Petition for Writ of Certiorari — City and County of San Francisco, California, Petitioner v. Environmental Protection Agency
Supreme Court briefJan 8, 2024
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In The
Supreme Court of the United States
-----------------------------------------------------------------CITY AND COUNTY OF SAN FRANCISCO,
Petitioner,
v.
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
-----------------------------------------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
-----------------------------------------------------------------APPENDIX VOLUME I
-----------------------------------------------------------------CITY AND COUNTY OF
SAN FRANCISCO
DAVID CHIU
San Francisco City Attorney
YVONNE R. MERÉ
Chief Deputy City Attorney
TARA M. STEELEY
Chief of Appellate Litigation
JOHN S. RODDY
ESTIE M. KUS
Deputy City Attorneys
1 Dr. Carlton B. Goodlett Pl.
San Francisco, CA 94102
January 8, 2024
BEVERIDGE & DIAMOND, P.C.
ANDREW C. SILTON
Counsel of Record
JOHN C. CRUDEN
RICHARD S. DAVIS
1900 N Street N.W., Suite 100
Washington, DC 20036
(202) 789-6000
asilton@bdlaw.com
MACKENZIE S. SCHOONMAKER
825 3rd Avenue, 16th Floor
New York, NY 10022
Counsel for Petitioner
City and County of
San Francisco
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COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
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APPENDIX TABLE OF CONTENTS
Page
VOLUME I
U.S. Court of Appeals for the Ninth Circuit,
Opinion, July 31, 2023 ..................................... App. 1
United States Environmental Protection Agency,
Region IX, Notice of Final Permit Decision,
December 12, 2022 ......................................... App. 77
United States Environmental Protection Agency,
Region IX, and California Regional Water
Quality Control Board, San Francisco Bay Region, Waste Discharge Requirements and National Pollutant Discharge Elimination System
Permit ............................................................. App. 80
Attachment A – Definitions ......................... App. 141
Attachment B – Facility and Receiving Water
Maps ............................................................. App. 156
Attachment C – Process Flow Schematics..... App. 163
Attachment D – Standard Provisions ......... App. 166
Attachment E – Monitoring and Reporting
Program ........................................................ App. 190
VOLUME II
Attachment F – Fact Sheet .......................... App. 246
Attachment G – Regional Standard Provisions, and Monitoring and Reporting Requirements ................................................... App. 332
Attachment H – Pretreatment Requirements ... App. 374
ii
APPENDIX TABLE OF CONTENTS – Continued
Page
Environmental Appeals Board, United States
Environmental Protection Agency, Order
Denying Review, December 1, 2020 ............. App. 402
U.S. Court of Appeals for the Ninth Circuit, Order Denying Petition for Rehearing En Banc,
October 10, 2023........................................... App. 487
Text of 40 C.F.R. § 122.44(d), (k) ..................... App. 488
United States Environmental Protection Agency,
Region IX, and California Regional Water
Quality Control Board, San Francisco Bay Region, Response to Written Comments ......... App. 493
App. 1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY AND COUNTY
OF SAN FRANCISCO,
Petitioner,
No. 21-70282
Environmental
Protection Agency
v.
U.S. ENVIRONMENTAL
PROTECTION AGENCY,
OPINION
Respondent.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted March 17, 2022
San Francisco, California
Filed July 31, 2023
Before: William A. Fletcher, Ronald M. Gould,
and Daniel P. Collins, Circuit Judges.
Opinion by Judge W. Fletcher;
Dissent by Judge Collins
SUMMARY*
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National Pollutant Discharge
Elimination System Permits
The panel denied the City and County of San Francisco’s petition for review of a final order of the U.S.
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
App. 2
Environmental Protection Agency (“EPA”) denying review of San Francisco’s federal National Pollutant Discharge Elimination System (“NPDES”) permit for its
Oceanside combined sewer system and wastewater
treatment facility.
The NPDES permit, which was issued pursuant
to the Clean Water Act of 1972 (“CWA”), 33 U.S.C.
§§ 1251-1387, allows San Francisco to discharge from
its wastewater system into the Pacific Ocean, and
includes (1) two general narrative prohibitions on discharges that cause or contribute to violations of applicable water quality standards, and (2) a requirement
that San Francisco update its long-term control plan
for its combined sewer overflows.
The panel held that the EPA had authority under
the CWA to include the two general narrative prohibitions. Noting that Supreme Court precedent, this Circuit’s prior cases, and prior Environmental Appeals
Board decisions support the legality and confirm the
enforceability of general narrative prohibitions in permits issued under the CWA, the panel held that the
two narrative provisions were consistent with the CWA
and its implementing regulations. The panel further
held that the EPA was not required to follow the procedures set forth in 40 C.F.R. § 122.44(d)(1)(i)-(vii) for
deriving pollutant-specific effluent limitations in imposing the general narrative provisions, and that the EPA’s
decision to impose the general narrative provisions
was rationally connected to evidence in the record indicating that a “backstop” to the more specific provisions would be useful in protecting beneficial uses.
App. 3
The panel next held that the EPA had authority
under its Combined Sewer Overflow Control Policy to
require San Francisco to update its long-term control plan for its combined sewer overflows and reevaluate alternatives for its combined sewer overflow
discharges to sensitive areas. The EPA’s ability to require San Francisco to update its long-term control
plan was not conditioned on a finding that water quality standards were not being met and was rationally
supported by evidence in the record.
Dissenting, Judge Collins would grant San Francisco’s petition for review, vacate the challenged permit
conditions, and remand the case to the agency for further consideration. First, the two general narrative
limitations were inconsistent with the text of the
CWA, and, by including them, the EPA fundamentally
abdicated the regulatory task assigned to it under the
CWA. Second, because no determination was made
that San Francisco’s Oceanside System had caused the
violation of any applicable water control standards,
the EPA lacked authority under the Combined Sewer
Overflow Control Policy to impose a condition requiring San Francisco to submit a revised long-term control plan.
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COUNSEL
Andrew C. Silton (argued) and Richard S. Davis, Beveridge & Diamond PC, Washington, D.C.; Estie M. Kus
and John Roddy, Deputy City Attorneys; Sheryl L. Bregman, Utilities General Counsel; Yvonne R. Meré, Chief
App. 4
Deputy City Attorney; David Chiu, City Attorney; San
Francisco City Attorney’s Office; City and County of
San Francisco; San Francisco, California; for Petitioner.
Elisabeth Carter (argued), Attorney; Todd Kim, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice;
Washington, D.C.; Peter Z. Ford, Pooja Parikh, and
Marcela Von Vacano, Attorneys; United States Environmental Protection Agency; Washington, D.C.; for
Respondent.
David Chung and Elizabeth B. Dawson, Crowell &
Moring LLP, Washington, D.C.; Hilary Meltzer, Assistant Corporation Counsel; Georgia M. Pestana, Corporation Counsel of the City of New York; New York City
Law Department; New York, New York; Roberta L. Larson, Somach Simmons & Dunn, Sacramento, California; for Amici Curiae National Association of Clean
Water Agencies, California Association of Sanitation
Agencies, Louisville/Jefferson County Metropolitan
Sewer District, and City of New York.
Marc N. Melnick and Daniel S. Harris, Deputy Attorneys General; Annadel A. Almendras and Myung J.
Park, Supervising Deputy Attorneys General; Robert
W. Byrne, Senior Assistant Attorney General; Office of
the California Attorney General; Oakland, California;
for Amicus Curiae California Regional Water Quality
Control Board, San Francisco Bay Region.
App. 5
James N. Saul, Earthrise Law Center at Lewis & Clark
Law School, Portland, Oregon, for Amici Curiae Law
Professors.
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OPINION
W. FLETCHER, Circuit Judge.
The City and County of San Francisco (“San Francisco”) petitions for review of a final order of the U.S.
Environmental Protection Agency (“EPA”) denying review of San Francisco’s federal National Pollutant Discharge Elimination System (“NPDES”) permit for its
Oceanside combined sewer system and wastewater
treatment facility (“wastewater system”). This NPDES
permit, issued pursuant to the Clean Water Act of 1972
(“CWA”), 33 U.S.C. §§ 1251-1387, allows San Francisco
to discharge from its wastewater system into the Pacific Ocean. San Francisco contends that EPA acted arbitrarily and capriciously, and contrary to the CWA, by
including in the final permit: (1) two general narrative
prohibitions on discharges that cause or contribute to
violations of applicable standards for water quality,
and (2) a requirement that San Francisco update its
long-term control plan (“LTCP”) for its combined sewer
overflows (“CSOs”). We hold that the CWA authorizes
EPA to include in the Oceanside NPDES permit the
challenged provisions, and that EPA’s decision to do so
was rationally connected to evidence in the administrative record. We therefore deny San Francisco’s petition for review.
App. 6
We use a number of acronyms and short-form references in this opinion. For the convenience of the
reader, we list them here.
Acronyms:
•
APA: Administrative Procedure Act
•
CSD: Combined sewer discharge
•
CSO: Combined sewer overflow
•
CWA: Clean Water Act
•
EAB: Environmental Appeals Board
•
EPA: Environmental Protection Agency
•
LTCP: Long-term control plan
•
NPDES: National Pollutant Discharge Elimination System
•
NRDC: Natural Resources Defense Council
•
WQBEL: Water quality-based effluent limitation
•
WQS: Water quality standards
Short-form references:
•
1979 Ocean Plan Exception: California State
Water Board Order No. 79-16
•
Basin Plan: Water Quality Control Plan for
the San Francisco Bay Basin
•
CSO Control Policy or Policy: Combined Sewer
Overflow Control Policy
App. 7
•
CSO Guidance: Combined Sewer Overflows:
Guidance for Permit Writers
•
LTCP Synthesis: San Francisco Wastewater
Long Term Control Plan Synthesis
•
Ocean Plan: Water Quality Control Plan for
Ocean Waters of California
•
Regional Water Board: California Regional
Water Quality Control Board for the San
Francisco Bay Region
•
Strategy: National Combined Sewer Overflow
Control Strategy
•
Wastewater system: combined sewer system
and wastewater treatment facility
I.
A.
Background
Regulation of Combined Sewer Systems
Most cities in the United States, including San
Francisco, operate combined sewer systems. See National Combined Sewer Overflow Control Strategy, 54
Fed. Reg. 37370, 38371 (Sept. 8, 1989). Combined sewer
systems are wastewater collection systems that convey
both sewage and storm water to a treatment plant
through a single set of pipes. 40 C.F.R. § 122.2. During heavy rain or snow, combined sewer overflows
(“CSOs”) can occur when water in the system exceeds
the capacity of the pipes or the treatment plant, leading to discharges of pollutants into surface waters. Combined Sewer Overflow (CSO) Control Policy, 59 Fed.
Reg. 18688, 18689 (Apr. 19, 1994). CSOs are “mixtures
App. 8
of domestic sewage, industrial and commercial wastewaters, and storm water runoff.” Id. They “often contain
high levels of suspended solids, pathogenic microorganisms, toxic pollutants, floatables, . . . and other pollutants.” Id.
Under the CWA, an NPDES permit is required for
the discharge of “any pollutant by any person” from
any “point source” into the navigable waters of the
United States. 33 U.S.C. §§ 1311(a)–(b), 1342(a); 40
C.F.R. § 122.1(b)(1). Municipal CSOs are discharges
from “point sources” under the CWA and therefore require NPDES permits. National Combined Sewer
Overflow Control Strategy, 54 Fed. Reg. at 37371; see
also 33 U.S.C § 1342(q) (identifying CSOs as discharges
subject to the NPDES permitting requirements).
1.
NPDES Permitting System
NPDES permits are issued by both EPA and state
authorities. Under the CWA, EPA may authorize States
to issue NPDES permits for discharges into waters
within the State’s jurisdiction. 33 U.S.C. § 1342(b)–(c).
However, EPA retains authority to issue permits for
discharges into ocean waters more than three miles
from the shore. See id. § 1362(8) (defining the State’s
territorial seas as extending three miles from the
coast). When both state and federal permits are needed
for a particular treatment facility, the permitting processes may be consolidated, and permits may be issued
jointly or separately. 40 C.F.R. § 124.4(c).
App. 9
To issue an NPDES permit for discharges into
ocean waters, state and federal authorities must establish that the discharge will satisfy (1) water quality
standards; (2) effluent limitations—i.e., restrictions on
how much pollutant any point source may discharge;
and (3) antidegradation criteria. 33 U.S.C. § 1342(a),
1343; see also id. §§ 1311 (effluent limitations), 1313
(water quality standards and implementation plans),
1312 (water-quality related effluent limitations), 1317
(effluent limitations for toxic pollutants); 40 C.F.R.
§ 122.44. NPDES permits also include monitoring and
reporting requirements, compliance schedules, and
management practices. See, e.g., 40 C.F.R. §§ 122.41,
122.44.
Water quality standards (“WQS”) specify (1) a
body of water’s “designated use” (e.g., recreation, water
supply, or propagation of fish) and (2) “water quality
criteria” (i.e., numeric or narrative benchmarks to
protect a designated use). Id. §§ 130.2(d), 131.3(b),
131.10(a). State-defined WQS are used as the basis
for specific effluent limitations in NPDES permits.
33 U.S.C. §§ 1311(b)(1)(C), 1370; 40 C.F.R. §§ 122.4(d),
122.44(d)(1), 131.4(a). EPA reviews state-adopted WQS
and is authorized to approve or disapprove them in
accordance with the CWA’s requirements. 40 C.F.R.
§ 131.5(a).
Effluent limitations are defined as “any restriction imposed . . . on quantities, discharge rates,
and concentrations of pollutants which are discharged from point sources into waters of the United
States.” Id. § 122.2 (internal quotation marks omitted).
App. 10
Effluent limitations are typically expressed numerically, in the maximum mass of a pollutant that may be
discharged. See id. § 122.45(f ). Technology-based effluent limitations establish discharge standards based
on levels of effluent quality achievable by certain pollution treatment technologies for different categories
of pollutants. Id. §§ 122.44(a)(1), 125.3(a). Water quality-based effluent limitations (“WQBELs”) establish
more stringent discharge requirements when necessary to meet applicable WQS. 33 U.S.C. § 1311(b)(1)(C);
40 C.F.R. § 122.44(d). Permitting agencies may impose
“best management practices,” or specific operational
requirements or prohibitions, rather than numeric
limitations, if numeric effluent limitations are not feasible. 40 C.F.R. §§ 122.2, 122.44(k)(3).
2.
NPDES Permits for CSOs
In 1989, EPA issued the National Combined Sewer
Overflow Control Strategy (“the Strategy”), which sets
forth its NPDES permitting strategy to control CSOs.
By addressing discharges from combined sewer systems, the Strategy “complement[ed]” the preexisting
regulatory control programs for sanitary sewer systems and separate storm sewer systems. National
Combined Sewer Overflow Control Strategy, 54 Fed.
Reg. at 37371. Recognizing that CSOs “have been
shown to have severe adverse impacts on water quality, aquatic biota, and human health,” EPA sought to
establish a uniform nationwide permitting approach to
control these discharges. Id. The Strategy provided
that under the CWA, “[a]ll CSO discharges must be
App. 11
brought into compliance with technology-based requirements and State water quality-based requirements” using “a combination of CSO control
measures.” Id. According to the Strategy, a municipality’s publicly owned treatment works (water treatment plant) “is responsible for planning and
coordinating a system-wide approach” to CSO control.
Id. at 37372. The Strategy specified that CSO point
sources “discharging without a permit are unlawful
and must be permitted or eliminated.” Id. at 37371.
In 1994, EPA issued the Combined Sewer Overflow Control Policy (“CSO Control Policy” or “Policy”)
as part of its national strategy for CSO control. Combined Sewer Overflow Control Policy, 59 Fed. Reg. at
18688-89. In 2000, Congress made the CSO Control
Policy legally binding when it enacted the Wet Weather
Water Quality Act. Pub. L. No. 106-554, § 112, 114 Stat.
2763, 2763A-224 to 2763A-225 (2000) (codified at 33
U.S.C. § 1342(q)(1)). The CSO Control Policy prohibits
all CSOs that occur in dry weather. Combined Sewer
Overflow Control Policy, 59 Fed. Reg. at 18689. The Policy requires municipalities with combined sewer systems to implement extensive control measures (the
“Nine Minimum Controls”) and to develop and implement a Long-Term Control Plan (“LTCP”) to protect
water quality during wet weather. Id. at 18691.
Under the CSO Control Policy, required minimum control measures include elimination of all dryweather CSOs, control of all “solid and floatable materials in CSOs,” maximization of storage and flow to
the treatment plant during wet-weather events, public
App. 12
notification of CSO occurrences, and ongoing monitoring of CSOs and efficacy of the control measures. Id. A
municipality’s LTCP must address the following “minimum elements”: (1) characterization, modeling, and
monitoring of the combined sewer system and CSOs,
including evaluation of rainfall records; (2) a process
for public participation in LTCP development; (3) special prioritization of control of CSOs into “sensitive
areas,” such as waters used for drinking or recreation; (4) evaluation of alternative control measures
to achieve different benchmarks, such as zero versus
one to three CSOs per year; (5) “cost/performance”
analysis of the control measure alternatives; (6) an operational plan to implement the selected CSO controls;
(7) a plan to maximize wet-weather water treatment
capacity at existing treatment plants; (8) an implementation schedule, including construction phasing;
and (9) a post-construction compliance monitoring program. Id. at 18691–94.
