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TOXICS LIMBO

A March court decision makes California the only state in the union without water quality standards for toxics, at least temporarily, and has all involved parties wondering what the others will do next.

The plaintiffs, five Bay-Delta dischargers, brought the lawsuit against the California Water Resources Control Board because "statewide plans and permits imposed conditions we couldn't meet and placed us in potential violation..." says the City of Sunnyvale's attorney Bob Thompson. The lawsuit challenged standards for toxics discharge established in the state's inland waterways and enclosed bays and estuaries plans. It accused the Board of failing to adequately address environmental, economic and hydrographic considerations in its plans, considerations required under its own laws and codes. "There's flexibility in their laws to apply standards based on real-life local conditions, and they didn't use it," says Thompson.

The judge ruled in favor of the dischargers. "The [Board] has not merely failed to comply with technicalities," reads the court decision. "It has exceeded its statutory authority...Allowing the standards to remain in effect is not appropriate."

Though the state lost the lawsuit, it's happy about two changes made in the final decision that could save it from a mind-boggling plan readoption process. Deputy Attorney General Cliff Lee says the process is now "doable" because the Board will not have to evaluate impacts of its plans on each of the state's thousands of waterways on an individual basis. "We pled that this was impossible," says Lee. The court agreed. Second, the state will not have to do an impact analysis of every possible treatment option that a discharger might undertake to meet toxics standards. But it must "generally assess" such consequences of its plans, and "generally" is a word Lee likes. "We got half a loaf," he says.

With the state's plans now invalid, a third party enters the scene. The Clean Water Act says that if states don't have standards, EPA must promulgate them. "EPA's the gorilla in the closet," says the S.F. Regional Board's Michael Carlin. EPA's Diane Frankel says her agency has already begun the promulgation process, but warns that the court decision has taken away flexibility about how fast dischargers must comply with standards and where compliance is measured - at the end of the pipe or out in the mixing zone. "The state plans are where the authority exists to do compliance schedules and mixing zone policies," says Frankel. "We don't prohibit these implementation options, but we have no mechanism for using them. We want the state to readopt its plans as fast as possible, so we don't have to complete our promulgation."

Aftershocks of the decision are already reverberating down to the state's regional water quality boards, to which some dischargers are suggesting that reissued permits not include effluent limits for toxics. Environmentalists are concerned that the State Board will use the decision to put off getting tough on industry. Contact: Diane Frankel (415)744-1988

BDOC MAKES ROUNDS

JoAnn Landingham suggested she might have to switch from water to tequila if the state doesn't get on the ball and develop some new water supplies. The Tehama County councilwoman traveled all the way to San Francisco to share her water worries at a May 12 Bay-Delta Oversight Council public meeting. About twenty people turned out for the meeting - one of six recently held around the state. "BDOC's focus is the fair and complete evaluation of options for solving what is perhaps the most vexing and longstanding of California's resource issues," said State Resources Secretary Doug Wheeler at the meeting, referring to the 19-member Council's mandate to come up with long-term plans for solving Delta water supply and environmental problems. The Council is now meeting monthly, and five new technical advisory committees have been busy behind the scenes. Asked how BDOC's work will fit in with revived State Water Board efforts to establish interim Delta water quality standards, Council staffer Greg Zlotnick said, "There's no direct meshing, but we are coordinating." Contact: Greg Zlotnick (916)657-2666

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