quality below the highest levels achieved since 1975, and the federal [antidegradation] test must be applied. Likewise, State Board Resolution No. 68-16 is applicable.

Order No. WQ 90-5 at 73 (emphasis added). Hence, the State Board’s Order finds that any mass limit that fails to lock in the highest levels achieved since 1975 must comply with the antidegradation policy.

The same antidegradation policy and reasoning must apply to the northern waters of San Francisco Bay. Because the Petaluma and FSSD permits allow an increase in the mass emissions of mercury, copper and nickel into waters already impaired by those toxic pollutants, the permits allow a "lowering of surface water quality" below achieved levels. See Rimmon C. Fay, SWRCB Order No. WQ 86-17 (1986 WL 25526 at 10). See also, e.g. Rivers Unlimited, Inc. v. Schregardus, 685 N.E.2d 603, 609 (Ohio 1997) ("degradation of high quality waters occurs whenever there is an increased amount of pollutants") (Ex. M); Columbus & Franklin County Metropolitan Park District v. Shank, 600 N.E.2d 1042, 1057 (Ohio 1992) (Ex. N).

Because of the Bay’s existing impairment, the Regional Board could not legally apply the limited exceptions to the antidegradation policy. Environmental Health Coalition, SWRCB Order No. WQ 91-10 (1991 WL 214438 at 3-4) (Ex. H). Without resort to those exceptions, the policy mandates that uses be not only maintained, but protected as well. Id. The Permits must at least lock in the plants’ best discharge performance as of the date of permit issuance. Permits allowing dischargers’ loading of impairing pollutants to expand do no such thing and are inconsistent with the Clean Water Act and its regulations. Rimmon C. Fay, SWRCB Order No. WQ 86-17 (1986 WL 25526 at 10) ("increase in suspended solids and associated bacteria [that "may contribute to a violation of water quality objectives"] is inconsistent with the requirement that 'existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected").

2. The Regional Board's creation of an additional exemption to the antidegradation policy in order to accommodate the North Bay dischargers is inconsistent with existing law (Third Claim for Relief)

The Regional Board grafted an additional exemption onto the antidegradation policy in order to accommodate the cities’ desire to expand their pollution discharges without regard to the impaired status of the Bay. In calculating the plants’ past loadings of mercury, copper and nickel discharged to the Bay, the Regional Board decided to include the loadings that the plants’ discharged to agricultural fields. AR 00298; 00341-342. As discussed above, those discharges are part of the plants’ wastewater reclamation efforts. None of the wastewater discharged to fields ever reaches the Bay or its tributaries (nor could it legally). See, e.g. AR 00068. Hence, the Regional Board did not consider the plants’ actual mass emissions of mercury, copper and nickel to the Bay. Instead, the Board treated the plants’ performance as if they conducted no reclamation at all. All the discharges that never reached the Bay were treated as if they were discharged directly into the Bay. That twisting of reality served, in the Board member’s minds, to elevate the past mass emissions levels and justify allowing more mass emissions of impairing pollutants to be allowed into the far-reaching future.

The Regional Board explained that its decision to make believe that agricultural fields were now part of San Francisco Bay was because they did not want to punish the cities for having implemented their previous wastewater reclamation efforts. See FSSD Permit, Finding 28 (AR 00024). That attempt to build a reclamation reward into the federal and state antidegradation policies is simply without authority. Rimmon C. Fay, SWRCB Order No. WQ 86-17 (1986 WL 25526 at 10). As the federal antidegradation policy mandates, states must abide by its minimum terms. 40 C.F.R. § 131.12(a)(2). Although the states are free to formulate more stringent antidegradation policies for their waters, they are not permitted to expand the limited exceptions included in the federal policy. 33 U.S.C. § 1370.

3. The Regional Board's decision to exempt nonbioaccumulative pollutants from the terms of the antidegradation policy is inconsistent with law (Fourth Claim for Relief)

Likewise, the Regional Board also attempts to graft on a second exemption to the antidegradation policy based on whether an impairing pollutant is bioaccumulative or not. The Regional Board attempts to justify its decision to allow the cities to increase their loadings of copper and nickel based on their finding that those two pollutants do not bioaccumulate in the Bay’s food chain. Staff Response at 8 (AR 00348). The antidegradation policy contemplates no such dangerous distinction. Indeed, the State Board, in the past, has vigorously applied the antidegradation policies to copper and nickel. Order WQ 90-5 (AR 01032-1045).

