CSPA files second petition with Office of Administrative Law, claims Regional Board Policy relating to water hardness to be Underground Regulation in Violation of Law

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CSPA files second petition with Office of Administrative Law, claims Regional Board Policy relating to water hardness to be Underground Regulation in Violation of Law

June 11, 2009 -- CSPA has petitioned California's Office of Administrative Law (OAL) to declare the Central Valley Regional Water Quality Control Board's (Regional Board) policy for addressing water hardness in developing wastewater permits to be an “underground regulation” in violation of law. The hardness of water is fundamentally important in evaluating the potential of metals in waste discharges to waterways to violate water quality standards. It is also crucial in developing specific limits for metals in wastewater permits that are protective of aquatic ecosystems. Metals can be extremely toxic to aquatic life.

Federal Regulations explicitly mandate the use of receiving water (ambient) hardness values in assessing the potential for hardness-dependent metals to violate water quality standards and in developing limits for these metals in permits. Simply put, the hardness of the receiving water, unaffected by the waste discharge, must be used.

In issuing wastewater permits State agencies are required to adopt regulations to enforce or implement the laws they administer. These regulations must be adopted through formal rule-making procedures established by the Administrative Procedure Act (APA) of the California Government Code.

In an effort to reduce the costs of treatment facility upgrades, dischargers have been pressuring the Regional Board to relax regulatory requirements. Acquiescing to this pressure, the Regional Board has begun to ignore federal regulations and use a different methodology for evaluating hardness-dependent metals.

This new approach employs effluent and downstream hardness values to assess reasonable potential and develop effluent limits. However, this new policy is contrary to promulgated regulations and has never been evaluated or adopted through legally mandated rule-making procedures. The Regional Board's use of this unproven methodology has resulted in fewer and less stringent and, consequently, less protective limits for metals in numerous wastewater permits.

The new policy violates long-existing regulations in the federal Clean Water Act and California's Porter-Cologne Water Quality Control Act. CSPA believes it is a contributing factor in the decline of fisheries in the Central Valley.

The OAL petition is an attempt to resolve the issue within an administrative context. Should that prove unsuccessful, CSPA is prepared to litigate the issue. The Law Office of Andrew Packard and Lozeau/Drury LLP are representing CSPA in this matter.