A municipality’s LTCP must adopt one of two approaches to demonstrate that its control program
satisfies the requirements of the CWA: a “Presumption Approach” or a “Demonstration Approach.” Id. at
18692–-93. Under the Presumption Approach, a municipality’s selected CSO control program is presumed
to meet the water quality-based requirements of the
CWA if certain criteria are met. Those criteria include:
no more than an average of four CSOs per year; the
elimination or treatment of at least 85% of the volume of combined sewage collected during wet-weather
events on an annual basis; and equivalent-to-primary
App. 13
treatment of CSOs (including removal of solids and
floatables). Id. Under the Demonstration Approach, a
municipality must demonstrate that its selected CSO
controls will be adequate to meet WQS and protected
designated uses of the receiving waters so as to satisfy
the requirements of the CWA. Id. at 18693. When “natural background conditions or pollution sources other
than CSOs” prevent WQS from being met, the LTCP
must specify “a total maximum daily load” for the receiving waters. Id.
The CSO Control Policy creates a two-phase permitting process for municipalities with combined
sewer systems. Phase I NPDES permits require the
municipality to develop and implement the Nine Minimum Controls and to develop a LTCP. Id. at 18696.
Phase II permits apply to the implementation of approved CSO controls, LTCPs, and post-construction
monitoring. Id. Phase II permits must include provisions requiring the municipality to engage in ongoing
modification and reassessment of their CSO control
measures. Specifically, Phase II permits must include
(1) “[a] requirement to reassess overflows to sensitive
areas . . . based on consideration of new or improved
techniques to eliminate or relocate overflows or changed
circumstances that influence economic achievability”
and (2) “[a] reopener clause authorizing the NPDES
authority to reopen and modify the permit upon determination that the CSO controls fail to meet WQS or
protect designated uses.” Id.
EPA subsequently issued a manual to aid NPDES
permitting authorities in implementing the CSO Control
App. 14
Policy. U.S. Envt’l Prot. Agency, No. 832-B-95-008,
Combined Sewer Overflows: Guidance for Permit Writers (1995) (“CSO Guidance”). The CSO Guidance notes
that “[a]lthough the two-phased [NPDES permitting]
approach may be appropriate if a permittee has not implemented any CSO controls, in many instances, the
separation between permit phases may not be distinct
and permits may contain both Phase I and Phase II
elements.” Id. at 2-2. For example, under the CSO Control Policy, a Phase II permittee may be required to
submit a revised LTCP containing “additional controls” if the NPDES authority determines WQS are not
being met or designated uses are not being protected.
59 Fed. Reg. at 18696. After a municipality has finished
construction of all the CSO control measures required
in a Phase II permit, it may be issued a “post-Phase II
permit,” which includes post-construction compliance
monitoring program requirements to provide ongoing
assessment to determine whether the selected controls
“are achieving compliance with applicable State water
quality standards.” CSO Guidance, supra, at 5-2.
The CSO Control Policy includes exemptions for
communities that, like San Francisco, developed and
began implementing a CSO control plan prior to adoption of the Policy in 1994. 59 Fed. Reg. at 18690. Under
Section I.C.1 of the Policy, communities that had “completed or substantially completed construction” of their
CSO controls are exempt from “the initial planning
and construction provisions” of the Policy, but not from
the “operational plan and post-construction monitoring provisions.” Id. The Section I.C.1 exemption further
App. 15
provides: “If, after monitoring, it is determined that
WQS are not being attained, the permittee should be
required to submit a revised CSO control plan that,
once implemented, will attain WQS.” Id. Under Section
I.C.2, municipalities that had “substantially developed” their CSO control program at the time the Policy
issued are to “complete those facilities without further
planning activities,” but they are not exempt from the
post-construction monitoring provisions of the policy.
Id. Section I.C.3 of the Policy specifies that “[i]n the
case of any ongoing or substantially completed CSO
control effort, the NPDES permit . . . should be revised
to include all appropriate permit requirements consistent with Section IV.B. of this Policy.” Id. Section
IV.B.2.e of the Policy sets forth the requirement that
Phase II permits include provisions for the ongoing
reassessment of overflows to sensitive areas. Id. at
18696.
B.
San Francisco’s Oceanside Wastewater System
San Francisco has two combined sewer systems
and treatment facilities—“Bayside” and “Oceanside.”
The Bayside wastewater system discharges into the
San Francisco Bay from the Eastern side of the city
and is authorized under an NPDES permit issued
solely by the California Regional Water Quality Control Board for the San Francisco Bay Region (“Regional
Water Board”). That permit is not before us. The permit before us is San Francisco’s NPDES permit for its
Oceanside wastewater system, which discharges from
the Western side of the city into the Pacific Ocean at
App. 16
points under state and federal jurisdiction and is thus
authorized jointly by the Regional Water Board and
the U.S. EPA.
San Francisco’s Oceanside system includes the
Oceanside Water Pollution Control Plant, 250 miles of
combined sewers, and the Westside Recycled Water
Project. Oceanside serves approximately 250,000 residents. San Francisco is authorized to discharge from
Oceanside into the Pacific Ocean at eight discharge
points. The primary discharge point, Discharge Point
No. 001, the “Southwest Ocean Outfall,” is more than
three miles from the shore, in United States waters.
The remaining seven discharge points, CSD-001 through
CSD-007, known as “combined sewer discharges” or
“CSDs,” are located close to the shore, in State waters.
CSD-001 through CSD-007 are used when CSOs exceed the capacity of Discharge Point No. 001 during
wet weather.
Under normal conditions, water in the Oceanside
system receives both primary and secondary treatment prior to discharge. During heavy rains, however,
combined waste and storm water can exceed the system’s total 65 million gallons per day capacity and can
be discharged prior to receiving primary or secondary treatment at the Oceanside plant. In such cases,
wastewater receives only “equivalent-to-primary
treatment,” which includes “skimming of floatable solids,” prior to discharge. Four of the seven Oceanside
CSD outfalls are connected to transport and storage
structures that facilitate solid waste removal; however,
three outfalls are not so connected.
App. 17
1.
History of San Francisco’s CSO Control
San Francisco started work on its CSO control
plan in the late 1960s, before the passage of the CWA
in 1972. In 1967, San Francisco was one of the first municipalities in the nation to “characterize” its CSOs
and to recommend improvements in treatment. San
Francisco developed a Master Plan for its wastewater
management in 1971, which included automated monitoring of rainfall and sewer levels, creating a computational model of the sewer system, and conducting
studies to assess water quality. The Master Plan also
proposed a set of controls to reduce the city’s annual
CSO frequency from eighty-two to eight.
After the CWA was enacted, San Francisco modified its Master Plan in order to become eligible for federal construction grants. The 1974 revised Master Plan
was accompanied by an Environmental Impact Report
and Environmental Impact Statement prepared by
EPA and San Francisco that described the environmental impacts of the alternatives for wastewater disposal, including CSOs. In 1976, the Regional Water
Board issued a series of permits and orders requiring
the city to construct facilities to achieve its selected
wet-weather controls.
The California State Water Board adopted the
Water Quality Control Plan for Ocean Waters of California (“Ocean Plan”) in 1972, and has amended it
several times, most recently in 2019. The Ocean Plan
establishes WQS and effluent limitations for the Pacific Ocean within California’s jurisdiction in order to
App. 18
protect the “beneficial uses” of the waters. These beneficial uses include industrial water supply, recreation, fishing, and marine habitat. The Ocean Plan’s
standards, along with the Water Quality Control
Plan for the San Francisco Bay Basin (“Basin Plan”),
are the applicable state WQS for San Francisco’s discharges into the Pacific Ocean under the CWA. See 33
U.S.C. §§ 1311(b)(1)(C), 1370; 40 C.F.R. §§ 122.4(d),
122.44(d)(1), 131.4(a).
In 1979, California State Water Board Order No.
79-16 (“1979 Ocean Plan Exception”) gave San Francisco a limited exception to the Ocean Plan for its wetweather CSOs. The State Water Board recognized that
San Francisco’s “continued use of the wet weather diversion structures” would violate the Ocean Plan’s
water quality objectives, general management requirements, effluent quality requirements, and discharge
prohibitions. The 1979 Ocean Plan Exception exempts
San Francisco from compliance with the Ocean Plan
during wet weather, allowing an average of eight CSO
discharges per year. It requires that San Francisco post
warning signs on all recreational beaches affected by
CSOs and in all areas where shellfish is harvested during periods when the bacteriological standards of the
Ocean Plan are not met. The 1979 Ocean Plan Exception left the door open for the Regional Water Board to
modify the terms of the exception: “[I]f the Regional
Board finds that changes in location, intensity or importance of affected beneficial uses . . . have occurred,
it may require the construction of additional facilities
or modification of the operation of existing facilities.”
App. 19
EPA approved the exception in 1979 and the exception
was continued in the last state Ocean Plan in 2019.
In reliance on the 1979 Ocean Plan Exception permitting its wet-weather sewage discharges into the Pacific Ocean, San Francisco built the Oceanside CSD
transport and storage structures and other CSO controls in the early 1980s. San Francisco completed
construction in accordance with its city-wide Master
Plan, including the Oceanside facilities, in 1997 at a
cost of $1.4 billion. From 1997-2018, Oceanside averaged fewer than its authorized eight CSOs per year
from each discharge point.
2.
Prior Oceanside NPDES Permits
In 1997, EPA and the Regional Water Board issued
San Francisco its first NPDES permit for Oceanside.
The 1997 permit stated that because San Francisco’s
construction projects to control CSOs were “substantially complete,” it was exempt from the “planning and
construction requirements” of the Policy. The permitting authorities determined that San Francisco’s CSO
control program adhered to the CSO Control Policy
through the city’s: (1) implementation of the Nine Minimum Controls; (2) substantial completion of control
program construction such that a new long-term control plan (“LTCP”) was not necessary under Section I.C
of the CSO Control Policy; (3) compliance with the CSO
Control Policy’s “Presumption’ Approach” for ensuring
water quality during wet weather; (4) appropriate consideration of “sensitive areas”; and (5) operation of the
App. 20
Oceanside Water Pollution Control Plant at maximum
capacity during wet weather. The 2003 Oceanside
NPDES permit reflected a similar finding that San
Francisco’s LTCP complied with the “Presumption Approach” outlined in the CSO Control Policy, and it ordered continued implementation of the city’s LTCP.
The 2009 Oceanside NPDES permit, the last permit issued by the EPA and the Regional Water Board prior
to the challenged permit, reflected the agencies’ determination that San Francisco’s CSO control program
“long term plan” was “consistent” with the national
CSO Control Policy’s LTCP requirements. The 2009
permit expired in 2014, but because San Francisco
“timely submitted a permit application,” the 2009 permit continued in effect until issuance of a new permit.
In 2011, San Francisco launched a Sewer System
Improvement Program, a 20-year, nearly $7 billion investment initiative to enhance the reliability and performance of its wastewater system. This program
included major capital improvements to the Oceanside
facilities, including “the construction of the Westside
Recycle Water Project, upgrades to the sludge handling
facilities at the Oceanside Water Pollution Control
Plant, and upgrades to the Westside Pump Station.” As
part of the improvement program, San Francisco also
conducted studies, including cost-benefit analyses,
evaluating the feasibility of further reducing CSO discharges to public beaches.
As presently constituted, San Francisco’s LTCP
is not a single document. Rather, it is a collection
of twenty-three documents. In 2018, San Francisco
App. 21
prepared a summary of these documents in San
Francisco Wastewater Long Term Control Plan Synthesis (“LTCP Synthesis”). San Francisco submitted the
LTCP Synthesis to the Regional Water Board as part
of the NPDES permitting process for its Bayside facilities. Excluding two 1994 documents that were applications for grandfathering status as part of San
Francisco’s 1994 NPDES application for Bayside, the
LTCP includes twenty-one separate planning documents, with dates ranging between 1967 and 1991. San
Francisco explained in its introduction to the LTCP
Synthesis that its “process of planning for, designing,
and constructing projects to minimize and control wet
weather discharge was iterative and extended for
nearly two decades.” Therefore, according to San Francisco, “no single report describes the analyses and assumptions underlying the construction of the City’s
current facilities.”
3.
Challenged NPDES Permit
EPA and the Regional Water Board reissued San
Francisco’s Oceanside NPDES permit on December 10,
2019. The permit sets forth, inter alia, specific dryweather technology and water quality-based effluent
limitations (“WQBELs”) for Oceanside. The permit
specifies that “[d]uring wet weather, the Discharger
shall comply with the narrative water quality-based
effluent limitations contained in Provision VI.C.5.c
(Long-Term Control Plan).”
App. 22
San Francisco petitions for review of two sets of
provisions included in its 2019 Oceanside NPDES permit: (1) two general narrative prohibitions against violating applicable WQS for receiving waters (Section V
and Attachment G; Section I.I.1); and (2) a requirement that San Francisco update its LTCP (Section
VI.C.5.D).
First, the narrative prohibition in Section V provides:
Discharge shall not cause or contribute to a
violation of any applicable water quality
standard (with the exception set forth in [the
1979 Ocean Plan Exception]) for receiving waters adopted by the Regional Water Board,
State Water Resources Control Board (State
Water Board), or U.S. EPA as required by the
CWA and regulations adopted thereunder. If
more stringent water quality standards are
promulgated or approved pursuant to CWA
section 303, or amendments thereto, the Regional Water Board and U.S. EPA may revise
or modify this Order in accordance with the
more stringent standards.
The narrative prohibition in Attachment G titled,
“Regional Standard Provisions, and Monitoring and
Reporting Requirements,” provides: “Neither the treatment nor the discharge of pollutants shall create
pollution, contamination, or nuisance as defined by
California Water Code section 13050.”
Second, for the first time since the 1990s, San
Francisco is required to update its LTCP. Table 7 of
App. 23
the permit lists five major tasks that San Francisco
must undertake to comply with this requirement: (1)
Post-Construction Characterization, Monitoring, and
Modeling of Combined Sewer System; (2) Public Participation; (3) Consideration of Sensitive Areas; (4)
Operational Plan; (5) Post-Construction Compliance
Monitoring Program.
C.
1.
Agency Proceedings
Early Drafts of the Oceanside NPDES Permit
EPA and the Regional Water Board shared an
early draft of the challenged NPDES permit with San
Francisco in 2014 and received comments from San
Francisco in January 2015. Both of the challenged general narrative prohibitions were present in the initial
draft, though in slightly different form than in the final
permit. Notably, the draft Section V limitations on receiving waters included, in addition to the general narrative prohibition, more detailed limitations than in
the final permit. San Francisco suggested revising the
Section V narrative prohibition so that it was limited
to “dry-weather” discharges from Discharge Point No.
001; the city did not comment on the Attachment G
narrative prohibition. The initial draft text regarding
San Francisco’s “Long-Term Control Plan Re-Evaluation” also differed from the LTCP required in the final
permit. Notably, the initial draft permit conditioned
the requirement that the LTCP be updated on the
issuance of a prior determination by the permitting
App. 24
agencies that San Francisco’s discharges had violated
applicable WQS.
In February 2016, EPA requested more information from San Francisco about its CSOs “[f ]ollowing
reports that raw sewage mixed with stormwater was
overflowing . . . into streets, sidewalks, residences
and businesses.” EPA alleged that San Francisco had
failed to include notice of several “widely reported” December 2014 “excursions” in its annual report to the
Regional Water Board. (EPA defined “excursion” as
“the exit of raw sewage or raw sewage mixed with
stormwater from the collection system.”) In November
2017, the Regional Water Board requested additional
monitoring data in order to better understand the
city’s compliance with wet- and dry-weather discharge
limitations.
In September 2018, after San Francisco submitted
its LTCP Synthesis as part of the Bayside NPDES permitting process, the Regional Water Board found that
the document did not satisfy the minimum required elements of an LTCP under its permit or under the CSO
Control Policy. Specifically, the Regional Water Board
found that the LTCP Synthesis failed to: (1) “reflect
current circumstances,” because it did not incorporate
the findings of several of the city’s own sewer system
and CSO field studies and planning documents from
2013, 2014, and 2015; (2) “set forth any new operational requirements” “to optimize system operations so
as to maximize pollutant removal during wet weather
and minimize combined sewer discharges”; (3) “set
forth additional measures, to the extent technically
App. 25
and economically feasible, to maximize pollutant removal and minimize combined sewer discharges”; (4)
“develop or propose any metrics to evaluate the performance of its wet weather disinfection systems” for its
discharge points; and (5) “propose a plan for post-construction compliance monitoring of all wet weather
discharges” consistent with the CSO Control Policy.
San Francisco responded by acknowledging the
Regional Water Board’s concerns about its LTCP. It
recognized that the Regional Water Board was likely
to include new LTCP requirements in the soon-to-be
reissued Oceanside NPDES permit. San Francisco explained that, for that reason, it was “particularly interested” in reaching a mutual understanding with the
Regional Water Board about the “LTCP-related permit
terms” so as to “avoid[ ] future miscommunications.”
In October 2018, EPA and the Regional Water
Board shared another draft permit with San Francisco.
The narrative provisions were unchanged from the initial draft. San Francisco again requested that the Section V prohibition be limited to dry-weather discharges
from Discharge Point No. 001, and did not comment on
the general provision in Attachment G. However, the
October 2018 draft included a revised “LTCP Update”
provision, detailing the major tasks San Francisco
would need to perform to update its LTCP. This revised
draft also made the LTCP update nonconditional. In
response, San Francisco commented that the entire
LTCP Update provision “[r]equires further discussion.”