4. Respondents decision that issuing mass limits allowing increases in the mass of copper, mercury and nickel does not violate the antidegradation policy is not supported by respondents' findings that the bay is impaired by those three pollutants (Fifth Claim for Relief)

The Regional Board fails entirely to explain how permits allowing the cities to increase the mass of mercury, copper and nickel that they discharge into the Bay are consistent with their contemporaneous findings that the northern part of the Bay is impaired by those very three pollutants. Compare FSSD Permit, Findings 18(d) & 20 (AR 00017-018) (Bay is impaired with copper and nickel and FSSD contributes to those impairments) with ¶¶ A.4 (AR 00028) & B.6 (AR 00029-30); Petaluma Permit, Findings 31(b) & 32 (AR 00073-74) with ¶¶ A.3 (AR 00084), 7 & 8 (AR 00086-88). There is no evidence in the administrative record that refutes the almost contemporaneous decisions by the Regional and State Boards as well as U.S. EPA, that the northern reaches of San Francisco Bay have been determined to be impaired by mercury, copper and nickel. Indeed, the permits’ findings reflect these previous decisions. There is no evidence in the record that suggests that the permits do not allow the cities to increase their mass discharges of these impairing pollutants. There is nothing in the record that demonstrates how increased loadings of pollutants already impairing the Bay will not further degrade water quality in the Bay.

5. The evidence in the record does not support a finding that increased discharges of mercury, copper and nickel can comply with the antidegradation policies (Sixth Claim for Relief)

That serious disconnect between the Regional Board’s and other agencies’ findings that the Bay is impaired by mercury, copper and nickel is underscored by the absence of any data or other hard evidence cited to in the record that explains how discharges of more mercury, copper and nickel into the Bay will restore its degradation by those pollutants. Indeed, the only relevant evidence indicates the opposite. The Board makes clear that a prerequisite to determining whether the cities can discharge more of these pollutants would be the implementation of a Total Maximum Daily Load for all three pollutants for the North Bay taking into account and presumably regulating all the sources discharging mercury, copper and nickel to the watershed. No such TMDL for copper and nickel in North Bay waters was even begun at the time the permits were issued. FSSD Permit, Finding 23 (AR 00021); Petaluma Permit, Finding 33 (00075). Similarly, not even a publicly-available draft of a mercury TMDL was available at the time the permits were issued. Id. (AR 00022); (AR 00075). Hence, the Regional Board, in effect, admits that it has no evidence to justify increasing loads of those impairing pollutants by the two treatment plants. Nothing else found in the record is even relevant, never mind supports, a conclusion that allowing increases of impairing pollutants contributes to the removal of those impairments. See also, e.g. In the Matter of Las Virgenes Municipal Water District, Order No. WQ 98-11 at 11 ("state’s failure to complete TMDLs cannot be used as an excuse to defer the inclusion of WQBELs in permits as required by Clean Water Act section 301(b)(1)(C)") (Ex. O).

C. The North Bay Permits Do Not Establish Water Quality-Based Effluent Limits For Mercury And Copper Mandated By The Federal Regulations (Seventh Claim for Relief)

The administrative record leaves no doubt that the only effluent limitations for mercury and copper included in the challenged permits are based entirely on the two plants’ treatment technology’s performance. The limits are not based in any way on their affect on the receiving waters or the ability of those waters to safely assimilate the discharges. FSSD Permit, Finding 22(e) (AR 00020) monthly average mercury limit of 0.092 ug/l "based on 1995-1997 Plant performance and BPJ"); Petaluma Permit, Finding 34(e) & (f) (AR 00076-77) ("[t]his Order establishes an interim performance-based effluent limitation for copper, as well as a water quality based effluent limit with the [seven year plus potentially three more years] schedule"). Id., Finding 35(d) (AR 00078) performance-based effluent limit for mercury). Id., ¶ B.7.b n. g (effective limits based on recent plant performance). As a result, the limits for mercury and copper fail to abide by the Act’s mandate that WQBELs be issued where a discharge will cause or contribute to a violation of a water quality standard. 40 C.F.R. § 122.44(d).

