Victory for Clean Water In California

Court ruling will reduce toxic pollutants discharged from industrial and municipal sources into surface waters


Mike Sherwood, Earthjustice, 510-550-6725

A California Court of Appeals in San Francisco ruling on October 24, 2002, will require Regional Water Quality Control Boards to ratchet down the levels of highly toxic pollutants being discharged by major industrial and municipal polluters into surface waters throughout the state.

Earthjustice, on behalf of a coalition of California clean-water groups, had challenged the California Water Resources Control Board’s Inland Surface Waters Plan because it failed to ensure that discharges of toxic pollutants into California waters will meet water quality standards as required by the federal Clean Water Act. The plan instead created a number of gaping loopholes that polluters could use to evade the act’s requirements.

“This is a significant victory for clean water in the state of California,” said Earthjustice staff attorney Michael R. Sherwood, who argued the case for the plaintiffs. “It means that big industrial and municipal dischargers in the state will continue to be bound by the more stringent federal limits on priority toxic pollutants, rather than the more lenient minimum levels. These are the really bad pollutants–the worst of the worst–that cause cancer, birth defects, and brain damage, that are being discharged into the water that we drink, swim in, and eat fish from.”

Most of California’s inland surface waters–lakes, rivers, bays, and estuaries–are polluted by toxics discharged from municipal and industrial sources subject to regulation through state-issued permits. These toxics, which include mercury, arsenic, PCBs, and dioxin, can be extremely poisonous to fish, wildlife, and humans, and may persist in the biosphere for decades.

The particular provision at issue–called the Minimum Levels Provision–allowed industries and municipalities to discharge priority toxic pollutants in amounts greater than allowed by the U.S. Environmental Protection Agency. The provision in effect substituted a less stringent “minimum level” for some 38 pollutants in waste discharge permits issued by regional boards.

The Court of Appeal held that, as written, the provision would violate federal and state clean water laws. Instead of invalidating it, however, the court “interpreted” the provision as meaning that minimum levels may be utilized “only for the purpose of defining reporting requirements and providing a guideline for [administrative] enforcement by Regional Boards,” and not as a substantive discharge limit.

“This decision means that the regional boards and dischargers will have an incentive to improve detection technology for these toxic pollutants, which are incredibly dangerous even in very small, hard-to-detect amounts,” Sherwood said. “This decision gives us hope that the state will continue to make progress toward one of the ultimate goals of the Clean Water Act, complete elimination of these toxic pollutant discharges into our water.”

The ruling comes in a case brought by Earthjustice on behalf of WaterKeepers Northern California, Santa Barbara ChannelKeeper, Santa Monica BayKeeper, Orange County CoastKeeper, San Diego CoastKeeper, and Heal the Bay.

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