The draft permit was revised further, and San Francisco continued to suggest major changes to the draft
App. 26
regarding the proposed narrative prohibition in Section V and the LTCP Update provision. Representatives of San Francisco met with representatives of both
agencies nine times between October 2018 and September 2019.
2.
Public Notice and Comment
In April 2019, EPA and the Regional Water Board
published a draft Oceanside NPDES permit and solicited public comments. The published draft permit included the general narrative provisions of Section V,
Attachment G, and the LTCP update requirement, that
are largely consistent with their final form. The only
material difference in the final draft was that the timeline for San Francisco’s compliance with the LTCP update requirement was extended by up to two years.
On April 15, 2019, EPA issued a memorandum detailing its legal and factual bases for requiring San
Francisco to update its LTCP. EPA stated that a number of changes to San Francisco’s combined sewer system, including San Francisco’s own capital upgrades,
as well as its maintenance and operational problems,
necessitated an LTCP update. EPA included in its
memorandum a table listing cities, including New York
City, Washington, D.C., and Philadelphia, that had recently updated their respective LTCPs.
San Francisco submitted detailed comments about
the narrative water quality provisions in Section V and
Attachment G, as well as the requirement that the
LTCP be updated. San Francisco wrote that “[t]he
App. 27
generic, boilerplate narrative water-quality based permit terms are contrary to law and are unsupported by
the available facts.” It also wrote that it “strongly disagrees that an update to the City’s LTCP is needed or
appropriate.” Members of the public submitted comments to EPA and Regional Water Board. Many of the
comments expressed concern about CSO discharges
into private homes and businesses.
EPA and the Regional Water Board responded to
San Francisco’s comments, defending their inclusion of
narrative water quality standards in Section V and Attachment G as lawful under the CWA and federal regulations. In addition to asserting that such narrative
provisions were lawful under the CWA, the agencies
noted that EPA had included permit terms similar to
those of Section V in other NPDES permits for combined sewer systems in other municipalities and for
discharges into marine waters elsewhere in the United
States. The Regional Water Board stated that it had
included a provision identical to that in Attachment G
“in nearly all individual NPDES permits since at least
1993.”
EPA and the Regional Water Board also defended
the requirement of an LTCP update, citing legal support and factual findings. The agencies stated that San
Francisco is not exempt “from planning requirements
in perpetuity” under the CSO Control Policy. The agencies also explained their view that the current CSO
discharges to Ocean Beach (CSD-001, CSD-002, CSD003), China Beach (CSD-005), and Baker Beach (CSD006 and CSD-007) affected “sensitive areas” because
App. 28
they discharge to “primary contact recreation waters”
and “waters with threatened or endangered species.”
These discharges therefore threaten the “beneficial
uses” of the Pacific Ocean.
The agencies included the following four factual
findings in their response: (1) between 2011 and 2014,
100 million gallons of combined sewage and storm
water were discharged from the Oceanside CSDs;
(2) between 2008 and 2014, surveys indicated 20% of
recreational beach users were in contact with receiving
water after CSOs; (3) between July 2012 and June
2013, 56 of 468 samples collected at 10 shoreline monitoring locations exceeded water-quality criteria for at
least one bacteria indicator, and 39 of those elevated
samples (70%) were associated with a CSO event; and
(4) between 2004 and 2014, pollutant concentrations
(e.g., copper and zinc) in the CSOs exceeded water
quality objectives. “Given these facts,” the agencies responded, “it is appropriate to assess ways to reduce the
volume, frequency, and magnitude of the combined
sewer discharges to sensitive areas to better protect
beneficial uses.”
3.
Administrative Review of Final Permit
The Regional Water Board approved the final
Oceanside NPDES permit (No. R2-2019-0028) on
September 12, 2019. EPA approved the permit (No.
CA0037681) several months later, on December 10,
2019.
App. 29
After EPA approved the final permit in December
2019, San Francisco filed a petition for review of the
permit with EPA’s Environmental Appeals Board
(“EAB”). The EAB heard oral argument on October 8,
2020. San Francisco’s petition challenged the narrative prohibitions and the LTCP update requirement,
contending that they are inconsistent with the CWA,
its implementing regulations, and the facts in the record. San Francisco also challenged a provision regarding reporting of isolated CSOs, but it is not seeking
judicial review of that provision.
While San Francisco’s petition for review was
pending before the EAB, the EPA stayed the contested
provisions of the Oceanside permit. The EAB denied
San Francisco’s petition for review in its entirety on
December 1, 2020. City and County of San Francisco,
18 E.A.D. 322 (EAB 2020). EPA issued its Notice of
Final Permit Decision on December 22, 2020. The
Oceanside NPDES permit became fully effective and
enforceable on February 1, 2021.
San Francisco timely petitioned for review in this
court. We have jurisdiction to review EPA’s actions issuing or denying an NPDES permit under 33 U.S.C.
§ 1369(b)(1)(F).
II.
Standard of Review
The Administrative Procedure Act (“APA”) governs EPA’s issuance of NPDES permits. See Nat. Res.
Def. Council v. U.S. EPA, 279 F.3d 1180, 1186 (9th Cir.
2002). Under the APA, we must set aside an agency’s
App. 30
decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). This standard of review is “highly
deferential.” Kern Cnty. Farm Bureau v. Allen, 450 F.3d
1072, 1076 (9th Cir. 2006) (quoting Indep. Acceptance
Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000)).
“We may not substitute our judgment for that of the
agency.” Food & Water Watch v. U.S. EPA, 20 F.4th 506,
514 (9th Cir. 2021).
An agency’s reasonable interpretation of a statute
it administers is entitled to deference, Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44
(1984), as is an agency’s reasonable interpretation of
its genuinely ambiguous regulations, Kisor v. Wilkie,
139 S. Ct. 2400, 2415–16 (2019). Furthermore, courts
“must defer to a great extent to the expertise of the
EPA” when reviewing the agency’s scientific determinations in an area within the agency’s expertise. Nat.
Res. Def. Council, Inc. v. U.S. EPA, 863 F.2d 1420, 1430
(9th Cir. 1988) (citing Balt. Gas & Elec. Co. v. Nat. Res.
Def. Council, Inc., 462 U.S. 87, 103 (1983)).
III.
A.
Discussion
Narrative Prohibitions
San Francisco argues that two general narrative
prohibitions included in the Oceanside NPDES permit, Section V and Attachment G, are unlawful because (1) they “contravene EPA’s obligation under the
CWA to specify pollutant limits or operational requirements that will achieve compliance with WQS”; (2) by
App. 31
including these provisions in the permit, EPA failed to
“follow its own rules” for setting WQBELs; and (3) EPA
justified the need for the provisions “with only conclusory assertions.”
For the convenience of the reader, we again quote
the general narrative prohibitions. The first, Section V,
“Receiving Water Limitations,” provides:
Discharge shall not cause or contribute to a
violation of any applicable water quality
standard (with the exception set forth in [the
1979 Ocean Plan Exception]) for receiving waters adopted by the Regional Water Board,
State Water Resources Control Board (State
Water Board), or U.S. EPA as required by the
CWA and regulations adopted thereunder. If
more stringent water quality standards are
promulgated or approved pursuant to CWA
section 303, or amendments thereto, the Regional Water Board and U.S. EPA may revise
or modify this Order in accordance with the
more stringent standards.
The second, part of Attachment G, provides: “Neither
the treatment nor the discharge of pollutants shall create pollution, contamination, or nuisance as defined by
California Water Code section 13050.”1
1
Section 13050 defines “pollution” as “an alteration of the
quality of the waters of the state by waste to a degree which unreasonably affects either . . . waters for beneficial uses [or] [f ]acilities which serve beneficial uses.” Cal. Water Code § 13050(l).
“Contamination” is “an impairment of the quality of the waters of
the state by waste to a degree which creates a hazard to the public
health through poisoning or through the spread of disease.” Id.
App. 32
We address in turn San Francisco’s challenges to
the general narrative prohibitions.
1.
Consistency with the CWA
San Francisco argues that EPA’s inclusion of the
general narrative prohibitions is inconsistent with the
CWA because they are too vague to ensure the city’s
control measures will protect water quality. We disagree.
The plain text of the CWA and its implementing
regulations provide NPDES permitting agencies with
broad authority to impose limitations necessary to
ensure the discharger’s adherence to “any applicable
water quality standard.” 33 U.S.C. § 1311(b)(1)(C).
Consistent with this statutory directive, federal regulations require all NPDES permits to include “any requirements in addition to or more stringent than
promulgated effluent limitations guidelines or standards . . . necessary to . . . [a]chieve water quality
standards established under section 303 of the CWA,
including State narrative criteria for water quality.” 40
C.F.R. § 122.44(d). The CWA and its implementing
regulations thus require EPA to impose “any more
stringent limitation” necessary to satisfy “State narrative criteria for water quality,” including those beyond
§ 13050(k). And “nuisance” is defined as “anything which . . .
(1) [i]s injurious to health, or is indecent or offensive to the senses,
or an obstruction to the free use of property . . . (2) [a]ffects at the
same time an entire community or neighborhood, or any considerable number of persons . . . and (3) [o]ccurs during, or as a result
of, the treatment or disposal of wastes.” Id. § 13050(m).
App. 33
“effluent limitations.” Id.; 33 U.S.C. § 1311(b)(1)(C).
Moreover, the CSO Control Policy, which is legally
binding under 33 U.S.C. § 1342(q)(1), specifies that
Phase I NPDES permits must include a provision requiring municipalities to “[c]omply with applicable WQS,
no later than the date allowed under the State’s WQS,
expressed in the form of a narrative limitation.” 59 Fed.
Reg. at 18696 (emphasis added). These provisions do
not merely authorize a permitting agency’s inclusion
of narrative limitations on discharges that may violate
state WQS; they require such narrative limitations
when necessary to satisfy applicable WQS.
Supreme Court precedent, our prior cases, and
prior EAB decisions support the legality and confirm
the enforceability of general narrative prohibitions in
permits issued under the CWA. In PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511
U.S. 700, 715–16 (1994), the Supreme Court upheld
the state agency’s use of “open-ended” criteria using
“broad, narrative terms,” in addition to “numerical
criteria,” to certify a hydroelectric power plant’s compliance with the CWA. In Northwest Environmental
Advocates v. City of Portland, 56 F.3d 979, 989 (9th
Cir. 1995), a CSO case, we relied on Jefferson County
to uphold citizen-suit enforcement of “water quality
standards that are not translated into quantitative
limitations.” We recognized that citizen suits to enforce such “qualitative regulations” are “an important
enforcement tool,” especially in cases where effluent
limitations either do not apply at all, or merely establish “minimum requirements.” Id. More recently, in
App. 34
Natural Resources Defense Council, Inc. v. County of
Los Angeles, 725 F.3d 1194, 1199, 1205–07 (9th Cir.
2013), we enforced a narrative NPDES provision that
was nearly identical to that of Section V, “Receiving
Water Limitations,” in this case. Finally, in a closely
analogous recent EAB decision, In re City of Lowell, 18
E.A.D. 115, 176 (EAB 2020), the EAB held that EPA
did not err in issuing a general, narrative NPDES permit provision “alongside more specific ‘end of pipe’ pollutant-specific effluent limits.”
In the Oceanside NPDES permit at issue before
us, EPA included, along with numeric effluent limitations for dry- and wet-weather discharges, the two general narrative prohibitions quoted above, forbidding
discharges that “cause or contribute to a violation of
any applicable water quality standard,” or “create pollution, contamination, or nuisance.” The two narrative
provisions are consistent with the CWA and its implementing regulations. They simply require that San
Francisco’s discharges comply with applicable state
WQS. Indeed, EPA points out that the language of Section V’s prohibition is frequently employed by EPA in
other NPDES permits it issues for combined sewer systems, and that the Attachment G provision is included
in nearly all individual NPDES permits the Regional
Water Board has issued over the past three decades.
See Ohio Valley Env’t Coal. v. Fola Coal Co., 845 F.3d
133, 141–42 (4th Cir. 2017) (noting the frequency with
which EPA imposes general narrative water quality
standards in its NPDES permits and their consistent
enforcement).
App. 35
San Francisco nevertheless contends that the general narrative provisions violate the CWA, arguing
that the permit fails to provide the city with sufficiently clear directions as to how to ensure that its
discharges comply with WQS. In support of its contention, San Francisco cites Natural Resource Defense
Council v. U.S. EPA (“NRDC”), 808 F.3d 556 (2d Cir.
2015). In that case, a narrative WQBEL—that is, a
general narrative standard—mandated that ships
“control discharges as necessary to meet applicable
water quality standards in the receiving water body or
another water body impacted by [the] discharges.” Id.
at 568 (alteration in original) (quotation marks and
citations omitted). The Natural Resources Defense
Council (“NRDC”) challenged the narrative WQBEL
on the ground that it was insufficient to satisfy EPA’s
regulatory obligations under the CWA to ensure clean
water. The Second Circuit agreed with NRDC, holding
that the narrative provision, standing alone, was insufficient to satisfy EPA’s obligations under the CWA. The
court wrote, “By requiring shipowners to control discharges ‘as necessary to meet applicable water quality
standards’ without giving specific guidance on the discharge limits, EPA fails to fulfill its duty to ‘regulat[e]
in fact, not only in principle.’ ” Id. at 578 (alteration in
original) (citation omitted).
The case before us is the converse of NRDC. In
that case, petitioner NRDC sought more stringent enforcement than the EPA permit required. Here, by
contrast, San Francisco seeks less stringent enforcement. It seeks to turn NRDC on its head, relying on a
App. 36
decision requiring more effective enforcement to support an argument in favor of less effective enforcement.
Even if we were to regard NRDC as a relevant
precedent, we would conclude that the general narrative provision is consistent with the CWA. In contrast
to the permit in NRDC, which contained only the two
general narrative WQBEL provisions, see id. at 568, the
Oceanside NPDES permit in the case before us includes
several numeric and specific narrative WQBELs in addition to the challenged general narrative provisions.
For example, the wet-weather discharge provisions in
the Oceanside NPDES permit include specifications
for the percentage of combined wastewater and storm
water that Oceanside must capture during precipitation events; the specific flow rates that must be obtained prior to discharge from the different CSDs; and
the percent chance of rain that triggers maximization
of secondary treatment capacities. In other words, specific provisions in the Oceanside NPDES permit provide San Francisco with substantial guidance as to
how to satisfy the applicable WQS. The challenged general narrative provisions operate as a “backstop” to
those provisions, seeking to ensure that permitted discharges protect the water quality of the Pacific Ocean
if the specific technological and water-quality based effluent limitations fail to achieve compliance with the
CWA.
App. 37
2.
Conformity with Procedural Requirements
San Francisco also argues that the general narrative prohibitions are unlawful because EPA failed “to
follow its own rules for setting WQBELs.” Specifically,
San Francisco argues that EPA failed to follow the
procedures set forth in 40 C.F.R. § 122.44(d)(1)(i)–(vii)
when it formulated its general narrative provisions. In
deciding San Francisco’s appeal within the agency, the
EAB of EPA disagreed with San Francisco’s argument.
The EAB wrote:
Although 40 C.F.R. § 122.44(d) sets forth a
process for deriving pollutant-specific effluent
limits when the permitting authority determines that a particular pollutant has the reasonable potential to cause or contribute to an
exceedence of water quality standards, the
regulations do not require all permit conditions necessary to meet water quality standards to be expressed in terms of specific
pollutant-by-pollutant limitations.
We agree with the EAB.
Under § 122.44(d)(1), NPDES permit limitations
“must control all pollutants . . . which the Director determines are or may be discharged at a level which
will cause, have the reasonable potential to cause, or
contribute to an excursion above any State water
quality standard, including State narrative criteria for
water quality.” 40 C.F.R. § 122.44(d)(1)(i). San Francisco reads this regulation as requiring EPA to “conduct a reasonable potential analysis” prior to setting
App. 38
any limitations—including general narrative prohibitions. San Francisco is mistaken.
Section 122.44(d)(1) does not set forth an exclusive
process for imposing WQBELs. The regulations in this
section set forth minimum requirements for imposing
pollutant-specific WQBELs. It does not state that the
permitting authority cannot set general narrative limitations limits to achieve compliance with WQS. The
governing statutory section, 33 U.S.C. § 1311(b)(1)(C),
requires EPA to impose limitations “necessary” to
meet “water quality standards” without restricting the
agency to the sort of pollutant-by-pollutant regulation
contemplated in § 122.44(d)(1). We therefore conclude
that EPA did not abuse its discretion or act contrary to
§1311(b)(1)(C) in issuing its general narrative prohibitions.
3.
Factual Basis for Narrative Provisions
San Francisco further contends that EPA arbitrarily imposed the contested narrative prohibitions based
on “a pair of unsupported assertions,” namely (1) that
the limits are “necessary to ensure compliance with
applicable water quality standards,” and, relatedly,
(2) that the prohibitions “serve as backstops in the
event that the effluent limitations . . . prove to be inadequate.” San Francisco argues that the record demonstrates that the permit’s other effluent limitations “are
sufficient to protect receiving water quality,” and that
EPA’s decision to set WQBELs “necessarily included
App. 39
determinations that these Permit limits are sufficient
to protect WQS on their own.”