Shortly before the final hearing held by the Regional Board on the two North Bay permits, staff attempted to create the facial appearance that the permits included WQBELs. For example, subsequent to circulating the last tentative Petaluma order to the public and the day before the last public hearing, staff edited the Permit and its Fact Sheet to assert that the permit contained WQBELs for copper and mercury. RWQCB Hearing, Supplemental Item (July 14, 1998) (AR 00333-338) (see new, underlined text stating, for example, ""[i]n addition to interim limits, [WQBEL] are included in this Order"). Prior to those supplemental edits, the four previous versions of the Petaluma permit released for public comment stated that they did not include WQBELs, citing to staff's oft-repeated contention that WQBELs were not feasible for lack of site-specific data. See Petaluma Draft Permit, Finding 32 (July 7, 1998) (AR 00241) (WQBELS established "except for copper and mercury"); Id., Finding 34(f) (AR 00245) (no WQBEL for copper yet established); Id., Finding 35(d) (AR 00246) (future revision of permit may include WQBEL for mercury). The same holds true for the FSSD permit's mercury limit. FSSD Tentative Permit, ¶ B.6 n. h (AR 00548) ("interim permit limitation [for mercury] is justified pending the development of adequate data upon which a final limitation may be based"); FSSD Tentative Permit, Staff Report (July 15, 1998) (AR 00138) ("A final WQBEL for mercury will be included in a future permit revision"); FSSD Tentative Permit, Finding 22.e (AR 00149) ) ("Board intends to include a final WQBEL in a subsequent permit revision").

The assertions in the record that the North Bay permits actually contain WQBELs for mercury and, in the case of Petaluma, copper are not supported by the vast bulk of the record which makes clear that the only effective limit contained in the permits was based on the plants' performance. The record is clear that any future WQBELs would not be established or in effect any earlier than July 15, 2005, or perhaps as late as July 15, 2008, or even later. See FSSD Permit, ¶ D.3 (AR 00035) ("[t]his permit establishes a water quality based effluent limit of 0.012 ug/L for which compliance will be required within seven years of the effective date of the permit"); ¶ E.3 (AR 00035). Petaluma Permit, Finding 32 (AR 00073) ("[f]or copper and mercury, WQBELs are established with compliance schedules" and, in the interim, must comply with "interim performance based limits"). The permits expire on July 15, 2003. FSSD Permit, ¶ E.28 (AR 00044); Petaluma Permit, ¶ F.24 (AR 00099). It is entirely arbitrary for the permits to find that they include WQBELs for mercury and copper when any such WQBELs would not either be effective or even established until the next round or two of permits.

Moreover, the record is clear that the permits' were merely dressed up with WQBELs that the Board does not intend to maintain, enforce or otherwise implement within the life of the permit, in order to attempt to justify admittedly illegal performance-based limits. See Staff Memo, Elizabeth M. Jennings to RWQCB staff (May 22, 1998) (AR 00931) ("see if you can come up with a WQBEL that we can justify and live with"). Up until the eve of the July 15, 1998, hearing on the final North Bay permits, staff had emphasized over and over again their belief that establishing WQBELs for mercury and copper was not feasible. Supra. Suddenly, as the process came to a close, that oft asserted belief was dropped and -- you can almost see staff winking -- WQBELs were purportedly included, but they would never see the light of day during the life of the permits in which they were supposedly included. No factual evidence regarding the feasibility of WQBELs in the record changed from the initial tentative permits through the final hearing. Nothing in the record explains staff's about face on the feasibility of WQBELs except, of course, their counsel's admonitions that permits without WQBELs would not be defensible. The purported inclusion of WQBELs is not supported by the weight of staff's almost unanimous assertions that such WQBELs were infeasible and unsupported by site specific data found throughout the record.

Despite that sleight of hand, as both EPA and RWQCB staff previously emphasized, the absence of WQBELs, even an absence devised by long compliance schedules, is illegal. Hearing Transcript at 16 (May 20, 1998) (AR 00806-807) (Statement of Doug Liden, EPA) ("without WQBELs assuring that these objectives [mercury and copper] are met in the [outfall] pipe there is a serious deficiency"); Id. at 38 (AR 00828) (Statement of Elizabeth M. Jennings) ("if under the EPA regs you need to establish a [WQBEL], you're not allowed to not do that and just have a time schedule for developing it"). By conjecturing that the necessary WQBELs would be established in future permits, the Regional Board did exactly what their counsel noted was illegal - the Board merely created a time schedule, much of which is unenforceable (see infra. at 29), for establishing WQBELs. No WQBELs are actually included or otherwise to be implemented by these permits. See AR 01391 ("[i]f BayKeeper challenges not including WQBELs for constituents like copper and mercury we could lose, but I think you have given it your best shot").

