Unless Taken Up By the California Supreme Court, the Tesoro Case May Finally Conclude

In March of 2001, the State Water Resources Control Board Order No. WQ 2001-06 issued its final decision in the matter of the Tosco Rodeo and Ultramar Golden Eagle NPDES refinery permits. Downey Brand represented the Bay Area Dischargers Association (BADA, now known as the Bay Area Clean Water Agencies (BACWA)) in this matter before the State Water Resources Control Board . The case primarily involved the validity of interim permitting requirements before a Total Maximum Daily Load (TMDL) was adopted. In this case, the permit holder was given interim limits for dioxins and furans because the calculated final effluent limitations were not feasible. The State Water Board upheld the interim limits, but shortened the compliance schedule to ten years as provided for in the San Francisco Basin Plan.

On appeal by environmental groups, the trial court overturned part of the State Water Board's order related to the Tosco (then Ultramar, then Tesoro) permit. The trial court found that the permit was not lawful because it failed to contain numeric effluent limits. The trial court's Final Order was appealed by the State Water Board. Downey Brand represented BACWA as an amicus in that appeal.

The Superior Court's ruling was ultimately reversed in the Court of Appeal's decision at Communities for a Better Environment v. State Water Resources Control Board, 109 Cal.App.4th 1089 (May 2003). The Court of Appeal found that numeric effluent limitations are not required and upheld the permit and the State Water Board's order on this issue.

In subsequent proceedings, the environmental groups again asked the Superior Court to overturn the permit on issues related to antibacksliding and compliance schedules. The trial court ruled against the environmental challengers, and the groups appealed. On August 29, 2005, the Court of Appeal affirmed the trial court's decision in full holding that the compliance schedules provided were not unlawful and that the less stringent interim limit did not violate the Clean Water Act's rule against backsliding.

The environmental plaintiffs filed a petition for review with the Supreme Court on October 28, 2005, a decision on which is currently pending.

For more information on compliance schedules, interim limits and the application of the rules on antibacksliding, please contact Katharine Wagner, Melissa Thorme, Nicole Granquist, Missy Verhaag, and Jonathan Shardlow. Additional information concerning Downey Brand's Environmental Law Practice Group is available by clicking the link below.

Environmental Law Practice Description

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