In response, EPA argues that the record supports
its determination “that compliance with end-of-pipe
numeric effluent limitations in the permit might not
ensure compliance with water quality standards, including protection of beneficial uses.” EPA contends
that because the CWA, under the binding CSO Control
Policy, requires that permit writers ensure municipalities’ “compliance with water quality standards and
protection of designated uses,” the numeric effluent
limitations for discharges may not be sufficient to ensure that wet-weather CSOs comply with the mandate
to protect beneficial uses such as recreation. See 59
Fed. Reg. at 18668 (emphasis added). In support, EPA
cites evidence in the record of impairments to beneficial uses resulting from Oceanside’s wet-weather CSO
discharges onto “popular recreational areas” including
Ocean Beach, China Beach, and Baker Beach.
Under the APA, an agency’s decision is arbitrary
and capricious if it “offered an explanation for its decision that runs counter to the evidence before the
agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An
agency must “examine the relevant data and articulate
a satisfactory explanation for its action including a ‘rational connection between the facts found and the
choice made.’ ” Id. at 43 (quoting Burlington Truck
Lines v. United States, 371 U.S. 156, 168 (1962)).
App. 40
Here, in its response to San Francisco’s comments
on the draft permit, EPA explained its decision to include the narrative provisions in Section V and Attachment G due to its concerns about San Francisco’s wetweather CSOs. Specifically, the agency noted its determination that “particular assumptions about the frequency of combined sewer discharges” made by the
State Water Board in its 1979 Ocean Plan Exception
order, which authorized Oceanside an average of eight
CSOs per year, “may not ensure protection of beneficial
uses today.” In response to another comment made by
San Francisco (regarding the LTCP Update provision),
EPA further cited factual evidence in support of its
concern that current limitations in the Oceanside
NPDES permit may not ensure the protection of
“beneficial uses”—namely that the combined sewer
discharges at Ocean Beach, China Beach, and Baker
Beach, while under the eight CSO per year limit, nevertheless may not adequately protect recreational use.
Because EPA’s general narrative provisions were
included as a “backstop” to ensure compliance with
WQS not addressed by specific effluent limitations
elsewhere in the permit—namely, protection of beneficial uses such as recreation—its decision is rationally
supported by the evidence in the record describing
negative impacts of CSOs on users of San Francisco’s
beaches.
App. 41
4.
Summary
We hold that EPA appropriately implemented the
CWA by including the two challenged general narrative prohibitions in addition to more specific effluent
limitations in the Oceanside NPDES permit; that EPA
was not required to follow the procedures set forth in
40 C.F.R. § 122.44(d)(1) for deriving pollutant-specific
effluent limitations in imposing the general narrative
provisions; and that EPA’s decision to impose the general narrative provisions was rationally connected to
evidence in the record indicating that a “backstop” to
the more specific provisions would be useful in protecting beneficial uses.
B.
LTCP Update
San Francisco also challenges the Oceanside
NPDES permit requirement that it update its LTCP
for CSO control. For the convenience of the reader, we
reiterate that the LTCP Update provision requires
San Francisco to undertake five major tasks, including:
(1) “characteriz[ing]” the updated combined sewer system; (2) describing its efforts to engage the public in its
decision-making processes; (3) reporting on its consideration of options to “eliminate, relocate, or reduce the
magnitude or frequency of discharges to sensitive areas,” including cost/benefit analyses; (4) proposing an
operational plan to minimize CSOs; and (5) submitting
a revised post-construction compliance monitoring
program plan.
App. 42
San Francisco argues that: (1) EPA did not make
a factual finding necessary to require San Francisco to
update its LTCP under the CSO Control Policy; and
(2) the requirement that San Francisco specifically
address “sensitive areas” in the update exceeds the
agency’s authority.
We address San Francisco’s arguments in turn.
1. Factual Finding Supporting
the LTCP Update Requirement
San Francisco argues that there is “only one circumstance when EPA can order an LTCP update: when
the plan is not attaining compliance with WQS.” San
Francisco argues that because EPA did not make a
finding of noncompliance, the LTCP Update requirement is unlawful.
It is undisputed that San Francisco was exempted
from creating an initial LTCP in 1997. At that time San
Francisco had “substantially completed” the construction of its CSO control program facilities. The parties
dispute whether San Francisco was exempted under
Section I.C.1 or Section I.C.2. We agree with San Francisco that the Section I.C.1 exemption was applied in
its first NPDES permit.
The Section I.C.1 exemption in the CSO Control
Policy provides:
Any permittee that, on the date of publication
of this final Policy, has completed or substantially completed construction of CSO control
App. 43
facilities that are designed to meet WQS and
protect designated uses, and where it has
been determined that WQS are being or will
be attained, is not covered by the initial planning and construction provisions in this Policy; however, the operational plan and postconstruction monitoring provisions continue
to apply. If, after monitoring, it is determined
that WQS are not being attained, the permittee
should be required to submit a revised CSO
control plan that, once implemented, will attain WQS.
59 Fed. Reg. at 18690 (emphasis added).
San Francisco argues that the final sentence of the
Section I.C.1 exemption, italicized above, is the only
basis on which a permitting agency may require an
LTCP update from a city that was exempt from initial
LTCP planning requirements. San Francisco cites in
support of its argument the interpretative canon of expressio unius est exclusio alterius. It also relies on another provision of the CSO Control Policy, Section
IV.B.2.g, the “reopener clause” provision, id. at 18696,
arguing that “[t]he Policy expects no further planning
or revisions to an approved LTCP, except ‘upon determination that the CSO controls fail to meet water
quality standards. . . .’ ” San Francisco also points to
another EPA CSO Guidance manual from 1995, which
specifies that “[i]f post-construction monitoring indicates that existing WQS are not being met, the data
generated can be used to identify the additional CSO
controls necessary to achieve WQS.” U.S. Envt’l Prot.
App. 44
Agency, No. 832-B-95-002, Combined Sewer Overflows:
Guidance for Long-Term Control Plan 4-16 (1995).
EPA argues that a prior determination that WQS
are not being met is not the only basis on which it may
require an LTCP update. EPA cites provisions in the
CSO Control Policy that grant EPA authority to reassess, modify, and require revisions to NPDES permits,
even for those programs exempted from initial planning requirements, in support of its interpretation.
Reading the CSO Control Policy as a whole, especially Section I.C, we agree with EPA. Most important,
Section I.C.3 of the CSO Control Policy states: “In the
case of any ongoing or substantially completed CSO
control effort, the NPDES permit or other enforceable
mechanism, as appropriate, should be revised to include all appropriate permit requirements consistent
with section IV.B of this Policy.” 59 Fed. Reg. at 18690
(emphases added). We note that the Control Policy refers to Section IV.B without limitation, not just Section
IV.B.2.g cited by San Francisco. Section IV.B sets forth
all the NPDES permit requirements for CSOs. Id. at
18695–96. We read Section I.C.3 to provide NPDES
permitting authorities with broad discretion to impose
revised permit requirements, as set forth in Section
IV.B, on municipalities initially exempted from planning and construction requirements under either Section I.C.1 (exempting municipalities with “completed
or substantially completed construction of CSO control
facilities”) or Section I.C.2 (exempting municipalities
with a “substantially developed” or ongoing “implement[ation]” of a CSO control program). Id. at 18690.
App. 45
Standard Phase II permit provisions set forth in
the CSO Control Policy under Section IV.B further support EPA’s interpretation of Section I.C. The Policy
mandates in Section IV.B.2.e that every Phase II permit—a permit given only to municipalities that have
completed their LTCP and construction of their controls—include “[a] requirement to reassess overflows
to sensitive areas in those cases where elimination or
relocation of the overflows is not physically possible
and economically achievable.” Id. at 18696. All Phase
II permittees are to conduct a reassessment of their
CSOs to sensitive areas “based on consideration of new
or improved techniques to eliminate or relocate overflows or changed circumstances that influence economic achievability.” Id. In addition, as San Francisco
acknowledges, the Policy mandates in Section IV.B.2.g
that every Phase II NPDES permit include a “reopener
clause authorizing the NPDES authority to reopen and
modify the permit upon determination that the CSO
controls fail to meet WQS or protect designated uses.”
Id. (emphasis added). When an NPDES authority decides to modify a permit because “the CSO controls
fail[ed] to . . . protect designated uses,” it can do so
without necessarily having found a failure to attain
WQS. These standard Phase II provisions demonstrate
that even post-construction, the CSO Control Policy
authorizes permitting agencies to order municipalities
to periodically reassess their CSO control program for
potential improvement with respect to designated
uses, irrespective of any failure to meet WQS.
App. 46
Our dissenting colleague believes that Section
IV.B.2.g’s reference to “protecting ‘designated uses’ . . .
adds nothing to the concept of achieving water quality
standards.” Dissenting Op. at 64. But the CSO Control
Policy does not reference the “protect[ion] of designated uses” only in Section IV.B.2.g. The “protect[ion]
of designated uses” language appears close to thirty
times in the CSO Control Policy. Each time, the CSO
Control Policy describes “protection of designated
uses” as distinct from achieving water quality standards. For example, the Policy instructs permittees to
“develop long-term CSO control plans which evaluate
alternatives for attaining compliance with the CWA,
including compliance with water quality standards
and protection of designated uses.” 59 Fed. Reg. at
18688 (emphasis added). The Policy further advises
that “[s]chedules for implementation of the long-term
CSO control plan may be phased based on the relative
importance of adverse impacts upon water quality
standards and designated uses. . . .” Id. (emphasis
added). The CSO Control Policy thus treats the “protection of designated uses” as an independently significant obligation, and not simply a byproduct of
attaining the relevant water quality standard.
We therefore hold that EPA’s ability to require San
Francisco to update its LTCP is not conditioned on a
finding that WQS were not being met. However, EPA’s
requirement that San Francisco update its LTCP must
be rationally supported by record evidence. See Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). We hold that there is
App. 47
adequate evidentiary support in the record. As we
noted above, San Francisco’s current LTCP (a collection of twenty-one relevant documents) has not been
updated since 1991, more than thirty years ago, despite San Francisco’s extensive investment in operational assessments and capital improvements through
its Sewer System Improvement Plan since then. The
fact that the LTCP is so outdated is enough, by itself,
to support EPA’s conclusion that an updated LTCP is
needed. Moreover, San Francisco’s current LTCP was
found by the Regional Water Board to be inadequate to
ensure compliance with the CWA. Evidence of these
deficiencies in San Francisco’s current LTCP supports
EPA’s requirement that San Francisco accurately
characterize its contemporary sewer systems and evaluate control alternatives. In requiring an updated
LTCP, EPA is ensuring that San Francisco satisfies applicable state WQS, most notably the 1979 Ocean Plan
Exception, which was conditioned on San Francisco’s
efforts to protect water quality “to the greatest extent
practical,” taking into consideration “changes in location, intensity or importance of affected beneficial
uses or demonstrated unacceptable adverse impacts
[of the CSOs].”
2.
Requirement to Consider Sensitive Areas
San Francisco also contends that LTCP Update
Task 3, one of its five assigned LTCP Update tasks, is
“uniquely inconsistent with San Francisco’s exemption
under Section I.C.1 of the Policy and EPA’s authority
more generally.” LTCP Update Task 3, “Consideration
App. 48
of Sensitive Areas,” requires that San Francisco
reevaluate alternatives for the six of its seven CSD
outfalls that are located adjacent to popular recreational beaches. Whereas the Section I.C.2 exemption
explicitly provides that programs falling under this exemption “should be reviewed and modified to be consistent with the sensitive area, financial capability,
and post-construction monitoring provisions of this
Policy,” the Section I.C.1 exemption does not contain
this provision for routine sensitive area reassessment.
59 Fed. Reg. at 18690. San Francisco argues that because it was granted an exemption under Section I.C.1
rather than I.C.2, “EPA cannot require the city to undertake any sensitive areas analysis.” EPA argues that
the CSO Control Policy provides it with authority to
require San Francisco to reassess its CSOs to sensitive
areas on an ongoing basis even assuming it was
granted an exception from initial LTCP planning and
construction under Section I.C.1 rather than Section
I.C.2.
Here, too, we agree with EPA. As discussed above,
Section I.C.3 provides NPDES permitting authorities
with broad discretion to impose revised permit requirements on municipalities initially exempted from
planning and construction requirements under either
Section I.C.1 or Section I.C.2 of the Policy. Id. at 18690.
This discretion includes the ability to impose a requirement that municipalities reassess CSOs to sensitive
areas. See id. at 18696 (Section IV.B.2.e). The Policy
mandates that all Phase II permits include a provision requiring a permittee to “reassess overflows to
App. 49
sensitive areas in those cases where elimination or
relocation of the overflows is not physically possible
and economically achievable.” Id. This reassessment
requirement aligns squarely with the CSO Control Policy’s objective that “a permittee’s long-term CSO control plan . . . give the highest priority to controlling
overflows to sensitive areas.” Id. at 18692.
San Francisco contends that even if it were bound
to reassess discharges into sensitive areas, the Task 3
requirement stretches beyond EPA’s authority to require it to assess alternatives intended to “eliminate or
relocate” CSOs. Id. In the view of San Francisco, EPA
cannot instead require it to assess the alternative of
“reducing the magnitude and frequency” of CSOs.
However, alternative controls that would aid in “reducing the magnitude and frequency” of CSOs are likely
to be less costly than alternatives that would entail relocating or eliminating CSOs altogether. We decline to
overturn EPA’s interpretation of the CSO Control Policy, which allows it to require a less expensive and potentially more effective measure.
3.
Summary
In sum, the CSO Control Policy provides EPA with
authority to require San Francisco to update its LTCP
and reevaluate alternatives for its CSO discharges to
sensitive areas. EPA’s decision to require an updated
LTCP is rationally supported by evidence in the record, and we hold that EPA did not act unlawfully in
App. 50
including the provision in the 2019 Oceanside NPDES
permit.
Conclusion
We hold that EPA had authority under the CWA
to include in the Oceanside NPDES permit two narrative prohibitions against violating applicable WQS;
that EPA had authority to require San Francisco to update its LTCP for CSOs; and that EPA’s decisions were
rationally connected to evidence in the record. We
therefore deny San Francisco’s petition for review.
Petition DENIED.
COLLINS, Circuit Judge, dissenting:
The City and County of San Francisco (“San Francisco”) challenges three specific conditions that the Environmental Protection Agency (“EPA”) included in the
permit that the EPA issued to San Francisco, under the
“National Pollutant Discharge Elimination System”
(“NPDES”), in connection with the operation of a combined wastewater and stormwater collection and treatment system. In my view, all three conditions are
invalid, and I would therefore grant San Francisco’s
petition for review, vacate the challenged provisions,
and remand the matter to the agency. Because the majority instead upholds each condition, I respectfully
dissent.
App. 51
I
To place the issues raised by the parties in their
proper context, it is helpful first to provide some appropriate background concerning the Clean Water Act, the
special rules governing combined sewer systems, and
the permit at issue here.
A
The current federal water pollution control system
dates back to the enactment of the Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92500, 86 Stat. 816 (1972). That Act, which itself is often
colloquially called the Clean Water Act, completely rewrote the then-existing Federal Water Pollution Control Act (“FWPCA”). See City of Milwaukee v. Illinois,
451 U.S. 304, 317 (1981). The revised FWPCA—which
was officially given the alternative title of the “Clean
Water Act” in 1977, see Pub. L. No. 95-217, § 2, 91 Stat.
1566 (1977)—remains, as amended, the principal federal statute governing the regulation and control of
water pollution, and it has been classified to chapter
26 of the unenacted title 33 of the United States Code.
See 33 U.S.C. § 1251 et seq.
Prior to its amendment in 1972, the FWPCA “employed ambient water quality standards specifying the
acceptable levels of pollution in a State’s interstate
navigable waters as the primary mechanism in its
program for the control of water pollution.” EPA v.
California ex rel. State Water Res. Control Bd. (EPA v.
California), 426 U.S. 200, 202 (1976). These overall
App. 52
standards for particular bodies of water were intended
“to serve both to guide performance by polluters and to
trigger legal action to abate pollution.” Id. But the
system “proved ineffective” in practice. Id. Because
the focus was on the ultimate aggregate level of pollution in the body of water as a whole, rather than on
“the preventable causes of water pollution” into that
body of water, enforcement of the standards required
“work[ing] backward from an overpolluted body of water to determine which point sources are responsible
and which must be abated.” Id. at 202, 204 (emphasis
added). That feature, combined with “the awkwardly
shared federal and state responsibility for promulgating such standards” and the “cumbrous enforcement
procedures,” made it “very difficult to develop and enforce standards to govern the conduct of individual polluters.” Id. at 202–03.
As the Supreme Court has explained, the Clean
Water Act (“CWA”) takes an entirely different approach that includes two major changes. First, rather
than measuring an individual polluter’s performance
“against limitations derived from water quality standards to which it and other polluters must collectively
conform,” the CWA directly regulates discharges from
specific point sources by setting “effluent limitations”
—i.e., “restrictions . . . on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources.” Id.
at 204–05 (emphasis added). Second, to implement
this shift to a direct regulation of discharges, the
CWA “establish[ed] the National Pollutant Discharge
App. 53
Elimination System (NPDES) as a means of achieving
and enforcing the effluent limitations.” Id. at 205 (footnote omitted). “Under the NPDES, it is unlawful for
any person to discharge a pollutant without obtaining
a permit and complying with its terms,” which include
the applicable effluent limitations for the relevant
point sources. Id.; see also 33 U.S.C. § 1311(a).