D. The North Bay Permits Include Unauthorized Schedules To Comply With Limits For Mercury And Copper To Be Established In Future Permits (Eighth Claim for Relief)

1. The Schedules of Compliance are not authorized by the Basin Plan

As explained above, the Basin Plan includes a provision purporting to authorize the inclusion of schedules of compliance as effluent limitations in permits. Basin Plan at 4-14. As is discussed below, that broad authority for compliance schedules is inconsistent with the Clean Water when applied to NPDES permits. However, even assuming that Basin Plan authority is applicable to the permits at hand, it can only be applied to limits implementing new water quality standards established subsequent to the inclusion of the compliance schedule authority in the Basin Plan. Memo from Elizabeth M. Jennings, SWRCB, to RWQCB Staff (May 22, 1998) (AR 00931) (Basin Plan only allows compliance schedules "for water quality objectives adopted after the date the compliance schedule language was put into the Basin Plan") (emphasis supplied); Id. ("I am concerned that a NPDES permit for the North Bay communities with compliance schedules for WQBELs will violate Star Kiste Caribe").

All of the standards that the Regional Board claims to be implementing or should be implementing in issuing the North Bay permits were in place prior to its inclusion of compliance schedule authority in the Basin Plan. Compliance schedule authority was originally established in the Basin Plan in 1995. At the time the permits were issued, the Basin Plan included numeric water quality criteria for mercury and copper. Basin Plan at 3-9 and 10 (Table 4-3) (RJN Ex. 1); AR 00485-86. Those numeric standards were originally established in the Basin Plan in 1992. AR 00019. Likewise, the narrative toxicity standard was originally established in the Basin Plan in 1975. RJN, Ex. 2. It is clear that, as of 1995, when compliance schedule authority was added to the Basin Plan, there was nothing new about the narrative toxicity standard and several years also had passed since the promulgation of the numeric criteria for mercury, copper and nickel. Hence, on its face, the Basin Plan’s compliance schedule authority does not apply to limitations based on those pre-existing standards.

2. The schedules of compliance are not authorized by the Clean Water Act

Section 301(b)(1) includes an express deadline of July 1, 1977, for permittees to comply with "any more stringent [effluent] limitation, including those necessary to meet water quality standards . . . or schedules of compliance. . . or required to implement any water quality standards established pursuant to this chapter." 33 U.S.C. § 1311(b)(1)(C) (emphasis added). After that deadline, all dischargers must comply with water quality-based effluent limitations necessary to meet any standards applicable to its receiving waters. Any attempt by the State to extend compliance with such limitations beyond July 1, 1977, or the date such limitations are applied to the discharger, violates Congress' clear statutory compliance deadline.

An interpretation of Section 301(b)(1)(C) that allows each State to extend the deadline for compliance with WQBELs runs afoul of the numerous cases acknowledging Section 301(b)(1)'s firm guideposts. Any such interpretation would eliminate Congress' deadline from that section, lead to different timetables in each of the fifty states and guarantee that the Clean Water Act's objectives, including achieving fishable and swimmable waters by 1983 and beyond, will not be achieved.

a. Section 301(b)(1)(C) establishes a firm deadline for complying with water quality-based effluent limitations beyond which no extensions can be granted by the State

Numerous courts have held that neither the EPA nor the states have the authority to extend the deadlines for compliance established by Congress in Section 301(b)(1). See State Water Control Board v. Train, 559 F.2d 921, 924-25 (4th Cir. 1977) ("Section 301(b)(1)'s effluent limitations are, on their face, unconditional.") (Ex. P); Bethlehem Steel Corp. v. Train, 544 F.2d 657, 661 (3d Cir. 1976), cert. denied sub nom. Bethlehem Steel Corp. v. Quarles, 430 U.S. 975 (1977) ("Although we are sympathetic to the plight of Bethlehem and similarly situated dischargers, examination of the terms of the statute, the legislative history of [the Clean Water Act] and the case law has convinced us that July 1, 1977 was intended by Congress to be a rigid guidepost") (Ex. Q). This deadline applies equally to technology-based effluent limitations and water quality-based effluent limitations. See Dioxin/Organochlorine Ctr. v. Rasmussen, 1993 WL 484888 at *3 (W.D. Wash. 1993), aff'd sub nom. Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517 (9th Cir. 1995) ("The Act required the adoption by the EPA of ‘any more stringent limitation, including those necessary to meet water quality standards,’ by July 1, 1977.") (citation omitted) (Ex. R); Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312, (9th Cir. 1992) ("[Section 1311(b)(1)(C)] requires achievement of the described limitations ‘not later than July 1, 1977.’ ") (citation omitted) (Ex. F). Any discharger not in compliance with a water quality-based effluent limitation after July 1, 1977, violates this clear congressional mandate. See Save Our Bays and Beaches v. City & County of Honolulu, 904 F. Supp. 1098, 1122-23 (D. Haw. 1994) (Ex. V).

