ELR Citation: ELR 20757
No(s). s. C92-4023 TEH, C93-0622 TEH (N.D. Cal. Dec 22, 1993)

The court holds that an oil company violated its interim national pollutant discharge elimination system (NPDES) permit by discharging selenium into the San Francisco Bay in excess of the permit's numeric limit. The state regional water quality control board issued the company an interim permit containing a numeric standard limiting selenium discharges to 5.8 pounds/day and a narrative standard stating that "these limits are intended to be a cap on current performance." The court holds that a violation of the permit's numeric standard for selenium constitutes a violation of the permit, even if the permittee complies with the narrative standard. The court holds that the board's interpretation of the narrative standard's purpose—to explain how the numerical standard was derived, rather than to modify the numerical standard—is reasonable, based on the permit's language and underlying purpose. In addition, that the permit expressly states that the interim numeric limits shall be "effective immediately" clearly supports the board's interpretation that the 5.8 pounds/day standard was intended to be enforceable immediately—not if and when the company changed its current operations. Moreover, the board's interpretation harmonizes the narrative and numeric standards. The court rejects the company's proffered defenses to liability because the Federal Water Pollution Control Act imposes strict liability for NPDES permit violations.

Counsel for Plaintiffs
Linda L. Hagerty, George D. Niespolo
Robins, Kaplan, Miller & Ciresi
444 Market St., Ste. 2700, San Francisco CA 94111
(415) 391-9799

David A. Nicholas, Charles C. Caldart
National Environmental Law Center
29 Temple Pl., Boston MA 02111
(617) 422-0880

Counsel for Defendant
John F. Barg, R. Christopher Locke
Landels, Ripley & Diamond
350 Steuart St., San Francisco CA 94105
(415) 788-5000