Thus, under the revised regulatory scheme established by the CWA, the regulators issuing individual
NPDES permits are ultimately required to translate
the overall water quality standards for a given body of
water—which are typically set by States—into “obligations (including a timetable for compliance) of the individual discharger,” as expressed in that discharger’s
NPDES permit. EPA v. California, 426 U.S. at 205. The
effluent limitations contained in an NPDES permit include, in the first instance, “technology-based limitations on individual discharges” from point sources.
PUD No. 1 of Jefferson County v. Washington Dep’t of
Ecology, 511 U.S. 700, 704 (1994); see also Our Children’s Earth Foundation v. EPA, 527 F.3d 842, 848 (9th
Cir. 2008) (explaining that such “technology-based” effluent limitations are “determined according to the
best available or practicable technology” for reducing
pollution at the source); Natural Res. Def. Council, Inc.
v. EPA (NRDC I), 822 F.2d 104, 110 (D.C. Cir. 1987)
(stating that “technology-based effluent limitations, as
their name suggests, derive from standards formulated with reference to pollution control technology”).
However, if such technology-based effluent limitations “are insufficient to attain or maintain water
App. 54
quality standards, the CWA requires NPDES permits
to include additional water quality-based effluent limits.” Natural Res. Def. Council, Inc. v. EPA (NRDC II),
808 F.3d 556, 564 (2d Cir. 2015) (emphasis added).
Such water-quality-based effluent limitations are set
“based on the amounts and kinds of pollutants in the
water in which the point source discharges,” NRDC I,
822 F.2d at 110, and they are set “without regard to
cost or technological availability,” NRDC II, 808 F.3d at
565. In addition to such numerically-based effluent
limitations, an NPDES permit may also contain “narrative” conditions that specify, in descriptive terms,
how particular activities are to be conducted, so as to
achieve compliance with the relevant water quality
standards. PUD No. 1, 511 U.S. at 716.
The various specific limitations contained in the
NPDES permit are then subject to “direct administrative and judicial enforcement.” EPA v. California, 426
U.S. at 205. But, “[w]ith few exceptions,” if an NPDES
permit holder complies with the conditions of its permit, that discharger will be “deemed to be in compliance” with the principal provisions of the CWA. Id.; see
also 33 U.S.C. § 1342(k). And that remains true even if
the discharges released in compliance with the discharger’s NPDES permit “would reach waters already
in violation of existing water quality standards.” Arkansas v. Oklahoma, 503 U.S. 91, 107 (1992).
App. 55
B
Operators of a combined wastewater and stormwater collection and treatment system—such as the
one operated by San Francisco here—are subject to
specialized rules that govern both the NPDES permitting process for such systems and other aspects of their
operation. A key objective of these special rules is to
address the fact that such a “combined sewer system”
(“CSS”), which “conveys sanitary wastewaters . . . and
storm water through a single-pipe system” to a watertreatment plant, may on occasion experience a “combined sewer overflow” (“CSO”), i.e., a discharge “at a
point prior” to treatment at the water-treatment plant.
See Combined Sewer Overflow (CSO) Control Policy,
59 Fed. Reg. 18687, 18689 (Apr. 19, 1994) (emphasis
added). Such an overflow can occur when, for example,
heavy rains result in the system being overwhelmed by
an increased flow of water that exceeds the capacity of
the treatment plant. To help combat the dangers such
CSOs pose, the EPA promulgated a special “CSO Control Policy” in 1994. Id. at 18687-97. Pursuant to a 2000
amendment to the CWA, this CSO Control Policy document effectively has the force of a statute. See 33
U.S.C. § 1342(q)(1) (requiring that “[e]ach permit, order, or decree issued” under the CWA, after December
21, 2000, “for a discharge from a municipal combined
storm and sanitary sewer shall conform to the Combined Sewer Overflow Control Policy” issued in 1994).
The CSO Control Policy relies on two primary
mechanisms for achieving its overall objectives of controlling and mitigating CSO events. First, under § II.C
App. 56
of the Policy, each permittee operating a system that
experiences CSOs must “develop[ ] and implement[ ]” a
“long-term CSO control plan[ ] that will ultimately
result in compliance with the requirements of the
CWA.” 59 Fed. Reg. at 18691. A full-blown long-term
control plan (“LTCP”) would include, inter alia, (1) preliminary work, including public consultation, to identify and evaluate appropriate alternatives for building
the infrastructure to achieve the objectives of the CSO
Control Policy in a cost-effective manner; (2) an implementation schedule for the selected alternatives, including a “construction and financing schedule”; and
(3) “a post-construction water quality monitoring program.” Id. at 18691-94.
Second, the Policy relies on the NPDES permitting
process to support both the LTCP process and the overall objectives of the Policy. Thus, § IV.B.1 of the Policy
provides that, in the “Phase I” stage in which a permittee is developing an LTCP, the NPDES permit must
contain specific conditions to ensure that the permittee, inter alia, (1) accomplishes the necessary tasks for
developing and submitting an LTCP; and (2) immediately implements certain minimum controls. Id. at 18696.
Section IV.B.2 of the Policy states that, at “Phase II,”
the permit must contain various enumerated conditions, including: (1) appropriate “requirements for
implementation of the long-term CSO control plan”;
(2) requirements for appropriate monitoring; (3) a
“requirement to reassess overflows to sensitive areas” under certain circumstances; and (4) a “reopener
clause authorizing the NPDES authority to reopen and
App. 57
modify the permit upon determination that the CSO
controls fail to meet WQS [i.e., water quality standards] or protect designated uses.” Id. Section IV.B.2.g
specifically provides that, in the event of “such determination,” the “permittee should be required to develop, submit, and implement, as soon as practicable, a
revised CSO control plan which contains additional
controls to meet WQS and designated uses.” Id.
C
San Francisco currently “provides wastewater
treatment [services] for western San Francisco and a
small portion of [nearby] Daly City”—a service area
with a population totaling approximately 250,000 people. It does so by way of its Oceanside Water Pollution
Control Plant (the “Oceanside Plant”) and a combined
sewer system that collects wastewater and stormwater
and transports it to that plant. (I will refer to the
Oceanside Plant and the combined sewer system, collectively, as the “Oceanside System”). The Oceanside
System’s combined sewer system consists of “approximately 250 miles of pipe, one major pump station . . .
six minor pump stations . . . and three large transport/
storage structures.” Since 1997, San Francisco has discharged treated wastewater from its Oceanside System into the Pacific Ocean pursuant to the terms and
conditions of successive NPDES permits that have
been jointly issued by the EPA and the California Regional Water Quality Control Board for the San Francisco Bay Region (the “Regional Board”). In the 25
years prior to receiving its 1997 NPDES Permit, San
App. 58
Francisco spent approximately $1.4 billion dollars
fully implementing an integrated plan for wastewater
management (the “Master Plan”) that it had begun
developing in 1971—the latter being a time when
San Francisco’s then-existing sewage and wastewater
treatment systems were experiencing an average of 82
CSOs per year. The Master Plan was designed to reduce the average frequency of overflow events by approximately 90%, to just eight per year.
Congress passed the CWA one year after San
Francisco developed its 1971 Master Plan. In addition
to the NPDES permitting regime described above, the
CWA also established a construction grant program in
which the EPA would provide States and municipalities with federal funding to cover significant portions
of the construction costs for projects that “demonstrate[d] a new or improved method of preventing, reducing, and eliminating the discharge into any waters
of pollutants from sewers which carry storm water or
both storm water and pollutants.” 33 U.S.C. § 1255(a).
To be eligible for those funds, an applicant had to submit a “Facility Plan” to the EPA and to the State showing that its proposed project “complied with the
National Environmental Policy Act.” Seeking to take
advantage of this new grant program, San Francisco
spent the next two years revising its Master Plan. As
part of that process, an “Environmental Impact Report
. . . and Environmental Impact Statement” were “prepared by the EPA and the San Francisco Department
of Planning” and issued in 1974.
App. 59
The following year, the Regional Board adopted
“the first comprehensive Basin Plan for the San Francisco Bay Region” and began issuing “a series of permits
and orders that included enforceable schedules for implementing [San Francisco]’s selected wet weather
controls,” which included “milestones for planning, design, and construction.” In particular, in March 1976,
the Regional Board ordered San Francisco to construct
facilities to “reduce the frequency of discharge” from
“an average of 114 overflow events per year to an average of one overflow event per year” and to submit a
“study to better define the costs and water quality benefits of facilities designed to achieve various overflow
frequencies.” San Francisco completed the required
study and submitted the results to the Regional Board
on December 15, 1978, accompanied by a request that
the Regional Board increase its maximum number of
allowable overflow events from one per year to eight
per year. That change required an exemption from the
applicable “Water Quality Control Plan for Ocean Waters of California,” and the Regional Board granted the
requested exemption on March 23, 1979, and the EPA
approved it a few months later. This exemption order,
together with the revised Master Plan San Francisco
adopted in 1980, “became the basis for all subsequent
planning, design, and construction of ” the Oceanside
System.
With these provisions in place, San Francisco began constructing the Oceanside System in the early
1980s and had fully implemented the revised Master
Plan by 1997, at a total cost of approximately $1.4
App. 60
billion in 1997 dollars. That same year, the EPA and
the Regional Board jointly issued an NPDES Permit
authorizing San Francisco to discharge pollutants
from the Oceanside System into the Pacific Ocean from
the System’s eight designated discharge points, provided that those discharges complied with the terms
and conditions set forth in the permit. In that permit,
the Regional Board and the EPA expressly found that,
by implementing the Master Plan it had originally began developing in the 1970s, San Francisco had “substantially completed the wasterwater projects needed
to control combined sewer overflows and to reduce water quality impact from the [Oceanside System]” and
was thus “exempt from the planning and construction
requirements” of the CSO Control Policy under § I.C.1
of that Policy. The EPA and the Regional Board also
concluded that San Francisco had “otherwise demonstrated compliance with section I.C.1 of the CSO Control Policy” and therefore was “not required to complete
a (new) CSO long-term plan.” The administrative record elsewhere specifically reflects what is implicit in
the 1997 permit’s findings, which is that San Francisco’s LTCP “is not a single document, as is the case
with most combined sewer systems,” but rather “is a
collection of documents” that were “developed over the
course of two decades, dating from 1971.”
The Regional Board and the EPA subsequently
renewed San Francisco’s NPDES Permit for the Oceanside System in 2003 and 2009. In both permits it reiterated that San Francisco’s program was consistent
App. 61
with the CSO Control Policy and that San Francisco
was not required to prepare a revised LTCP.
The most recent 2019 renewal of the NDPES
permit for the Oceanside System included three conditions that, after exhausting its administrative remedies, San Francisco timely challenges here.
II
Two of the conditions challenged by San Francisco
consist of narrative limitations that are based solely on
whether the receiving waters are meeting the applicable water quality standards. First, § V of the permit
prohibits the City from making any discharge that
(1) “contribute[s]” to a violation of “any applicable water quality standard . . . for receiving waters” (emphasis added). Second, Provision I.I.1 of Attachment G to
the permit similarly states that San Francisco may not
make a discharge that “create[s] pollution, contamination, or nuisance as defined by California Water Code
section 13050.” Because § 13050 defines the terms “pollution,” “contamination,” and “nuisance” in a manner
that focuses on the overall condition of the receiving
waters, San Francisco’s compliance with this condition
likewise turns on that overall condition.2 In my view,
2
California Water Code § 13050(k) defines “[c]ontamination”
as “an impairment of the quality of the waters of the state by
waste to a degree which creates a hazard to the public health
through poisoning or through the spread of disease,” and the term
“includes any equivalent effect resulting from the disposal of
waste, whether or not waters of the state are affected.” Similarly,
“[p]ollution” is defined as “an alteration of the quality of the
App. 62
the EPA’s imposition of these narrative limitations
was “arbitrary and capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). I would therefore set aside these two conditions.
A
These narrative limitations are inconsistent with
the text of the CWA. Section 301(a)(1) requires the
EPA to set specified types of “effluent limitations,” as
well as “any more stringent limitation, including those
[that are] necessary to meet water quality standards”
established under applicable state or federal law or
that are “required to implement any applicable water
quality standard established pursuant to [the CWA].”
33 U.S.C. § 1311(b)(1)(C) (emphasis added). On its face,
the statute draws an explicit distinction between the
“limitations” that the agency must devise and impose
on a particular permittee’s discharges and the overall
“water quality standards” that govern the applicable
waters into which those discharges will be made. The
waters of the state by waste to a degree which unreasonably affects either": (1) “[t]he waters for beneficial uses,” or (2) “[f ]acilities which serve th[o]se beneficial uses.” Id. § 13050(l)(1)(A)–(B).
And “ ‘[n]uisance’ means anything which meets all of the following
requirements”: (1) it “[i]s injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property,
so as to interfere with the comfortable enjoyment of life or property”; (2) it “[a]ffects at the same time an entire community or
neighborhood, or any considerable number of persons, although
the extent of the annoyance or damage inflicted upon individuals
may be unequal”; and (3) it “[o]ccurs during, or as a result of, the
treatment or disposal of wastes.” Id. § 13050(m)(1)–(3).
App. 63
narrative conditions challenged here effectively ignore
this critical distinction by making the ultimate, overall
“water quality standards” themselves the applicable
“limitation” for an individual discharger.
Moreover, the agency’s erasure of this crucial distinction is fundamentally inconsistent with the CWA’s
regulatory approach. As explained earlier, see supra
section I(A), the CWA largely rejected the prior ex post
system of “work[ing] backward from an overpolluted
body of water” in favor of an ex ante system of fashioning, using the agency’s expertise, the “direct restrictions on discharges” that are needed to achieve the
overall water quality standards for the relevant waters. EPA v. California, 426 U.S. at 204–05; see also City
of Milwaukee v. Illinois, 451 U.S. at 320–21. Indeed, the
agency generally must rely, in the first instance, on
technology-based effluent limitations that regulate discharges at the point source. See Our Children’s Earth
Foundation, 527 F.3d at 848. If those are inadequate,
then the agency can work backward from the applicable water quality standards to fashion, for the relevant
dischargers, “any more stringent limitations” on discharges that are necessary to meet those standards.
33 U.S.C. § 1311(b)(1)(C); see also EPA v. California,
426 U.S. at 205 n.12 (noting that, if technology-based
effluent limitations are inadequate, “[w]ater quality
standards are retained as a supplementary basis for
effluent limitations”); NRDC II, 808 F.3d at 577–78
(similar). Here, by failing to articulate any “specific
guidance” as to the “practices” or “procedures” that
dischargers should undertake, NRDC II, 808 F.3d at
App. 64
578–79, and by instead directing the permittee to figure out how to ensure compliance with the water
quality standards, the agency has effectively required
the permittee to ensure that its discharges—taken together with any other sources of pollution into the
applicable waters—do not result in a breach of the
applicable water quality standards. In doing so, the
agency has fundamentally abdicated the regulatory
task assigned to it under the CWA. See id. (holding
that a similar narrative condition reflected a failure of
the agency “to fulfill its duty to regulate in fact, not
only in principle”).
As the Second Circuit explained in invalidating
a similar condition, this analysis is further confirmed by § 402 of the CWA, which governs the issuance of NPDES permits. See NRDC II, 808 F.3d at
579-80. That section states that the conditions fashioned by the agency for a given permit must “assure
compliance” with the relevant requirements of the
CWA, including the achievement of the applicable water quality standards. See 33 U.S.C. § 1342(a)(2). The
agency can “hardly” be said to have satisfied that obligation when it issues a generic instruction not to let
the water quality standards be violated, because such
a mere recitation of the ultimate objective “in fact
adds nothing” in terms of specifying meaningful permit conditions that will “assure” ex ante compliance
with the water quality standards. NRDC II, 808 F.3d
at 578. Even if crafting such conditions is “difficult,”
the EPA “cannot simply give up and refuse to issue
more specific guidelines.” Id. at 578. Including the sort
App. 65
of generic narrative condition employed here therefore
“violate[s]” § 402’s “requirement that NPDES permits
ensure compliance with the CWA.” Id. at 580.
I hasten to add that there is one limited sense in
which this generalized narrative condition does provide specific guidance, but it is the proverbial exception that proves the rule. In the case of a body of water
that, for whatever reason (e.g., pollution from another
source), happens to contain pollution levels that exceed
the applicable water quality standards, the inclusion
of such a narrative condition would automatically
make unlawful any further discharges of the same pollutant into those waters. That is, because any such further discharges into a body of water that is already out
of compliance would necessarily “contribute” to a violation of “any applicable water quality standard . . . for
receiving waters,” any such discharges would violate
that generic permit condition and would therefore be
unlawful under the CWA. That would automatically
trigger the “crushing consequences” that the CWA
provides “even for inadvertent violations.” Sackett v.
EPA, 143 S. Ct. 1322, 1330 (2023). Even negligent discharges in violation of a permit condition can lead to
“severe criminal penalties including imprisonment,” as
well as substantial civil penalties that “can be nearly
as crushing as their criminal counterparts.” Id. (citing
33 U.S.C. § 1319(c)). Routine inclusion of such a narrative condition in permits would thus automatically require, in the event of excessive pollution from another
source, the immediate cessation of discharges involving the same pollutant from all other sources, without
App. 66
regard to the importance of those sources’ operations
or, indeed, any other consideration. But as the Supreme
Court unanimously held in Arkansas v. Oklahoma, the
CWA has never been construed as “mandat[ing] a complete ban on discharges into a waterway that is [already] in violation of [water quality] standards.” 503
U.S. at 108. As the Court noted, such an automatic ban
on any other discharges might impede other important
and competing objectives of the CWA. Id. Application
of regulatory judgment, using the “broad authority”
vested in the agency to address such a situation, is
more consistent with achieving the overall objectives
of the CWA than an automatic prohibition on any and
all discharges involving waters that, for whatever reason, may happen to be out of compliance with water
quality standards. Id.3
Accordingly, I would vacate these two narrative
conditions, which are “arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A).