b. After July 1, 1977, all WQBELs must be achieved when they are established in NPDES permits.

WQBELs necessary to implement water quality standards established after July 1, 1977, must be complied with immediately upon establishment. First, the plain language of Section 301(b)(1)(C) extends the deadline to any WQBEL necessary to implement any water quality standard established pursuant to the Act. Congress applied its deadline to all WQBELs, without room for implicit exceptions. Second, WQBELs only apply once a water quality standard is established and applicable. Subparagraph (C) requires "more stringent limitations necessary to meet water quality standards . . . established pursuant to any State law . . . or required to implement any applicable water quality standard established pursuant to this chapter." 33 U.S.C. § 1311(b)(1)(C) (emphasis added). Congress did not mandate that all water quality standards for the life of the Act be established by July, 1977. Congress mandated that there shall be achieved by July 1977 and from that date forward compliance with any established standards. Even where those standards are updated and become more stringent after 1977, a process required to occur every three years (33 U.S.C. § 1313), section 301(b)(1)(C) requires dischargers to achieve immediately the limitations necessary to comply with those more stringent standards.

This point was explained by EPA itself, in describing the same deadline and limited extension request established by Congress for the achievement of "secondary treatment" standards by municipal sewage plants. Writing in 1985, EPA stated: "All other permits [besides those granted a limited extension until July, 1988] must contain a requirement to meet secondary limits at the time of issuance, since (as stated above) the final compliance date for these POTWs was July 1, 1977." Save Our Bays, 904 F.Supp. at 1123 (quoting Memorandum from Jack Ravan, EPA Assistant Administrator for Water, to Regional Administrators (Apr. 12, 1985) (emphasis added) (Ex. V). Likewise, once the July 1, 1977 deadline for achieving water quality-based effluent limitations passed, any subsequent permits must contain a requirement to meet those WQBELs as of the date of issuance.

The Seventh Circuit firmly rejected an argument that the deadlines in Section 301(b)(1) are only dates by which discharges would begin efforts to begin complying with more stringent WQBELs. In United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977) (Ex. T), U.S. Steel argued that section 301(b)(1)(C) allows the July 1, 1977 deadline to be met simply by beginning action on a schedule of compliance that eventually would result in achieving the BPT and water quality-based limitations. Id. at 855. The Court of Appeals disagreed with that circular reasoning:

We reject this contorted reading of the statute. We recognize that the definition of 'effluent limitation' includes 'schedules of compliance,' section 502(11), which are themselves defined as 'schedules . . . of actions or operations leading to compliance' with limitations imposed under the Act. Section 502(17). It is clear to us, however, that section 301(b)(1) requires point sources to achieve the effluent limitations based on BPT or state law, not merely to be in the process of achieving them, by July 1, 1977.

Id. The Regional Board's de facto WQBEL policy attempts a similarly contorted reading. The North Bay permits will put off achieving the necessary effluent limitations for 27 years or more beyond Congress' deadline.

c. Any requirement by the state that allows permit limitations extending the WQBEL compliance deadline beyond July 1, 1977, is less stringent than the requirements of the Act and forbidden by § 510

The Act also forbids States from extending schedules of compliance under the guise of more lenient authority to implement its water quality standards. Section 510 of the Act provides that a State "may not adopt or enforce any effluent limitation . . . which is less stringent than the effluent limitation . . . under this chapter. . . ." 33 U.S.C. § 1370. Section 301(b)(1)(C) incorporates the requirements of section 510, 33 U.S.C. § 1370, requiring NPDES permits to include only more stringent limitations necessary to meet water quality standards, performance standards, or schedules of compliance "established pursuant to any State law or regulation (under authority preserved by section 1370 . . . ." 33 U.S.C. § 1370 (emphasis added). Hence, once again on its face, section 301(b)(1)(C) precludes any hesitation in implementing the Act’s clear goals.

