Environmental Press # 303

In a message dated 8/10/2003 5:52:19 PM Pacific Standard Time, Jon V3 writes:

standards promulgated by the EPA, which restrict the quantities, rates and concentrations


Subj: OOG: New Legal Theory To Get Rid of All The 301(h) Waivers
Date: 8/10/2003 8:52:19 PM Eastern Daylight Time
From: Jon V3
To: Jon V3
Dear OOG:

Here is a new legal theory approach to getting rid of all of California's waivers, from the Goleta group Heal The Ocean. What say you, lawyers from NRDC, Surfrider, Lawyers for Clean Water?

Jan Vandersloot (949) 548-6326


August 7, 2003
Mr. Daniel N. Frink
Office of Chief Counsel
State Water Resources Control Board
P.O. Box 100
Sacramento, CA 95812-0100

RE: SWRCB File A-1494

Petition of Goleta Sanitary District (Resolution No. R3-2002-0077-NPDES Permit No. CA0048160) Denying Certification and Denying Concurrence in Reissuance of Goleta Sanitary District's Permit and 301(h) Waiver, Central Coast Region

Dear Mr. Frink:

This letter is submitted on behalf of Heal the Ocean and Santa Barbara Channelkeeper, and responds to the June 26, 2003 Memo to you from Jennifer Soloway, counsel for the Central Coast Regional Water Quality Control Board ("Regional Board"), and the July 11, 2003 to you from Mullen & Henzell LLP, counsel for Goleta Sanitary District ("GSD"). I regret any delay in this response, but both the memo and the letter were not sent to my clients or me. I was informed of the issue by Ms. Soloway because my clients had not provided any response. Since I was taking the Alaska Bar Exam when I learned of this issue, this is the timeliest response we could supply given the circumstances.

We appreciate your consideration of this issue. As Ms. Soloway points out, it is fundamental to any decision regarding GSD's Clean Water Act section 301(h) waiver ("301(h) Waiver").

Clean Water Act section 301(h) provides that U.S. EPA may only issue a waiver from secondary treatment requirements if "there is an applicable water quality standard specific to the pollutant for which the modification is requested, which has been identified under section 1314(a)(6) of this title." 33 U.S.C. § 1311(h)(1) (emphasis added). In her memo, Ms. Soloway details her research and the determination by State Board staff that the Total Suspended Solids ("TSS") standard in the Ocean Plan is a technology-based standard rather than a water quality based standard. The difference between the two standards is a very important distinction.

This distinction was explained in City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996):

The Clean Water Act provides two measures of water quality. One measure is an "effluent limitations guideline." Effluent limitations guidelines are uniform technology-based standards promulgated by the EPA, which restrict the quantities, rates and concentrations of specified substances discharged from point sources. See 33 U.S.C.§§ 1311, 1314. The other measure of water quality is a "water quality standard." Unlike the technology-based effluent limitations guidelines, water quality standards are not based on pollution control technologies, but express the desired condition or use of a particular waterway. Water quality standards supplement technology-based effluent limitations guidelines "so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels." EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 n. 12, 96 S.Ct. 1022, 2025 n. 12, 48 L.Ed.2d 578, (1976). . . . There are three elements of water quality standards under the Clean Water Act: (1) one or more designated "uses" of each waterway (e.g., public water supply, recreation, or agriculture) consistent with the goals of the Act as articulated in 33 U.S.C. § 1251; (2) "criteria" expressed in numerical concentration levels or narrative statements specifying the amount of various pollutants that may be present in the water and still protect the designated uses; and (3) an anti-degradation provision. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.

Id. at 419, fn. 4 (emphasis added).

The TSS and pH standards that GSD is required to comply with under its NPDES permit and the Ocean Plan are effluent limitations. See California Ocean Plan, p. 11. The effluent limitations are based on advanced primary treatment, which is a pollution control technology, not the desired condition or use of the Pacific Ocean. Thus, the TSS standard is not a water quality standard, but a technology-based standard.

Mullen & Henzell LLP's July 11, 2003 letter on behalf of GSD misses the point. The letter correctly points out that water quality standards may be narrative or numeric; however, the question is not what kind of water quality standard exists, but whether a water quality standard exists.

Because there is no applicable water quality standard specific to TSS, the standard that GSD seeks a 301(h) waiver from, the State and U.S. EPA cannot grant GSD the waiver.

Thank you for the opportunity to provide these comments. We look forward to a draft Order and the October Workshop and Hearing.

Very truly yours,

Vicki Clark

cc: Roger Briggs, Central Coast Regional Water Quality Control Board
Jennifer Soloway, Counsel for Central Coast Regional Water Quality Control Board
Richard G. Battles, Mullen & Henzell LLP
Kamil S. Azoury, GSD
Terry Oda, EPA Region 9
Lori Okun, State Water Resources Control Board
Heal the Ocean
Santa Barbara Channelkeeper

Back to T.O.C. 3