3
The majority is therefore quite wrong when it goes further
and says that, not only is such a narrative condition consistent
with the CWA, it is “require[d]” by that statute. See Opin. at 29.
That holding—viz., that the CWA mandates such a prohibition on
further discharges into a body of water that is not compliant with
applicable water quality standards—is flatly contrary to Arkansas v. Oklahoma. The majority is likewise wrong in contending
that the transitional provisions of the CSO Control Policy that
govern “Phase I” permits required the inclusion of such a narrative condition in this case. See Opin. at 29. Even assuming arguendo that the majority’s construction of the relevant Phase I
provision were correct, it is irrelevant to the Phase II permit at
issue here.
App. 67
B
The various reasons offered by the majority for its
contrary conclusion all lack merit.
First, the majority notes that the Supreme Court
in PUD No. 1 upheld the inclusion of NPDES permit
limitations that use “broad, narrative terms.” See
Opin. at 30 (quoting PUD No. 1, 511 U.S. at 716). But
that general proposition does not address the further
question of whether this particular narrative limitation is consistent with the CWA. The Court’s endorsement of broadly framed narrative conditions simply
does not support the agency’s wholesale erasure of the
distinction between the “limitations” to be crafted by
the agency and the ultimate water quality standards
those limitations are supposed to help to achieve. Indeed, the contrast between the narrative conditions in
this case and those in PUD No. 1 only underscores this
critical difference: the specific limitation that the
Court upheld in PUD No. 1 was not a vague instruction
to ensure that water quality standards were ultimately met, but a specific instruction to a proposed hydroelectric project to maintain, in the river from which
the water was taken, “a minimum stream flow requirement of between 100 and 200 [cubic feet per second]
depending on the season.” 511 U.S. at 709.
Second, the majority contends that this court’s
prior decisions have already upheld the validity of including such a narrative condition in an NPDES permit. See Opin. at 30. That is wrong. In the two cases
cited by the majority, the only question that was
App. 68
presented and resolved was whether, in a situation in
which such a condition has already been included in a
permit that has not been challenged by the permittee,
that condition is enforceable by private parties by way
of an action under § 505 of the CWA. See Northwest
Env’t Advocs. v. City of Portland, 56 F.3d 979, 990
(9th Cir. 1995) (holding that CWA § 505(a) “confer[s]
jurisdiction for citizen suits to enforce water quality
standards when they are conditions of a CWA permit”
(emphasis added)); see also Natural Res. Def. Council,
Inc. v. County of Los Angeles, 725 F.3d 1194, 1205 (9th
Cir. 2013) (“Our sole task at this point of the case is to
determine what Plaintiffs are required to show in order to establish liability under the terms of this particular NPDES permit.”); see also 33 U.S.C. § 1365(a)
(authorizing private civil actions against persons who
are in violation of a “limitation” imposed under the
CWA). Neither decision addressed the antecedent question of whether such a condition, when timely challenged by the permittee, is properly included in such a
permit in the first place. As the EPA conceded at oral
argument, the only circuit court to have addressed that
question is the Second Circuit, and it held that the condition was invalid for the same reasons that I have
already explained. See NRDC II v. EPA, 808 F.3d at
577–80; see supra section II(A).4
4
The majority implausibly attempts to distinguish NRDC II
on the ground that in that case the narrative condition was challenged by a third party rather than by the permittee. See Opin. at
32. But regardless of which party is seeking greater regulatory
App. 69
***
For all of these reasons, I would grant San Francisco’s petition, vacate the two challenged narrative
conditions, and remand to the agency.5
III
The third permit condition challenged here requires
San Francisco to “update its LTCP by implementing”
five enumerated tasks that the permit asserts are
“based on” the CSO Control Policy. Among other
things, San Francisco is required to undertake a
“Consideration of Sensitive Areas” and to develop “control alternatives,” including infrastructure changes,
for “eliminat[ing], relocat[ing], or reduc[ing] the magnitude or frequency of discharges to sensitive areas.” I
agree with San Francisco that this condition is contrary to law and must be set aside. See 5 U.S.C.
§ 706(2)(A).’
A
As noted earlier, the CSO Control Policy is an unusual document in that, under § 402(q)(1) of the CWA,
it effectively has the force of a statute. See 33 U.S.C.
§ 1342(q)(1) (requiring that “[e]ach permit, order, or
clarification, the agency’s abdication of its regulatory responsibility is equally indefensible.
5
I therefore have no occasion to address San Francisco’s further argument that the EPA failed to follow its own procedures
under 40 C.F.R. § 122.44(d) when it imposed these two narrative
conditions.
App. 70
decree issued pursuant to this chapter after December
21, 2000, for a discharge from a municipal combined
storm and sanitary sewer shall conform to the Combined Sewer Overflow Control Policy signed by the Administrator on April 11, 1994”). In my view, the EPA’s
direction to San Francisco to prepare an updated LTCP
does not conform to the CSO Control Policy’s limitations on when an amended LTCP may be required. It
therefore violates § 402(q)(1) of the CWA.
The EPA has previously and repeatedly recognized that San Francisco developed an LTCP that,
although spanning multiple documents over several
years, “demonstrated compliance with section I.C.1 of
the CSO Control Policy” and that the City therefore
was “not required to complete a (new) CSO long-term
plan.” See supra at 53-54. But in this most recent permit, the EPA has concluded that San Francisco must
now complete a new LTCP. The question, then, is
whether the provisions of the CSO Control Policy authorize the EPA to require the preparation of a new
“updated” LTCP in the current circumstances. The answer is no.
As the CSO Control Policy acknowledges, the
preparation of an LTCP involves consideration of alternative methods of CSO control that may include substantial and costly infrastructure projects. See, e.g., 59
Fed. Reg. at 18693-94 (requiring consideration of
“cost/performance” considerations in evaluating options and providing for consideration of a “permittee’s
financial capability” when establishing “[c]onstruction
phasing”). It is therefore hardly surprising that, in two
App. 71
respects, the Policy expressly addresses the circumstances in which the agency may require the preparation of an amended LTCP.
First, § I.C.1 of the Policy, which allows substantially completed CSO control facilities to be exempted
from the “initial planning and construction provisions”
governing LTCPs, states that such permittees remain
subject to the Policy’s monitoring requirements and
that, “[i]f after monitoring, it is determined that WQS
are not being attained, the permittee should be required to submit a revised CSO control plan that, once
implemented, will attain WQS.” 59 Fed. Reg. at 18690
(emphasis added). Second, § IV.B.2.g of the Policy
states that the Phase II permits applicable to permittees that have “completed development of the longterm CSO control plan” must include a “reopener
clause authorizing the NPDES authority to reopen and
modify the permit upon determination that the CSO
controls fail to meet WQS or protect designated uses. “
Id. at 18696. In the event of such a determination, then
“the permittee should be required to develop, submit
and implement, as soon as practicable, a revised CSO
control plan which contains additional controls to meet
WQSs and designated uses.” Id. (emphasis added). As
the plain language of these provisions makes clear,
there is only one circumstance in which a permittee
may be required to create a “revised CSO control
plan,” and that is when the water quality standards
App. 72
established to protect the relevant designated uses are
not being attained.6
When the EPA included a permit condition requiring San Francisco to update its LTCP, the EPA explained that it was doing so for several enumerated
reasons. However, none of those reasons involved (or
otherwise referred to) a finding that San Francisco’s
Oceanside System had caused the violation of any
applicable water quality standards. Because no such
determination was made, the Policy’s trigger for requiring submission of a revised LTCP has not been
met. The EPA therefore lacked authority under the
Policy to impose a condition requiring San Francisco to
prepare and submit a revised LTCP.
B
The majority pointedly does not contend that water quality standards are not being met here. Instead,
noting that § IV.B.2.g states that a revised LTCP may
be required “upon determination that the CSO controls
fail to meet WQS or protect designated uses,” 59 Fed.
Reg. at 18696 (emphasis added), the majority holds
that this conjunctive phrasing gives the EPA authority
to require a new LTCP—even where water quality
standards are being met—if the EPA determines that
there nonetheless is, in some undefined sense, a failure
6
"Designated uses” refers to those “uses of the navigable waters involved” that form the basis for the “water quality criteria”
for those waters. 33 U.S.C. § 1313(c)(2)(A); see generally PUD
No. 1, 511 U.S. at 714–15.
App. 73
to “protect designated uses.” See Opin. at 40–41. The
majority’s peculiar notion that the protection of designated uses will be assessed independently of water
quality standards makes no sense. Under § 303 of the
CWA, the applicable “water quality criteria” contained
in the “water quality standards” are the measuring
stick for assessing whether “designated uses” are being
protected. 33 U.S.C. § 1313(c)(2)(A); see also PUD No. 1,
511 U.S. at 714–18. Considered in context, § IV.B.2.g’s
reference to protecting “designated uses”—which are
merely a “component[ ]” of the broader concept of “water quality standards,” see Upper Missouri Waterkeeper
v. EPA, 15 F.4th 966, 969–70 (9th Cir. 2021)—thus adds
nothing to the concept of achieving water quality
standards. And because the EPA has not determined
that water quality standards are not being met,
§ IV.B.2.g did not authorize the EPA to require a new
LTCP.
The majority also claims that the EPA nonetheless
possesses such authority by virtue of § I.C.3 of the Policy, see Opin. at 39-40, but that is wrong. The relevant
language cited by the majority states that, “[i]n the
case of any ongoing or substantially completed CSO
control effort, the NPDES permit or other enforceable
mechanism, as appropriate, should be revised to include all appropriate permit requirements consistent
with Section IV.B. of this Policy.” See 59 Fed. Reg. at
18690. To the extent that the majority thinks that
§ I.C.3 establishes a free-floating authority to impose
permit requirements without regard to § IV.B’s provisions governing “NDPES Permit Requirements,” that
App. 74
is plainly incorrect. On its face, § I.C.3 merely states
that, for partially exempted systems (such as San
Francisco’s), the NPDES permit should include “all appropriate permit requirements consistent with Section
IV.B. of this Policy.” Id. (emphasis added). Any authority conferred by § I.C.3 to impose permit conditions
therefore remains subject to the provisions of § IV.B.
And, as I have explained, § IV.B of the Policy expressly
addresses the issue of preparation of a revised LTCP,
and it only authorizes requiring such a revised plan
“upon determination that the CSO controls fail to meet
WQS or protect designated uses.” Id. at 18696. Because
that condition is not satisfied here, the EPA’s imposition of such a requirement is not “consistent with Section IV.B. of this Policy” and is therefore not authorized
by § I.C.3. Id.
The majority consequently errs in concluding that
the assertedly “outdated” nature of San Francisco’s
LTCP is “enough, by itself, to support EPA’s conclusion
that an updated LTCP is needed.” Opin. at 41–42. This
holding rewrites the CSO Control Policy rather than
applies it. Perhaps the Policy should have included a
broader provision that gave the agency greater authority to require a new LTCP, and perhaps Congress
should have mandated such a change before it adopted
the 1994 Policy as the statutory standard for permits
involving combined sewer systems. But, as written, the
policy allows the agency to order a revised LTCP only
when a determination is made that the permittee’s
CSO controls have led to water quality standards not
being met. As explained, that condition has not been
App. 75
established here. Merely labeling San Francisco’s LTCP
as “outdated” or “inadequate” in some more vague or
general sense is not enough.
Finally, I note that this conclusion does not leave
the agency powerless to address specific deficiencies in
the performance of San Francisco’s system, including
with respect to protection of sensitive areas. Section
IV.B of the Policy leaves the agency with ample authority to craft targeted conditions addressed to the range
of issues covered by the provisions of that section. But
absent a determination that the permittee’s CSO
controls have failed to meet water quality standards,
the agency may not take the much more sweeping
step of requiring a revision of the LTCP itself. Such
a condition is “not in accordance with law.” 5 U.S.C.
§ 706(2)(A).
***
Accordingly, I would grant the petition for review
on this issue as well and would vacate the current permit condition requiring San Francisco to prepare an
updated LTCP. I would do so without prejudice to the
agency’s re-evaluation of whether particular targeted
components of that LTCP-revision condition could be
adopted as free-standing conditions consistent with
§ IV.B of the Policy.
App. 76
IV
For the foregoing reasons, I would grant San Francisco’s petition for review, vacate the challenged permit
conditions, and remand this case to the agency for further consideration. I respectfully dissent.
App. 77
[SEAL]
UNITED STATES
ENVIRONMENTAL
PROTECTION AGENCY
REGION IX
75 Hawthorne Street
San Francisco, CA 94105-3901
OFFICE OF THE
REGIONAL ADMINISTRATOR
NOTICE OF FINAL PERMIT DECISION
NPDES Permit No. CA0037681
For the City and County of San Francisco
Oceanside Water Pollution Control Plant,
Wastewater Collection System, and
Westside Recycled Water Project
In accordance with the requirements of the Code of
Federal Regulations (C.F.R.), Title 40 § 124.19(m), the
United States Environmental Protection Agency, Region 9 (EPA) is issuing a Notice of Final Permit Decision for NPDES Permit No. CA0037681 to the City and
County of San Francisco for the Oceanside Water Pollution Control Plant, Wastewater Collection System,
and Westside Recycled Water Project (San Francisco),
reissued on December 10, 2019. The final NPDES Permit and copy of this notice are available on EPA’s web
page at: https://www.epa.gov/npdes-permits/city-andcounty-san-francisco-oceanside-water-pollution-controlplant-wastewater.
San Francisco filed a petition for review (Petition) of
the final Permit with EPA’s Environmental Appeals
Board (EAB) on January 13, 2020. In the Petition, San
App. 78
Francisco contested certain conditions of the Final
Permit. The uncontested and severable portions of the
Final Permit were placed into effect pursuant to a Notice of Uncontested and Severable Conditions, dated
February 7, 2020. The contested conditions were stayed
pending a decision by the EAB on the Petition and final
agency action.
On December 1, 2020, the EAB issued an order denying the Petition in its entirety. In re City and County
of San Francisco, NPDES Appeal No. 20-01, 18 EAB
322. Under 40 C.F.R. § 124.19(m)(2)(i), the Regional
Administrator must issue a final permit decision when
the Board issues notice to the parties that a petition
for review has been denied. I am, accordingly, hereby
issuing my final permit decision. The contested conditions shall become fully effective and enforceable in
accordance with the terms of the Final Permit on February 1, 2021.1
This decision constitutes final agency action under 40
C.F.R. § 124.19(m)(1). Under 40 C.F.R. § 23.2 this Notice becomes effective for purposes of judicial review
1
The permit expiration date remains unchanged and is October 31, 2024.
App. 79
under 33 U.S.C. § 1369(b) and 5 U.S.C. § 704 two weeks
after the Notice is signed.
Dated:
Digitally signed by
JOHN BUSTERUD
JOHN
Date: 2020.12.22
/s/ BUSTERUD 10:28:43-08’00’
John W. Busterud
Regional Administrator
App. 80
U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION IX
75 Hawthorne Street, San Francisco, California 94105
(415) 947-8707 • Fax (415) 947-3549
http://www.epa.gov/region9/
CALIFORNIA REGIONAL WATER
QUALITY CONTROL BOARD
SAN FRANCISCO BAY REGION
1515 Clay Street, Suite 1400, Oakland, CA 94612
(510) 622-2300 • Fax (510) 622-2460
http://www.waterboards.ca.gov/sanfranciscobay
ORDER No. R2-2019-0028
NPDES No. CA0037681
WASTE DISCHARGE REQUIREMENTS AND
NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM PERMIT FOR
CITY AND COUNTY OF SAN FRANCISCO
OCEANSIDE WATER POLLUTION CONTROL
PLANT, WASTEWATER COLLECTION SYSTEM,
AND WESTSIDE RECYCLED WATER PROJECT
The following Discharger is authorized to discharge
from the locations listed in Table 2 in accordance with
the waste discharge requirements (WDRs) and federal National Pollutant Discharge Elimination System
(NPDES) permit requirements set forth in this Order:
Table 1. Discharger Information
Discharger
City and County of San Francisco
Facility Name
Oceanside Water Pollution
Control Plant, Wastewater
App. 81
Collection System, and Westside
Recycled Water Project
3500 Great Highway
Facility Address San Francisco, CA 94132
San Francisco County
CIWQS Place
Number
256498
Table 2. Discharge Locations
DisDisDischarge ReceivEffluent
charge
charge
Point
ing
Description
Point
Point
Longitude Water
Latitude
Treated effluent,
including the following:
• Secondarytreated effluent from
Oceanside Water Pollution
Control Plant
Pacific
(dry weather);
001
• Primary- and 37.70500 -122.57750 Ocean,
secondaryOffshore
treated effluent from
Oceanside Water Pollution
Control Plant
(wet weather);
• Equivalent-toprimarytreated
App. 82
effluent from
Westside
Transport/Stor
age Structure
(wet weather);
and
• Reverse osmosis concentrate
from Westside
Recycled Water Project,
when operational (dry and
wet weather).