Likewise, Section 303(e)(3)(A) also reiterates the critical requirement that State-issued effluent limitations and schedules of compliance be at least as stringent as Section 301(b)(1), including the WQBEL deadline. 33 U.S.C. § 1313(e)(3)(A). Section 303(e)(3)(A) requires that water quality management plans prepared as part of the State's continuing planning process include "effluent limitations and schedules of compliance at least as stringent as those required by section 1311(b)(1) . . . ." Id. (emphasis added). For a compliance schedule to be as stringent as Section 301(b)(1) means it cannot defer compliance with WQBELs after July 1, 1977.

Lastly, Section 303(f) of the Act provides that "[n]othing in this section [303] shall be construed to affect any effluent limitations or schedule of compliance required by any State to be implemented prior to the dates set forth in section 1311(b)(1) and 1311(b)(2) of this title nor to preclude any State from requiring compliance with any effluent limitation or schedule of compliance at dates earlier than such dates. 33 U.S.C. § 1313(f) (emphasis added). The obvious corollary to that language, consistent with plain meaning of numerous other provisions of the Act, is that Congress did not authorize the States to extend the compliance dates established in Section 301(b)(1).

d. Related provisions of section 301 make clear that compliance schedules to achieve water quality-based effluent limitations cannot extend the Act's deadline

A reading of Section 301(b)(1)(C) as authorizing States to extend the firm deadline established in section 301(b)(1)(C) is inconsistent with the express terms of the provisions added to the CWA by Congress in 1977 which provided limited extensions to that specific deadline. "Under the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to the contrary." Schoen v. Department of Forestry & Fire Protection, 58 Cal. App. 4th 556, 573 (1997).

Section 301(i), 33 U.S.C. § 1311(i), provides for a limited extension of the Section 301(b)(1)(C) compliance deadline for municipal sewage plants encountering funding delays, providing for "a schedule of compliance for the [POTW] based on the earliest date by which such financial assistance will be available from the United States and construction can be completed, but in no event later than July 1, 1988 . . . ." Id. Thus, it is strikingly clear that, even where a POTW was entitled to some relief from Section 301(b)(1)(C)'s July 1, 1977 deadline, the State and EPA are precluded from issuing a schedule of compliance to a POTW to comply with a WQBEL beyond July 1, 1988.

The same extension of the schedule of compliance established by Congress in Section 301(b)(1)(C) also was provided for industrial dischargers who intended to discharge into POTWs who received an extension of the July 1, 1977 deadlines under § 301(i)(1). 33 U.S.C. § 1311(i)(2). Section 301(i)(2) provides for a schedule of compliance beyond July 1, 1977 that "shall extend beyond the earliest date practicable for compliance or beyond the date of any extension granted to the appropriate [POTW] . . ., but in no event shall it extend beyond July 1, 1988 . . . ." 33 U.S.C. § 1311(i)(2)(B).

Lastly, in Section 309(a)(6), 33 U.S.C. § 1319(a)(6), Congress authorized EPA to issue an enforcement order including a schedule of compliance extending section 301(b)(1)(C)'s July, 1977 compliance deadline to "the earliest date practicable, but not later than July 1, 1983 . . ." to dischargers not eligible for the time extensions provided at section 301(i) Id. (emphasis added). The notion that a State can extend the deadline for WQBELs for a decade or more is not in any way consistent with Congress' clear instruction that no compliance schedule extend beyond July 1, 1983, and even then only for a small category of dischargers. Such a notion is even less consistent with Congress clear intent that all other dischargers had to comply with all WQBELs assigned to them subsequent to July 1, 1977.

Because Congress extended the section 301(b)(1)(C) deadline for specific discharges, Congress did not alter the deadlines previously applicable to all other dischargers. In United State v. Homestake Mining Co., the Eighth Circuit Court of Appeals ruled that an enforcement extension authorized by section 309(a)(2)(B) for the BPT deadline did not also extend the WQBEL deadline. The Court pointed to Congress' decision to extend only specified deadlines: "Having specifically referred to [WQBELs] in the contemporaneously enacted and similar subsection [309](a)(6), the inference is inescapable that Congress intended to exclude extensions for water quality- based permits under subsection [309](a)(5) by referring therein only to Section 301(b)(1)(A) [BPJ]." 595 F.2d at 428 (8th Cir. 1979) (citing generally H.R.Conf.Rep. No. 95-830, 95th Cong., 1st Sess. 88- 89, Reprinted in (1977) U.S.Code Cong. & Admin.News, pp. 4463-64) (Ex. E). See also Schoen, 58 Cal. App. 4th at 573.

