Burbank v. State Water Resources 8/14/03 CA2/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B150912A

Case Date: 08/14/2003

Preview:Filed 8/14/03; opinion following rehearing

CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE CITY OF BURBANK, Plaintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Appellants. CITY OF LOS ANGELES, Plaintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Appellants. B151175, B152562 (Super. Ct. No. BS060957) B150912 (Los Angeles County Super. Ct. No. BS060960)

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts 6 and 7 of the Discussion.

APPEALS from judgments and orders of the Superior Court of Los Angeles County, Dzintra I. Janavs, Judge. Judgments reversed with directions; appeals from orders dismissed. Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Marilyn H. Levin and Gregory J. Newmark, Deputy Attorneys General, for Defendants and Appellants. Dennis A. Barlow, City Attorney, Carolyn A. Barnes, Senior Assistant City Attorney; Downey, Brand, Seymour & Rohwer, Melissa A. Thorme, Nicole E. BaderGranquist and Cassandra Ferrannini for Plaintiff and Appellant City of Burbank. Rockard J. Delgadillo, City Attorney, Christopher M. Westhoff, Assistant City Attorney; Downey, Brand, Seymour & Rohwer, Melissa A. Thorme, Jeffrey S. Galvin, Nicole E. Bader-Granquist and Cassandra Ferrannini for Plaintiff and Appellant City of Los Angeles. __________________________ In two separate actions, City of Burbank and City of Los Angeles challenged effluent limitations in wastewater discharge permits issued by California Regional Water Quality Control Board for the Los Angeles Region (Regional Board). The trial court set aside the permits and directed Regional Board to issue new permits in accordance with certain instructions. Regional Board and State Water Resources Control Board (State Board) (collectively Water Boards) appeal the judgments, contending that some of the instructions do not comply with the federal Clean Water Act or the state Porter-Cologne Water Quality Control Act. We conclude that effluent limitations in the permits must ensure compliance with state water quality standards, and that in establishing permit effluent limitations Regional 2

Board need not consider the economic burden imposed on the discharger or weigh the cost of compliance against the environmental benefits. We find that title 33 United States Code section 1311(b)(1)(C) did not sunset in 1977 and continues to be good law. We also conclude that some of the other requirements imposed by the trial court are erroneous. Burbank and Los Angeles appeal postjudgment orders denying their motions for attorney fees under Code of Civil Procedure section 1021.5. We dismiss the appeals as moot. In the interest of judicial economy and to guide the trial court on remand, however, we address the principal legal issue presented in the appeals. We conclude that a public entity can recover attorney fees under the statute only if the public entity's litigation costs are disproportionate to the public entity's interests at stake. FACTUAL AND PROCEDURAL BACKGROUND Burbank owns and operates a publicly owned treatment works called the Burbank Water Reclamation Plant, which treats wastewater from municipal sources. Some of the treated wastewater is discharged to the Burbank Western Wash, which drains into the Los Angeles River, a water of the United States. Los Angeles owns and operates a publicly owned treatment works called the Donald C. Tillman Water Reclamation Plant and jointly owns, together with City of Glendale, a publicly owned treatment works called the Los Angeles-Glendale Water Reclamation Plant. Both plants treat wastewater from municipal sources and discharge some of the treated wastewater into the Los Angeles River. Regional Board issued a permit in July 1998 governing wastewater discharge from the Burbank plant. The permit, designated Order 98-052 and NPDES Permit CA0055531, imposes numerical effluent limitations on the discharge of certain pollutants, in addition to other restrictions. Regional Board issued a separate Time Schedule Order in September 1998 allowing delayed compliance with certain effluent limitations and establishing interim limitations.

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Regional Board also issued permits in July 1998 governing wastewater discharge from the two Los Angeles plants. The permits, designated Orders 98-047 and 98-046 and NPDES Permits CA0056227 and CA0053953, impose numerical effluent limitations on the discharge of certain pollutants, in addition to other restrictions. Regional Board issued separate Time Schedule Orders in September 1998 allowing delayed compliance with certain effluent limitations and establishing interim limitations. Burbank and Los Angeles both appealed to State Board to review the permits and Time Schedule Orders. State Board declined review. Burbank filed a petition for writ of mandate in the superior court in December 1999 challenging certain permit provisions, and filed an amended petition in March 2000. Los Angeles filed a petition for writ of mandate in the superior court in December 1999 and filed an amended petition in January 2000. The superior court granted the petitions and entered judgments setting aside the permits and directing Regional Board to issue new permits in accordance with the court's statements of decision. The superior court stated in the statements of decision that in establishing effluent limitations for a permit, Regional Board must consider the economic cost of compliance with those limitations. The superior court stated further that the cost of compliance must be reasonable in light of the environmental benefit. The superior court concluded that in establishing effluent limitations, Regional Board must consider "potential environmental impacts, alternatives to the proposed requirements, and mitigation measures for any requirements adopted"; that the schedule of compliance must be part of the permit rather than a separate order; and that the narrative toxicity objective of Regional Board's water quality control plan provides insufficient information as to how Regional Board will regulate discharges based on the narrative criteria, and therefore violates a federal regulation (40 CFR

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