CSD001
[2]
CSD002
CSD003
Pacific
Equivalent-toOcean
primary-treated
(Fort
37.71528 -122.50444
effluent (wet
Funston,
weather)
Ocean
Beach)
Pacific
Equivalent-toOcean
primary-treated
(Vicente
37.73778 -122.50806
effluent (wet
St.,
weather)
Ocean
Beach
Pacific
Equivalent-toOcean
primary-treated
(Lincoln
37.76389 -122.51167
effluent (wet
Way,
weather)
Ocean
Beach)
App. 83
CSD004
CSD005
CSD006
CSD007
Equivalent-toprimary-treated
effluent (wet
weather)
Equivalent-toprimary-treated
effluent (wet
weather)
Equivalent-toprimary-treated
effluent (wet
weather)
Equivalent-toprimary-treated
effluent (wet
weather)
37.78472
37.78778
37.78944
37.78944
Pacific
Ocean
-122.51028
(Mile
Rock)
Pacific
Ocean
-122.49167
(China
Beach)
Pacific
Ocean
-122.48778
(Baker
Beach)
Pacific
Ocean
-122.48694
(Baker
Beach)
Table 3. Administrative Information
The U.S. Environmental
Protection Agency, Region
IX, issued this Order on:
The San Francisco Bay
Regional Water Quality
Control Board adopted
this Order on:
September 11, 2019
This Order shall become
effective on:
November 1, 2019
This Order shall expire on:
October 31, 2024
The Discharger shall file a
Report of Waste Discharge
as an application for reissuance of WDRs in accordance with California Code
February 1, 2024
App. 84
of Regulations, title 23, and
an application for reissuance
of a National Pollutant
Discharge Elimination
System (NPDES) permit
no later than:
This discharge is classified
as follows:
Major
Administrative Information for U.S. Environmental
Protection Agency Region IX
This permit was issued on: December 10, 2019
This permit shall become
effective on:
February 1, 2019
Permit reapplication due
no later than:
February 1, 2024
This permit shall expire at
October 31, 2024
midnight on:
In accordance with 40 CFR 122.21(d), the permittee
shall submit a new application for a permit at least 180
days before the expiration date of this permit, unless
permission for a date no later than the permit expiration date has been granted by the Director.
Signed this 10th day of December , 2019, for the
Regional Administrator.
/s/ Tomás Torres
Tomás Torres, Director
Water Division
App. 85
[3] The signatures below certify that this Order with
all attachments is a full, true, and correct copy of the
Order adopted by the California Regional Water Quality Control Board, San Francisco Bay Region, on the
date indicated above, and an NPDES permit issued by
the U.S. Environmental Protection Agency, Region IX,
on the date above.
9/12/2019
/s/ Michael Montgomery
Michael Montgomery,
Executive Officer
San Francisco Bay
Regional Water Board
Tomás Torres, Water
Division Director
U.S. Environmental
Protection Agency
[4] Contents
I.
Facility Information...................................
5
II.
Findings .....................................................
5
III.
Discharge Prohibitions ..............................
6
IV.
Effluent Limitations and Discharge Specifications ....................................................
7
A. Technology-Based Effluent Limitations .....................................................
7
B. Water Quality-Based Effluent Limitations ..................................................
8
V.
Receiving Water Limitations .....................
9
VI.
Provisions ..................................................
9
A. Standard Provisions ............................
9
B. Monitoring and Reporting ...................
9
App. 86
C. Special Provisions ............................... 10
1. Reopener Provisions ....................... 10
2. Effluent Characterization Study and
Report ............................................. 10
3. Pollutant Minimization Program ..... 11
4. Special Provisions for Publicly-Owned
Treatment Works (POTWs) ............ 13
5. Combined Sewer System ................ 15
6. Westside Recycled Water Project Operations Notification ....................... 23
7. Flame Retardant Special Study ..... 23
8. Efficacy of Combined Sewer System Controls Special Study ............ 23
Tables
Table 1. Discharger Information ........................
1
Table 2. Discharge Locations .............................
1
Table 3. Administrative Information .................
2
Table 4. Effluent Limitations – Oceanside Water Pollution Control Plant ...................
7
Table 5. Effluent Limitations – Westside Recycled Water Project .................................
8
Table 6. Effluent Limitations – Discharge Point
No. 001 ..................................................
8
Table 7. Tasks to Update Long-Term Control
Plan (LTCP) .......................................... 21
App. 87
Attachments
Attachment A – Definitions ................................ A-1
Attachment B – Facility and Receiving Water
Maps ......................................... B-1
Attachment C – Process Flow Schematics .......... C-1
Attachment D – Federal Standard Provisions .... D-1
Attachment E – Monitoring and Reporting Program (MRP) .............................. E-1
Attachment F – Fact Sheet ................................. F-1
Attachment G – Regional Standard Provisions
and Monitoring and Reporting
Requirements............................ G-1
Attachment H – Pretreatment Requirements ..... H-I
[5] I.
FACILITY INFORMATION
Information describing the Oceanside Water Pollution Control Plant, Wastewater Collection System,
and Westside Recycled Water Project (collectively,
the Facility) is summarized in Table 1 and in Fact
Sheet (Attachment F) sections I and II.
II. FINDINGS
The California Regional Water Quality Control
Board, San Francisco Bay Region (Regional Water
Board), and the U.S. Environmental Protection
Agency (U.S. EPA) find:
A. Legal Authorities. This Order serves as
WDRs pursuant to California Water Code article 4, chapter 4, division 7 (commencing with
§ 13260). This Order is also issued pursuant
App. 88
to federal Clean Water Act (CWA) section 402
and implementing regulations adopted by
U.S. EPA and Water Code chapter 5.5, division
7 (commencing with § 13370). It shall serve as
a National Pollutant Discharge Elimination
System (NPDES) permit authorizing the Discharger to discharge into waters of the United
States as listed in Table 2 subject to the WDRs
and NPDES permit requirements in this Order.
B. Background and Rationale for Requirements. The Regional Water Board and U.S.
EPA developed the requirements in this Order based on information the Discharger submitted as part of its application, information
obtained through monitoring and reporting
programs, and other available information.
The Fact Sheet contains background information and rationale for the requirements in
this Order and is hereby incorporated into
and constitutes findings for this Order. Attachments A through E, G, and H are also incorporated into this Order.
C. Notification of Interested Parties. The Regional Water Board and U.S. EPA notified the
Discharger and interested agencies and persons of their intent to jointly issue WDRs and
NPDES permit requirements, and provided
an opportunity to submit written comments
and recommendations. The Fact Sheet provides details regarding the notification.
D. Consideration of Public Comment. The
Regional Water Board, in a public meeting,
App. 89
heard all comments pertaining to the discharge.
The Fact Sheet provides details regarding the
public hearing. The Regional Water Board and
U.S. EPA considered all comments pertaining
to the discharge.
THEREFORE, IT IS HEREBY ORDERED that
Order No. R2-2009-0062 (previous order) is rescinded
upon the effective date of this Order, except for enforcement purposes, and in order to meet the provisions of Water Code division 7 (commencing with
§ 13000) and regulations adopted thereunder and the
provisions of the CWA and regulations and guidelines
adopted thereunder, the Discharger shall comply with
the requirements in this Order. The Regional Water
Board intends that joint issuance of this Order with
U.S. EPA will serve as its certification under CWA section 401 that discharges pursuant to this Order comply
with 33 U.S.C. sections 1311, 1312, 1313, 1316, and
1317. This action in no way prevents the Regional Water Board or U.S. EPA from taking enforcement action
for past violations of the previous order.
[6] III.
DISCHARGE PROHIBITIONS
A. Discharge of treated wastewater at a location
or in a manner different than described in this
Order is prohibited.
B. Bypass of untreated or partially-treated wastewater to waters of the United States is prohibited, except as provided for in Attachment D
section I.G. Combined sewer discharges during wet weather (as defined in Attachment A)
App. 90
authorized by this Order are not subject to
this prohibition.
Blended wastewater is biologically-treated
wastewater blended with wastewater diverted around biological treatment units at
the Oceanside Water Pollution Control Plant.
These anticipated discharges are approved
under the bypass conditions when (1) the
Discharger’s instantaneous wet weather influent flow exceeds the capacity of the biological treatment units of 43 MGD, (2) all wet
weather flows passing the headworks of the
plant receive at least primary treatment, and
(3) the discharge complies with the applicable
effluent and receiving water limitations contained in this Order. Furthermore, the Discharger shall operate its Facility as designed
and in accordance with the Operation and
Maintenance Manual for the Facility. This
means it shall optimize storage and use of
equalization units and shall fully utilize the
biological treatment units. The Discharger
shall report incidents of blended effluent discharges in monthly self-monitoring reports
and shall conduct monitoring of this discharge
as specified in the attached Monitoring and
Reporting Program (MRP) (Attachment E).
C. Discharge at Discharge Point No. 001 is prohibited when the discharge does not receive
a minimum initial dilution of at least 148:1
(parts seawater per part wastewater), as modeled assuming no currents. Compliance shall
be achieved by proper operation and maintenance of the discharge outfall to ensure that
App. 91
it (or its replacement, in whole or part) is in
good working order and is consistent with, or
can achieve better mixing than, 148:1. The
Discharger shall describe measures taken to
ensure compliance in its Report of Waste Discharge and application for permit reissuance.
D. Discharge to a water of the United States
from any location other than Discharge Point
No. 001 is prohibited, except from Discharge
Point Nos. CSD-001, CSD-002, CSD-003, CSD004, CSD-005, CSD-006, and CSD-007 during
wet weather (as defined in Attachment A) in
accordance with the requirements in this Order.
E. Average dry weather Oceanside Water Pollution Control Plant influent flow in excess of 43
MGD is prohibited. Average dry weather influent flow shall be determined from three
consecutive dry weather months each year,
with compliance measured at Monitoring Location INF-001A as described in the MRP.
[7] IV. EFFLUENT LIMITATIONS AND DISCHARGE SPECIFICATIONS
A. Technology-Based Effluent Limitations
1. Oceanside Water Pollution Control
Plant
During dry weather, the Discharger shall
comply with the following effluent limitations for discharges from the Oceanside
Water Pollution Control Plant, with compliance measured at Monitoring Location
EFF-001A as described in the MRP, as
follows:
Footnotes:
[1]
The arithmetic mean of CBOD5 and TSS, by concentration, of effluent samples collected at
Monitoring Location EFF-001A as described in the MRP shall not exceed 15 percent of the
arithmetic mean of the CBOD5 and TSS, by concentration, of influent samples collected at
Monitoring Location INF-001A as described in the MRP, at approximately the same times
during the same periods.
[2]
If the Discharger monitors pH continuously, pursuant to 40 C.F.R. § 401,17 the Discharger
shall be in compliance with this pH limitation provided that both of the following conditions
are satisfied: (i) the total time during which the pH is outside the required range shall not
exceed 7 hours and 26 minutes in any calendar month; and (ii) no individual excursion from
the required pH range shall exceed 60 minutes.
Abbreviations:
mg/L = milligrams per liter
s.u. = standard units
%
= percent
Table 4. Effluent Limitations – Oceanside Water Pollution Control Plant
Effluent Limitations
Parameter
Units
Average
Average Maximum Instantaneous Instantaneous
Monthly
Weekly
Daily
Minimum
Maximum
Carbonaceous
Biochemical
Oxygen Demand, mg/L
25
40
–
–
–
5-day @ 20°C
(CBOD5)
Total Suspended
mg/L
30
45
–
–
–
Solids (TSS)
CBOD5 Removal
85
%
–
–
–
–
[1]
(minimum)
85
TSS Removal [1]
%
–
–
–
–
(minimum)
pH [2]
s.u.
–
–
–
6.0
9.0
App. 92
App. 93
During wet weather, the Discharger shall comply
with the narrative technology-based effluent limitations contained in Provision VI.C.5.a (Nine Minimum Controls).
2. Westside Recycled Water Project
When recycled water is being produced,
the Discharger shall comply with the following effluent limitations for discharges
from the Westside Recycled Water Project, with compliance measured at Monitoring Location EFF-001R as described in
the MRP, as follows:
Footnote:
[1]
If the Discharger monitors pH continuously, pursuant to 40 C.F.R. § 401.17 the Discharger
shall be in compliance with this pH limitation provided that both of the following conditions
are satisfied: (i) the total time during which the pH is outside the required range shall not
exceed 7 hours and 26 minutes in any calendar month; and (ii) no individual excursion from
the required pH range shall exceed 60 minutes.
Abbreviations:
mg/L = milligrams per liter
mL/L = milliliters per liter
NTU = nephelometric turbidity units
s.u. = standard units
[8] Table 5. Effluent Limitations – Westside Recycled Water Project
Effluent Limitations
Parameter
Units
Average
Average Maximum Instantaneous Instantaneous
Monthly
Weekly
Daily
Minimum
Maximum
TSS
mg/L
60
–
–
–
–
pH [1]
s.u.
–
–
–
6.0
9.0
Oil and Grease
mg/L
25
40
–
–
75
Settleable Solids mL/L
1.0
1.5
–
–
3.0
Turbidity
NTU
75
100
–
–
225
App. 94
App. 95
B. Water Quality-Based Effluent Limitations
During dry weather, the Discharger shall
comply with the following effluent limitation
for discharges at Discharge Point No. 001,
with compliance measured at Monitoring Location EFF-001C as described in the MRP, as
follows:
Footnote:
[1]
MRP section V sets forth chronic toxicity monitoring requirements. The discharge is subject
to determination of “Pass” or “Fail” from a single chronic toxicity test conducted at the
in-stream waste concentration (IWC) defined in MRP section V.A.2 using the Test of Significant Toxicity (TST) statistical approach (Welch’s t-test) in National Pollutant Discharge
Elimination System Test of Significant Toxicity Implementation Document (EPA 833-R-10003, 2010), Appendix A, Figure A-1 and Table A-1, and Appendix B, Table B-1.
The TST null hypothesis shall be the following:
Mean discharge IWC response 50.75 x Mean control response
A test result that rejects this null hypothesis shall be reported as “Pass.” A test result that
does not reject this null hypothesis shall be reported as “Fail.” The relative “Percent Effect”
at the discharge IWC shall also be reported as:
([Mean control response -Mean discharge IWC response] ÷ Mean control response) x 100
Table 6. Effluent Limitations – Discharge Point No. 001
Effluent Limitations
Parameter
Units
Average
Average Maximum Instantaneous Instantaneous
Monthly
Weekly
Daily
Minimum
Maximum
[1]
Chronic Toxicity
mg/L
60
–
–
–
–
App. 96
App. 97
During wet weather, the Discharger shall comply with
the narrative water quality-based effluent limitations
contained in Provision VI.C.5.c (Long-Term Control
Plan) for the Discharge Points in Table 2.
[9] V.
RECEIVING WATER LIMITATIONS
Discharge shall not cause or contribute to a violation of any applicable water quality standard
(with the exception set forth in State Water Board
Order No. WQ 79-16) for receiving waters adopted
by the Regional Water Board, State Water Resources Control Board (State Water Board), or U.S.
EPA as required by the CWA and regulations
adopted thereunder. If more stringent water quality standards are promulgated or approved pursuant to CWA section 303, or amendments thereto,
the Regional Water Board and U.S. EPA may revise or modify this Order in accordance with the
more stringent standards.
VI. PROVISIONS
A. Standard Provisions
1.
The Discharger shall comply with all
“Standard Provisions” included in Attachment D. In Attachment D, references to
“Regional Water Board” shall be interpreted as “Regional Water Board and U.S.
EPA,” and references to “Regional Water
Board Executive Officer” shall be interpreted as “Regional Water Board Executive Officer and U.S. EPA.”
2.
The Discharger shall comply with all
applicable provisions of the “Regional
App. 98
Standard Provisions, and Monitoring and
Reporting Requirements” (Attachment G),
except as follows:
a.
Attachment G section V.C.1.d.iv
(Dioxin-TEQ). The Discharger shall
calculate and report dioxin-TEQs
using the definition of TCDD Equivalents in Attachment A, which supersedes the definition in Attachment G.
b.
Attachment G section III.A.2 (Minimum Levels). The Discharger shall
comply with the minimum levels
listed in Ocean Plan Appendix II in
lieu of those listed in Attachment G
Table B.
c.
Attachment G section III.A.3.b.v(b)
(Approved Wet Weather Bypasses).
The Discharger shall comply with
the monitoring requirements for wet
weather secondary bypasses in MRP
Table E-5 (Monitoring Location EFF001B) in lieu of those listed in Attachment G section II.A.3.b.v(b).
In Attachment G, references to “Regional
Water Board” shall be interpreted as “Regional Water Board and U.S. EPA,” and
references to “Regional Water Board Executive Officer” shall be interpreted as
“Regional Water Board Executive Officer
and U.S. EPA.”
App. 99
B. Monitoring and Reporting
The Discharger shall comply with the MRP,
and future revisions thereto, and applicable
sampling and reporting requirements in Attachments D and G.
[10] C.
Special Provisions
1.
Reopener Provisions
The Regional Water Board or U.S. EPA
may modify or reopen this Order prior to
its expiration date in any of the following
circumstances, as allowed by law:
a.
If present or future investigations
demonstrate that the discharges governed by this Order have or will have
a reasonable potential to cause or
contribute to, or will cease to have,
adverse impacts on water quality or
beneficial uses of the receiving waters.
b.
As new or revised water quality
standards or total maximum daily
loads (TMDLs) come into effect for
surface waters of the State (whether
statewide, regional, or site-specific).