e. The Act's legislative history supports the plain meaning of the language of section 301

In the CWA's legislative history, Congress reiterated its intent that schedules of compliance not extend beyond its compliance deadlines. Congress envisioned such schedules as necessary to assure that the deadlines it mandated in 1972 for achieving WQBELs were achieved: "It is . . . made clear that the term effluent limitation includes schedules and time tables of compliance. The Committee has added a definition of schedules and time-tables of compliance so that it is clear that enforcement of effluent limitations is not withheld until the final date required for achievement." Sen. Rep. No. 92-414 at 77 (emphasis added).

An earlier Senate Report shows that Congress did not intend for "phased compliance" subsequent to the clear deadlines ultimately enacted in section 301(b)(1)(C): "The Committee intends that . . . there be appropriate phased compliance with revised or new standards adopted pursuant to section 303(c) of this Act, not later than January 1, 1976 [later changed to July 1, 1977]. . . . [T]he Committee intends that if the sum of the discharges from point sources meeting such effluent limitations would preclude the meeting of water quality standards . . . promulgated pursuant to section 303, new and more stringent effluent limitations would have to be established consistent with such water quality standards." Sen. Rep. No. 92-911 (March 11, 1972) at 101-02.

Congress expressly approved of the series of circuit court decisions finding that the deadlines of section 301(b)(1) were firm. In the Senate Report leading to enactment of the limited exceptions to those deadlines described above, Congress’ stated: "Under existing law there are no circumstances that justify a time for compliance extending beyond July 1, 1977. . . ." Sen. Rep. No. 95-370 at 60 (July 28, 1977). Likewise, the Senate Report stated: "The committee expects the Administrator . . . to proceed swiftly to enforce effluent limitations applicable to pollutants . . . which would clearly interfere with attainment and maintenance of that water quality which assures the protection of public water supplies and the protection and propagation of a balanced, indigenous population of fish, shellfish, and wildlife, and allows recreational activities, in and on the water." Sen. Rep. No. 95-370 at 8 (July 28, 1977).

Hence, Congress clearly intended that any compliance schedules expire as of its express deadline and that the July 1, 1977, deadline applied to any limitations necessary to meet revised standards established under section 303(c).

3. The schedules of compliance violate the Clean Water Act's mandate that NPDES permits be established for fixed terms not exceeding five years

The 10 plus year compliance schedules also must be rejected because they exceed five years and are not for a fixed term. The Clean Water Act and EPA's regulations mandate that NPDES permits must be for fixed terms not exceeding five years. 33 U.S.C. § 1342(b)(1)(B); 40 C.F.R. § 122.46(a); Citizens For A Better Environment v. Union Oil Co. of Cal., 83 F.3d 1111, 1120 (9th Cir. 1996) (Ex. X); NRDC v. EPA, 915 F.2d 1314, 1319 (9th Cir. 1990) (Ex. Y). In CBE v. Unocal, the Ninth Circuit warned against extending the terms of permit's beyond their five-year life span. The Court of Appeals upheld a district court decision finding that a cease and desist order ("CDO") that provided for a compliance schedule longer than the five year life of the applicable NPDES permit could not be included in the permit because it purported to extend a compliance schedule beyond the term of the permit. The Court held that, "there is a five year duration on the life of an NPDES permit that the 'effective modification' asserted here would violate." 83 F.3d at 1120. Likewise, a seven to ten year compliance schedule extends the substantive requirements of a permit beyond the five-year limit established by the Act.

4. A compliance schedule beyond the term of a permit is unenforceable and inconsistent with EPA's definition of a compliance schedule

A compliance schedule longer than a five-year permit term is inconsistent with the compliance schedules defined by the Clean Water Act. "Schedule of compliance" is defined by the Act as "a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, other limitation, prohibition or standard." 33 U.S.C. § 1362(17) (emphasis added); 40 C.F.R. § 122.2 ("Schedule of compliance means a schedule of remedial measures included in a ‘permit’. . .). The Permits' attempt to "issue" schedules that extend compliance for five years or more beyond the duration of the permits are unenforceable schedules. Statements in a permit's findings regarding future permits' implementation of a currently open-ended compliance schedule are not effluent limitations and are not enforceable by the agencies. At best, such statements amount to mere speculation as to the intent and possible decisions of future Regional Board actions.

