The PEOPLE, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, Defendant and Appellant.
Defendant and appellant, General Motors Corporation (GM), appeals from a misdemeanor conviction for violating Fish and Game Code section 5650, subdivision (b). This statutory provision prohibits the discharge into state waters of “[a]ny refuse ․ from ․ any factory of any kind.” GM contends the discharge of wastewater from its closed loop cooling system did not violate its discharge permit issued in accordance with the National Pollutant Discharge Elimination System (NPDES) issued by the state and therefore cannot have violated state law.
The People cross-appeal from the judgment claiming the trial court erred in dismissing two additional misdemeanor counts for (1) discharging wastewater in violation of its NPDES permit (Water Code, § 13387, subd. (a)(4)) and (2) discharging into state waters a substance deleterious to fish, plant life or bird life (Fish & G.Code, § 5650, subd. (f)).
We conclude a valid permit for the discharge of wastewater issued in accordance with the NPDES program is not a shield to liability for a discharge made unlawful under the Fish and Game Code. We therefore affirm the misdemeanor conviction. Regarding the People's cross-appeal, we conclude the trial court did not err in dismissing the count alleging a violation of a NPDES permit. However, we conclude it was error for the trial court to dismiss the count alleging a violation under Fish and Game Code section 5650, subdivision (f) for discharging a substance deleterious to fish, plant life or bird life without allowing the prosecutor to present evidence of the potential deleterious effect of the substance discharged in this case.
FACTS AND PROCEEDINGS BELOW
General Background on NPDES Permits:
A brief review of state and federal water pollution control legislation is warranted for a better understanding of the issues raised in this appeal.
In 1949 the Legislature enacted the Dickey Water Pollution Act. (Stats.1949, ch. 1549, p. 2782, § 1.) Prior to the Dickey Act the Department of Public Health had primary responsibility for regulating water pollution in California through the issuance of permits for discharge of waste into state waters. The Dickey Act established regional water quality control boards for each of the nine major drainage basins of the state. The Dickey Act also created the State Water Pollution Control Board and authorized this board to formulate a statewide policy for control of water pollution. The regional water quality control boards were directed to prescribe effluent limitations on the quality of receiving waters to control conditions of existing and threatened pollution and nuisance. (Former, Water Code, §§ 13053, 13054; see 16 Ops. Cal. Atty. Gen. (1950) 203, 205.) Concurrent legislation authorized state and local health officers to issue peremptory orders for abatement of conditions of pollution, and to seek injunctive relief when necessary to enforce their orders. (Stats.1949, ch. 1550, p. 2789.) Later amendments shifted the focus from water pollution control to water quality planning, and improved coordination between the agencies responsible for overseeing the state's water quality. (Former, Water Code, §§ 13000, 13022.)
In 1968 the State Water Resources Control Board authorized a comprehensive review of California's water quality control laws. A study panel submitted its recommendations to the Legislature in 1969. (See 2 Manaster & Selmi, Cal. Environmental Law and Land Use Practice, § 31.06, p. 31–9–31–10.) The Legislature adopted almost all of the study's recommendations as the Porter–Cologne Water Quality Control Act. (Stats.1969, ch. 482; Water Code §§ 13000 et seq.; see Water Code § 13020 (short title of Division 7 of the Water Code)). The Porter–Cologne Act repealed the Dickey Act.
The Porter–Cologne Act took a more direct approach to ensure the quality of the state's waters. It expanded the definition of “contamination” and “hazards” to public health (Water Code, § 13050), and strengthened enforcement mechanisms. (See, e.g., Water Code, §§ 13267, 13271, 13300, 13301, 13304, 13340, 13350, 13361.)
In 1972 Congress enacted the Federal Water Pollution Control Act, commonly known as the “Clean Water Act.” The Clean Water Act allows states to operate the major programs under the Act and to enforce more stringent state standards if desired. (33 U.S.C. § 1370.) To ensure compliance with the provisions of the federal Clean Water Act, the Legislature added chapter 5.5 to the Porter–Cologne Act in 1972. (Water Code, §§ 13370–13389.) These statutes authorize the state and regional water boards to issue “waste discharge requirements”—defined to be the equivalent of federal NPDES permits—that meet all applicable requirements of the federal Act. (Water Code, § 13374.)
California's existing program was in many respects broader in scope than the federal NPDES program. For example, the Porter–Cologne Act regulates discharges to ground as well as surface waters (Water Code, § 13050, subd. (e)), and regulates discharges of wastes (Water Code, §§ 13260, 13263) in addition to pollutants (33 U.S.C. § 1342). California became the first state in the nation authorized to issue National Pollutant Discharge Elimination System (NPDES) permits. (2 Manaster & Selmi, Cal. Environmental Law and Land Use Practice, § 31.07, p. 31–13.)
Regulations issued by the State Water Board implement the NPDES program. State law requires both the procedures for issuing and administering NPDES permits for point source discharges to navigable waters of the United States, and the contents of those permits, be consistent with all applicable provisions of the Clean Water Act and its regulations. (23 Cal.Code Reg. §§ 2235.1 [“Each report of waste discharge related to discharges of pollutants from point sources to navigable water shall be filed and processed in compliance with the applicable federal regulations governing the NPDES permit program promulgated by EPA”], 2235.2 [“Waste discharge requirements for discharge from point sources to navigable waters shall be issued and administered in accordance with the currently applicable federal regulations for the National Pollution Discharge Elimination System (NPDES) program”].)
