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Office of Administrative Law Accepts CSPA Petition: Regional Board accused of adopting and using illegal regulation
August 7, 2009 -- Susan Lapsley, the Director of the Office of Administrative Law (OAL) has informed the California Sportfishing Protection Alliance (CSPA) that the Agency has reviewed and accepted our petition alleging that the Central Valley Regional Water Quality Control Board's (Regional Board) has “issued, used, enforced or attempted to enforce an underground regulation.” Specifically, CSPA alleges that the Regional Board's policy for salinity control (CV-Salts) is an underground regulation in violation of law. OAL will now begin the formal assessment of the Regional Board policy.
The following timetable has been established for a final decision: 14 August 2009, publication of the petition in the Notice Register; 14 September, deadline for public comment; 28 September, deadline for Agency Response; 15 days following Agency Response, deadline for Petitioner Rebuttal: 14 December, deadline for OAL decision.
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. The Regional Board's policy for salt control (CV-Salts), as outlined in the Management Guidance for Salinity in Waste Discharge Requirements, was never adopted through formal procedures outlined in the APA. The policy ignores legally promulgated state and federal regulations and illegally extends the timeframe for controlling discharges of salts thereby ensuring increased degradation and pollution of state and federal waters by salinity based pollutants.
Salts (or salinity) is a pervasive pollutant prevalent in wastewater effluent. Numerous waterways, including the San Joaquin River and San Joaquin Delta, are identified as “impaired” and incapable of supporting identified beneficial uses because of salinity. Groundwater basins throughout the Central Valley are impaired because of salinity. Excessive salinity is damaging to irrigated agriculture, sources of drinking water and freshwater aquatic life.
In an effort to avoid costly upgrades to treatment facilities, municipal and industrial dischargers have heavily lobbied the Regional Board to ignore long-existing regulatory mandates in the federal Clean Water Act and California's Porter-Cologne Water Quality Control Act that require dischargers to control salt in wastewater discharges. Under the law, where a reasonable potential exists to cause or contribute to a violation of a water quality objective, wastewater discharge permits must contain final enforceable effluent limits to prevent pollution and degradation of the state's surface and ground waters.
The Regional Board acquiesced to discharger demands and established a policy that grants discharges interim “performance-based” limits that allows them to continue to discharge salts at current levels. The policy establishes compliance schedules of 15-20 years for the discharger to conduct studies and implement vague unenforceable salinity reduction programs. Since the law only allows compliance schedules of 5 years for surface water discharges and 10 years for discharges to land, the Regional Board policy instructs permit writers to avoid placing compliance schedules in “enforceable parts of the permit” to avoid mandatory penalties. __
The OAL petition is an attempt to resolve the issue within an administrative context.