In such cases, effluent limitations in
this Order may be modified as necessary to reflect updated water quality
standards and wasteload allocations
in TMDLs. Adoption of effluent limitations contained in this Order is
not intended to restrict in any way
future modifications based on legally
App. 100
adopted water quality objectives,
TMDLs, or as otherwise permitted
under federal regulations governing
NPDES permit modifications.
c.
If translator, dilution, or other water
quality studies provide a basis for determining that a permit condition
should be modified.
d.
If State Water Board precedential
decisions, new policies, new laws, or
new regulations are adopted.
e.
If an administrative or judicial decision on a separate NPDES permit or
WDRs addresses requirements similar to this discharge.
f.
If combined sewer system discharge
controls fail to meet water quality
standards or protect designated uses.
g.
Or as otherwise authorized by law.
The Discharger may request a permit
modification based on any of the circumstances above. With any such request, the
Discharger shall include antidegradation
and anti-backsliding analyses.
2. Effluent Characterization Study and
Report
a.
Study Elements. The Discharger
shall characterize and evaluate the dry
weather discharge from Discharge Point
No. 001 to verify that the reasonable
potential analysis conclusions of this
App. 101
Order remain valid and to inform
the next permit reissuance. The Discharger shall monitor Ocean Plan Table 1 pollutants as described in the
MRP and evaluate on an annual basis whether concentrations of any
Ocean Plan Table 1 pollutants significantly increase over past performance.
The Discharger shall investigate the
cause of any such increases. The investigation may include, but need not
be limited to, increasing the monitoring frequency, monitoring internal
process streams, and monitoring of influent sources. The Discharger shall
establish remedial measures addressing any increases resulting in reasonable potential to cause or contribute
to an exceedance [11] of applicable
water quality objectives (see Fact Sheet
Tables F-9 and F-10 for the objectives). This requirement to establish
remedial measures may be satisfied
through identification of the constituent as a “pollutant of concern” in the
Discharger’s Pollutant Minimization
Program, described in Provision VI.C.3.
b.
Reporting Requirements
i.
Routine Reporting. The Discharger shall, within 45 days of
receipt of analytical results, report the identity of any Ocean
Plan Table 1 pollutant detected
at or above the applicable water
App. 102
quality objective to the Regional
Water Board and U.S. EPA.
ii. Annual Reporting. The Discharger shall summarize the annual data evaluation and source
investigation in its annual selfmonitoring report (see MRP
§ VIII.B).
3. Pollutant Minimization Program
a.
The Discharger shall continue to
improve its Pollutant Minimization
Program to promote minimization of
pollutant loadings to the sewer system and therefore to the receiving
waters.
b.
The Discharger shall submit an annual report no later than February
28 each year. Each annual report
shall include at least the following
information:
i.
Brief description of treatment
plant. The description shall include the service area and treatment plant processes.
ii. Discussion of current pollutants of concern. Periodically,
the Discharger shall analyze its
circumstances to determine which
pollutants are currently a problem and which pollutants may
be potential future problems.
This discussion shall include the
App. 103
reasons for choosing the pollutants. At a minimum, the Discharger shall consider copper
and zinc as pollutants of concern.
iii. Identification of sources for
pollutants of concern. This
discussion shall include how the
Discharger intends to estimate
and identify pollutant sources. The
Discharger shall include sources
or potential sources not directly
within the ability or authority of
the Discharger to control, such
as pollutants in the potable water supply and air deposition.
iv. Identification of tasks to reduce the sources of pollutants
of concern. This discussion shall
identify and prioritize tasks to
address the Discharger’s pollutants of concern. The Discharger
may implement the tasks by itself or participate in group, regional, or national tasks that
address its pollutants of concern.
The Discharger is strongly encouraged to participate in group,
regional, or national tasks that
address its pollutants of concern
whenever it is efficient and appropriate to do so. An implementation timeline shall be included
for each task.
App. 104
v.
Outreach to employees. The
Discharger shall inform employees about the pollutants of concern, potential sources, and how
they might be able to help reduce
the [12] discharge of these pollutants of concern into the Facility.
The Discharger may provide a forum for employees to provide input.
vi. Continuation of Public Outreach Program. The Discharger
shall continue a pollution prevention public outreach program for
its service area. Outreach may
include participation in existing
community events, such as county
fairs; initiating new community
events, such as displays and contests during Pollution Prevention
Week; conducting school outreach
programs; conducting plant tours;
and providing public information
in newspaper articles or advertisements, radio or television stories or spots, newsletters, utility
bill inserts, or web sites. Information shall be specific to target
audiences. The Discharger shall
coordinate with other agencies
as appropriate.
vii. Discussion of criteria used to
measure Pollutant Minimization Program and task effectiveness. The Discharger shall
App. 105
establish criteria to evaluate the
effectiveness of its Pollutant Minimization Program. This discussion shall identify the specific
criteria used to measure the effectiveness of each task in Provisions VI.C.3.b.iii, iv, v, and vi.
viii. Documentation of efforts and
progress. This discussion shall
detail all of the Discharger’s Pollutant Minimization Program activities during the reporting year.
ix. Evaluation of Pollutant Minimization Program and task
effectiveness. The Discharger
shall use the criteria established
in Provision VI.C.3.b.vii to evaluate the program and task effectiveness.
x.
c.
Identification of specific tasks
and timelines for future efforts. Based on the evaluation,
the Discharger shall explain how
it intends to continue or change
its tasks to more effectively reduce the amount of pollutants
flowing to the Facility, and subsequently in its effluent.
The Discharger shall develop and
conduct a Pollutant Minimization Program as further described below when
there is evidence that a priority pollutant is present in the effluent above
App. 106
an effluent limitation (e.g., sample
results reported as detected but not
quantified [DNQ] when the effluent
limitation is less than the method detection limit [MDL], sample results
from analytical methods more sensitive than those methods required by
this Order, presence of whole effluent
toxicity, health advisories for fish
consumption, or results of benthic or
aquatic organism tissue sampling)
and either:
i.
A sample result is reported as
DNQ and the effluent limitation
is less than the Reporting Level
(RL); or
ii. A sample result is reported as
not detected (ND) and the effluent limitation is less than the
MDL using definitions in Attachment A and reporting protocols
described in the MRP.
d.
If triggered by the reasons set forth
in Provision VI.C.3.c, the Discharger’s
Pollutant Minimization Program shall
include, but not be limited to, the following actions and submittals:
[13] i. Annual review and semiannual monitoring of potential
sources of the reportable pollutant, which may include fish tissue monitoring and other biouptake sampling, or alternative
App. 107
measures when source monitoring is unlikely to produce useful
analytical data;
ii. Quarterly monitoring for the reportable pollutant in treatment
plant influent. The Regional Water Board Executive Officer and
U.S. EPA may approve alternative measures when influent monitoring is unlikely to produce
useful analytical data;
iii. Submittal of a control strategy
designed to proceed toward the
goal of maintaining concentrations of the reportable pollutant
in the effluent at or below the effluent limitation;
iv. Implementation of appropriate
cost-effective control measures
for the reportable pollutant, consistent with the control strategy;
and
v.
Inclusion of the following within
the annual report required by
Provision VI.C.3.b:
(a) All Pollutant Minimization
Program monitoring results
for the previous year;
(b) List of potential sources of
the reportable pollutant;
App. 108
(c) Summary of all actions undertaken pursuant to the
control strategy; and
(d) Description of actions to be
taken in the following year.
4. Special Provisions for Publicly-Owned
Treatment Works (POTWs)
a.
Sludge and Biosolids Management. The Discharger shall manage
its sludge and biosolids in accordance
with federal regulations (40 C.F.R.
parts 258 and 503) and Attachment
H.
i.
Sludge and biosolids treatment
and storage shall not create a
nuisance, such as objectionable
odors or flies, or result in groundwater contamination.
ii. Sludge and biosolids treatment
and storage facilities shall be adequate to divert surface runoff
from adjacent areas, to protect
site boundaries from erosion, and
to prevent conditions that would
cause drainage from stored materials. Adequate protection is
defined as protection from at
least a 100-year storm and the
highest possible tidal state that
may occur.
iii. This Order does not authorize permanent onsite sludge or biosolids
App. 109
storage or disposal. A Report of
Waste Discharge shall be filed
and the site brought into compliance with applicable regulations
prior to commencement of any
such activity.
b.
Pretreatment Program. The Discharger shall implement and enforce
its approved pretreatment program
in accordance with federal pretreatment regulations (40 C.F.R. part 403);
pretreatment standards promulgated
under CWA sections 307(b), 307(c),
and 307(d); pretreatment requirements specified under 40 C.F.R. section 122.44(j); and the requirements
in Attachment H, “Pretreatment Requirements.” The Discharger’s responsibilities include, but are not limited
to, the following:
[14] i. Enforcement of the National
Pretreatment Standards of 40
C.F.R. sections 403.5 and 403.6;
ii. Implementation of its pretreatment program in accordance with
legal authorities, policies, procedures, and financial provisions
described in the National Pretreatment Program (40 C.F.R.
part 403);
iii. Submission of reports to the
State Water Board, the Regional
App. 110
Water Board, and U.S. EPA as
described in Attachment H; and
iv. Evaluation of the need to revise
local limits as required under 40
C.F.R. sections 122.44(j)(2)(ii) and
403.5(c)(1) and, by November 1,
2020, submission of a report describing the changes to local limits with a plan and schedule for
implementation, or the rationale
for making no changes to local
limits.
c.
Anaerobically-Digestible Material.
If the Discharger receives hauled-in
anaerobically-digestible material for
injection into an anaerobic digester,
the Discharger shall notify the Regional Water Board and develop and
implement Standard Operating Procedures for this activity. The Standard Operating Procedures shall be
developed prior to initiation of hauling. The Standard Operating Procedures shall address material handling,
including unloading, screening, or
other processing prior to anaerobic
digestion; transportation; spill prevention; spill response; avoidance of
the introduction of materials that
could cause interference, pass through,
or upset of the treatment processes;
avoidance of prohibited material; vector control; odor control; operation and
maintenance; and the disposition of
App. 111
any solid waste segregated from introduction to the digester. The Discharger shall train its staff on the
Standard Operating Procedures and
maintain records for a minimum of
three years for each load received, describing the hauler, waste type, and
quantity received. In addition, the
Discharger shall maintain records
for a minimum of three years for the
disposition, location, and quantity of
cumulative pre-digestion segregated
solid waste hauled offsite.
d.
Separate Sanitary Sewer Systems.
The Discharger shall properly operate
and maintain its separate sanitary
collection systems (see Attachments
D and G, section I.D), report any noncompliance with respect to its separate sanitary collection systems (see
Attachments D and G, sections V.E.1
and V.E.2), and mitigate any discharges in violation of this Order associated with its separate sanitary
collection systems (see Attachments
D and G, section I.C).
State Water Board Order No. 20060003-DWQ, Statewide General Waste
Discharge Requirements for Sanitary
Sewer Systems, as amended by State
Water Board Order No. WQ 20130058-EXEC (statewide WDRs), contains requirements for operation and
maintenance of collection systems
App. 112
and for reporting and mitigating sanitary sewer overflows. The statewide
WDRs clearly and specifically stipulate requirements for operation and
maintenance and for reporting and
mitigating sanitary sewer overflows.
Implementing the requirements for
operation and maintenance and mitigation of sanitary sewer overflows
set forth in the statewide WDRs (and
any subsequent order updating those
requirements) shall satisfy the corresponding federal NPDES requirements [15] specified in Attachments D
and G of this Order for the separate
sanitary collection systems. Following the reporting requirements set
forth in the statewide WDRs (and any
subsequent order updating these requirements) shall satisfy the NPDES
reporting requirements for sanitary
sewer overflows specified in Attachments D and G.
5. Combined Sewer System
a.
Nine Minimum Controls. The Discharger shall implement the following nine minimum controls:
i.
Control No. 1: Conduct Proper
Operations and Maintenance
Program. The Discharger shall
implement an operations and
maintenance program that establishes operation, maintenance,
App. 113
and inspection procedures to ensure that the combined sewer
system is operated and maintained in a manner that complies with the requirements of
this Order. The program shall include the elements listed below:
(a) Organizational Structure.
The Discharger shall maintain an up-to-date directory
of operations and maintenance staff, and a designated
primary contact person for
the Facility. The Discharger
shall notify the Regional Water Board and U.S. EPA within
90 days of designating a new
primary contact person.
(b) Budget. The Discharger shall
allocate sufficient funds and
personnel for routine operations and maintenance, and
to provide for possible emergencies.
(c) Critical Facilities and Major System Components.
The Discharger shall maintain a written inventory of
critical facilities and major system components (i.e., those
facilities and system components that affect the performance of the combined sewer
App. 114
system). The inventory shall
include force mains, pump stations, major treatment plant
units, transport/storage structures, combined sewer discharge outfalls, Discharge
Point No. 001 outfall, tide
gates, overflow weirs, and baffles. The Discharger shall include the following information
for each critical facility and
major system component in
the inventory:
(1) Physical description (e.g.,
capacity, dimensions, age)
and location;
(2) Status (e.g., elements out
of service or planned to
be taken out of service);
and
(3) Description of preventative maintenance planned
and completed.
At a minimum, the Discharger shall review and
update the inventory once
every 12 months. The Discharger may combine the
inventory and the Wastewater Facilities Status
Report (see Attachment
G section I.D.2) into one
document.
App. 115
(d) Procedures for Routine
Maintenance. The Discharger
shall document procedures
for routine maintenance and
timely repair of the critical
facilities and major system
components listed in the inventory required by Provision VI.C.5.a.i(c). Routine
maintenance shall focus on
preventative maintenance to
avoid failures during critical
times.
(e) Non-Routine Maintenance
and Emergency Situations.
The Discharger shall develop
and implement an emergency
response plan for each critical facility to [16] minimize
the likelihood and adverse
impacts of failure to the
maximum extent practicable.
The emergency response plan
shall be consistent with the
Contingency Plan required
by Attachment G section I.C.1.
(f ) Inspections. The Discharger
shall conduct an inspection
program of the combined sewer
system to provide reasonable assurance that unpermitted discharges, obstructions,
and damage will be discovered.
App. 116
At a minimum, the Discharger
shall do the following:
(1) Inspect each critical facility and major system
component identified in
accordance with Provision VI.C.5.a.i(c), above,
at least once every 12
months to ensure they
are in good working
condition. The inspection shall include, but not
be limited to, entering
the regulator structure,
if accessible; determining the extent of any
structural defects or debris and grit buildup;
removing any debris that
may constrict flow, cause
blockage, or result in a
prohibited discharge; and
adjusting tide gates to
minimize combined sewer
discharges and to prevent tidal inflow.
(2) Record all inspection results, including the date
and time of the inspection, the inspection findings, and description of
any corrective actions
taken.
App. 117
(g) Training. The Discharger
shall provide training to operations and maintenance staff
regarding operation and maintenance duties and standard
operation procedures. Training shall be consistent with
the Discharger’s Operation
and Maintenance Manual
required by Attachment G
section I.D.1 (Operation and
Maintenance Manual).
(h) Operation and Maintenance Program Review.
The Discharger shall review
and modify its operations
and maintenance program
as necessary and in accordance with sections I.C (Duty
to Mitigate) and I.D (Proper
Operation and Maintenance)
of Attachments D and G. At
a minimum, the Discharger
shall review and update the
Operation and Maintenance
Manual required by Attachment G section I.D.1 (Operation and Maintenance Manual)
once per calendar year.
ii. Control No. 2: Maximize Use of
Collection System for Storage
(a) The Discharger shall maximize use of the combined
App. 118
sewer system for in-line storage to reduce the magnitude,
frequency, and duration of
combined sewer discharges.
At a minimum, the Discharger
shall implement the following controls:
(1) Prevent intrusion of receiving waters into the
combined sewer system;
(2) Use all facilities, including any inoperative or
unused treatment facilities, to store or treat wet
weather flows to the maximum extent practicable;
and
(3) Implement programs to
remove and prevent flow
obstructions in the combined sewer system, including but not limited
to catch basin cleaning;
gravity sewer cleaning;
fats, oils and grease control; gravity sewer condition assessment; [17]
gravity sewer rehabilitation and replacement; and
disconnection of illegal
connections.
(b) The Discharger shall notify
and report sewer overflows
App. 119
from the combined sewer
system by implementing the
following within six months
of the effective date of this
Order:
(1) The Discharger shall complete the CIWQS Online
Collection System Questionnaire, as required by
the CIWQS system, and
enter information regarding all sewer overflows
from the combined sewer
system into the CIWQS
Online SSO Database,
including all required
database fields. The Discharger’s Legally Responsible Official, as required
by the CIWQS system,
shall certify all information submitted. The
Discharger shall update
and certify the Collection System Questionnaire at least every 12
months.
(2) For sewer overflows from
the combined sewer system with volumes 1,000
gallons or greater, the
Discharger shall submit
draft reports through
the CIWQS Online SSO
App. 120
database within 3 business days of becoming
aware of the sewer overflow from the combined
sewer system and certify the reports within
15 calendar days of the
end date of the sewer
overflow from the combined sewer system.
(3) For sewer overflows from
the combined sewer system with volumes 50,000
gallons or greater that
reach surface waters, the
Discharger shall submit
a technical report within
45 calendar days of the
end date for such overflows that further explains the causes and
circumstances, including
the method and data
used to calculate the volume, and lists response
actions completed and
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