Likewise, a schedule of compliance that extends beyond the five-year term of a permit does not lead to compliance with an effluent limitation that actually exists. At best, such a schedule leads to a draft permit, the terms of which cannot be determined five years in advance.

5. A compliance schedule longer than five years undermines the public's right to comment on future NPDES permits

A compliance schedule extending beyond the life of a permit also frustrates public participation and is inconsistent with the Act's permit issuance process. Applications for the reissuance of existing permits must be received within 180 days of the expiration of the existing permit [see 40 C.F.R. § 122.21(d)], and the public is guaranteed by law notice of each application for a permit and an opportunity for public hearing before a ruling on each such application. 33 U.S.C. § 1342(b)(3). If a five-year permit includes a longer compliance schedule, the public's opportunity to comment on that schedule when the Board attempts to carry it forward in the subsequent five-year permits will have been eviscerated because, to have any meaning at all, the compliance schedule issue already would have been decided in promulgating this current proposed amendment.

6. The seven to ten year compliance schedules established by the Board are not as soon as possible as required by the Basin Plan and the federal regulations

The Basin Plan mandates that any compliance schedules be "as short as possible." Basin Plan at 4-14 (RJN, Ex. 1). Likewise, the federal regulations require that any appropriate schedules of compliance "shall require compliance as soon as possible. . . ." 40 CFR § 122.47(a)(1). The North Bay permits do not include any findings that the schedules of compliance for WQBELs are "as short as possible." Nothing in the record discusses whether that criteria was met by the dischargers. Indeed, the only rationale provided in the record for the length of the compliance schedules was staff's estimated timeline for completing possible TMDLs for copper and mercury. Hearing Transcript at 29 (July 15, 1998) (AR 00461) (Statement of Loretta Barsamian) ("the reason why it's seven years is we feel strongly that we need time to do the TMDL"); Hearing Transcript at 4 (June 17, 1998) (AR 00515) (Statement of Shin Roei Lee) ("[w]ith regard to the seven-year time schedule, our intent is to tie the time schedule with [the TMDLs]"). There is no rationale or evidence demonstrating that the compliance schedules for WQBELs for mercury and copper are as short as possible. Indeed, the Regional Board's rationale is tantamount to granting dischargers relief from WQBELs based solely on the Board's illegal delay in preparing TMDLs or otherwise protecting beneficial uses. There could be no better recipe for assuring the failure of a program than for two wrongs to make a right.

E. The North Bay Permits Establish Alternate Limits Without Demonstrating The Prerequisites Established In The Basin Plan (Ninth Claim for Relief)

The Regional Board relies on the Basin Plan’s "alternate limit" provision in order to justify the interim limits for mercury and copper in the North Bay permits. FSSD Permit, Finding 22(e) (FSSD mercury limit based on alternate limit provision of Basin Plan); Petaluma Permit, Finding 30 (00072) (alternate limits for copper and mercury). Nothing in the administrative record shows that the Basin Plan’s mandatory prerequisites for issuing such alternate limits were ever considered or supported by any evidence. Indeed, the only relevant statement found in the record is staff's acknowledgement that the dischargers do not meet the prerequisites for alternate limits. Memo from Elizabeth M. Jennings, to RWQCB Staff (May 13, 1998) (AR 01391). As staff explained:

I still do not think that you have adequate findings to support alternate limits. The Basin Plan, at 4-8, requires that the alternate limit must be based on a site-specific WQO. While we have plans to eventually adopt one, I think this provision requires that the site-specific objective already be in place. Second, the discharger must demonstrate that all sources of the toxic pollutant are being controlled. I don't think that has been or can be shown, and there is no finding at all in the permit. If alternative limits are contested, I think the State Board or a court would find that you do not have adequate support or findings.

Id. The Board’s application of the Basin Plan's alternate limit requirements was entirely arbitrary.

V. CONCLUSION

BayKeeper respectfully requests the Court to issue the proposed peremptory writ of mandate accompanying this points and authorities, vacating portions of the North Bay permits and instructing the Regional Board to immediately modify the permits 1) to include appropriate and immediately effective WQBELs for mercury and, in the case of Petaluma, copper and 2) mass limits for mercury, copper and nickel that lock in the plants' true performance.