Environmental
Jul. 24, 2002
Judge Gets Tough on Dioxin Level
SAN FRANCISCO - Environmentalists Monday said a San Francisco Superior Court judge's rejection of looser limits on dioxin releases from an East Bay oil refinery could result in tougher water pollution restrictions statewide.
Judge James McBride tossed out the weaker limits established in 2000 by the San Francisco Regional Water Quality Board for the refinery, now owned by the Tesoro Petroleum Corp. Communities for a Better Environment v. State Water Resources Control Board, 319575.
McBride ruled that the federal Clean Water Act, which state agencies implement in California, requires regulators to go beyond the available technological means when setting limits in water pollution permits. McBride signed the decision July 15, and it was made public Friday.
"In many cases water quality standards may still not be achieved even when dischargers use the best available technology," McBride said. "In those instances, permits must be more stringent than technology-based limits in order to meet standards."
Environmentalists said the decision should spur the development of more stringent limits on water pollution in certain areas.
"The ruling closes a loophole that would have stalled water quality improvements for a decade or more," said Leo O'Brien, the head of the San Francisco BayKeeper organization. "The water boards will now be forced to change dozens of illegal permits."
BayKeeper and Communities for a Better Environment sued the State Water Resources Control Board last year. The action came after the state board upheld the San Francisco regional board's decision establishing interim dioxin limits that were about four times less stringent than the standards that had been in place.
McBride said that limit was improperly based on what the plant could do rather than on what was needed to clean up the water.
The interim limit for the highly toxic chemical was to remain in effect for about 10 years while regulators put together a broad program to control virtually all sources of pollution into the bay, known as a total maximum daily load, or TMDL.
By 2012, the former Tosco refinery, near Avon, was to comply with the yet-to-be-established pollution control plan. If no TMDL had been developed, the plant was to meet an alternative limit that would require the refinery to either discharge no dioxins or to offset its pollution with reductions at other facilities on the bay.
McBride said pinning the permit to a TMDL that had yet to be established violated the act. He said such permits must set water-quality-based limits "for a particular pollutant whenever the permitting agency determines that the discharge of the pollutant has a reasonable potential to cause or contribute to a violation of water quality standards."
He added that the permit must set numeric limits on the quantities of toxin permitted in bay water.
Attorneys for CBE and BayKeeper said they believe the San Francisco board and other water regulators in California had used the development of the TMDL plans to put off setting the stricter limits.
"They've been, in effect, using TMDLs to delay controls [on pollution] rather than implementing them," said Michael Lozeau, an Earthjustice Legal Defense Fund attorney in Palo Alto who represented the environmental groups.
However, Clifford Lee, a deputy attorney general who represented the regulatory agencies, said he was unaware of any other Bay Area facilities with similar permit conditions. He said that the permit eventually could have limited the refinery to zero dioxin discharges, "and we thought zero was a number."
Lee said no decision had been made on whether to appeal the ruling.
Sheila Vassey, senior staff counsel for the state water board, said the panel had scheduled a closed-door session July 31 to discuss the decision. She declined to speculate on its potential impact.
An attorney for the refinery did not return a call seeking comment.
Dennis Pfaff
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