Did someone ask this question at the "workshop"?

At the sewer workshop last Thursday night, someone(was it Dorsey Smith?) asked the panelists if they had to consider the costs to the community when setting permits. I believe the response was that they didn't. They should have been aware of this ruling.

We've paid a lot of money for legal services during this long wastewater plant process. If anyone was interested in protecting you - the citizen and ratepayer - some action legal action would have been implemented. But then there may have been lost financial opportunities for consultants and contractors.

Alert: Ruling Opens the Door for Review of Economic Factors in Wastewater Discharge Permits
April 11, 2005
In a closely watched case interpreting California and federal water law, the California Supreme Court ruled on April 4, 2005 that Regional Water Quality Control Boards ("Regional Boards") must consider the economic costs of compliance with wastewater discharge permit restrictions if they impose restrictions that are more stringent than those required by federal law. City of Burbank v. State Water Resources Control Board, 2005 WL 742810 (Cal.).

Under the federal Clean Water Act, 33 U.S.C. §§ 1251-1387, water quality standards at the national level are implemented through the use of "effluent limitations" contained in National Pollution Discharge Elimination System ("NPDES") permits issued to dischargers. Individual states authorized to issue NPDES permits can impose more stringent pollution restrictions than federal law requires, so long as they are consistent with and at least as protective of water quality as the national standards. California has been authorized to issue NPDES permits and, through the Porter-Cologne Water Quality Control Act ("Porter-Cologne Act"), the nine Regional Boards have authority to set water quality standards and to issue NPDES permits for the discharge of pollutants into navigable waters.

In City of Burbank, the Los Angeles Regional Board ("LA Board") adopted a basin plan to improve the water quality of the Los Angeles River and its estuary. Narrative water quality criteria in this plan were incorporated into the LA Board’s issuance of renewed NPDES permits for the plaintiff wastewater treatment plants. Specifically, these NPDES permits imposed new numeric restrictions on the discharge of over 30 toxic pollutants in the treated wastewater. At no point during the process of developing these restrictions did the LA Board consider the plants' cost of compliance.

The wastewater treatment plants challenged the restrictions on the grounds that they were onerous and economically infeasible. For example, the City of Los Angeles estimated its compliance costs would exceed $50 million annually and the City of Burbank estimated the added costs at over $9 million annually, which would almost double its annual budget.
The California Supreme Court sided with the wastewater treatment plants, concluding that the Porter-Cologne Act specifically required a Regional Board to consider the cost of compliance, if the pollution restrictions are more stringent than required under federal law. Because it was not clear from the record whether or not the conditions imposed by the Regional Board were more stringent than federal law required, the court remanded the case for further factual determinations.

At this point, it is difficult to gauge the practical impact this case will have on the issuance of NPDES permits in California. The California Supreme Court was unable to determine, and the government agency parties were unable to clearly explain, whether the NPDES permit conditions in question were the same as, or more stringent than, those required by federal law. This led to a candid (and justified) concurrence from Justice Brown, who castigated the government for its inability to provide clear answers and inspired her to paraphrase from the lyrics of singer Marvin Gaye that the Regional Board's actions "make me wanna holler and throw up both my hands."

Because of the intertwining of federal and state water quality standards in the federal Clean Water Act, as implemented by the Porter-Cologne Act, we cannot yet predict how often, and in what circumstances, the Regional Board must take economic factors into account.
However, this case is important because it opens the door for NPDES permit applicants to present evidence of the economic impact of proposed effluent restrictions that exceed those required nationally. The ruling also legitimizes a new legal ground for an applicant to challenge certain discharge restrictions that will be expensive to implement.