Any person discharging, or proposing to discharge, waste which could affect the quality of the waters of the state must file a report with a regional water board.1 (Water Code, § 13260, subd. (a)(1).) The reports of waste discharge require detailed information concerning the character, location and volume of the discharge. (Water Code, § 13260.) In the event a NPDES permit is authorized, the permit typically contains detailed conditions regarding the nature of the proposed or existing discharge, the requirements applicable to the disposal site or receiving waters, or both. (Ibid.) Critical portions of a NPDES permit include effluent limitations on “point sources,” 2 receiving water standards, monitoring requirements, and time schedules for implementation of standards and requirements. (Water Code, § 13263, subds. (a), (c).)
Factual Background Giving Rise to the Criminal Charges in This Case:
GM operated an automobile assembly plant in Van Nuys. In 1976, GM applied to the Regional Water Quality Control Board in Los Angeles for a permit to discharge wastewater generated by its industrial operations from the plant. A permit was granted after notice and input from approximately 15 federal, state and local governmental agencies. This permit was renewed in 1981 and again in 1988.
The 1988 permit was in effect at the time of the discharge at issue in this case. The permit authorized GM to discharge up to 84,500 gallons of wastewater per day to a specific outfall, or “point source,” at the southern boundary of the facility which leads to a concrete-lined storm drain. Approximately 2,000 feet away from GM's plant the storm drain connects with the concrete-lined Tujunga Wash which is a tributary of the Los Angeles River.3
The permit set effluent limitations on wastewater discharges respecting solids, oil, grease, turbidity and toxicity. The permit also prohibited wastewater discharges with a pH below 6 or above 9.
GM decided to close the Van Nuys plant. On January 27, 1993, while decommissioning the plant, GM employees released cooling water from two closed loop cooling systems in the chiller plant. One of the closed loop systems contained in excess of 1,500 gallons of a mixture of water and an anticorrosion and scale inhibitor marketed as Dearborn 547. Dearborn 547 is an alkaline substance (pH 11.5–12 in undiluted form) containing sodium hydroxide, sodium nitrate and sodium nitrite. Dearborn 547 also contains a red tracer dye. The other closed loop system discharged clear liquid.
The fluid from the two cooling towers drained to the concrete floor in the chiller plant and flowed into the storm drain system.
A local resident reported seeing a reddish colored liquid in the flood control channel. The Los Angeles Fire Department (LAFD), including a team of hazardous materials specialists, and a warden from the Department of Fish and Game responded to the GM plant.
The LAFD team took two samples of the reddish colored liquid containing Dearborn 547: one directly from the release valve at the cooling tank which registered a pH of 10.3, and another from the concrete floor directly beneath the valve which when tested revealed a pH of 10.4 The GM employees who had emptied the tanks told investigators they assumed incorrectly the liquids would flow to GM's pretreatment system and from there to the sewer system for additional treatment at the publicly owned treatment facility.
The investigator for the Department of Fish and Game surveyed the storm drain and Tujunga Wash. There he found a pocket of pinkish fluid. A field sample of the fluid registered a pH of between 8 and 9. GM cleaned up the substance from the storm drain and Wash.
Neither investigators for the LAFD nor the Fish and Game Department investigator took a sample of the discharge from the outfall identified in GM's permit as the point source for purposes of effluent limitations. Consequently, there was no evidence regarding the pH level of the wastewater at the location designated as the point source in GM's NPDES permit.
On July 14, 1993, the Los Angeles City Attorney filed a four-count amended misdemeanor complaint charging GM with (1) discharging cooling tower waste containing a corrosive and scale inhibitor in violation of its permit (Water Code, § 13387, subd. (a)(4)); (2) failing to report the discharge (Water Code, §§ 13387, subd. (a)(1), 13376); 5 (3) discharging “refuse” into state waters (Fish & G.Code, § 5650, subd. (b)); and (4) discharging a substance “deleterious to fish, plant life or bird life” (Fish & G.Code, § 5650, subd. (f)).
Due to the lack of evidence of the pH level at the point source, the prosecutor concluded he could not proceed on the theory the pH levels exceeded the limitations of the permit in order to prove the discharge was in violation of GM's NPDES permit. (See People v. Mobil Oil Corporation (1983) 143 Cal.App.3d 261, 276–277, 192 Cal.Rptr. 155 [agency bound by officially adopted method for testing].) Thus, the prosecutor instead claimed a violation of the permit from the presence of color in the wastewater which was not specifically authorized on the face of the permit, and which GM represented in its permit application was not reasonably expected to be present in its discharges from routine operations.6 In essence, the prosecutor's theory was the discharge of any substance not specifically authorized in the permit constituted a permit violation.
The trial court found the prosecution's theory contrary to the Environmental Protection Agency's interpretation of permit violations and contrary to decisional authority as well. Consequently, the trial court dismissed the count charging a violation of the permit made unlawful by Water Code section 13387, subdivision (a)(4) (count I).
The trial court also dismissed count IV which alleged the discharge was “deleterious to fish, plant life or bird life,” and therefore in violation of Fish and Game Code section 5650, subdivision (f). The warden from the Department of Fish and Game who investigated the discharge reported “the drain did not harbor any fish or aquatic invertebrate life” he could observe. The trial court found the charge “speculative” and “attenuated” because the evidence established the discharge went into a dry, concrete-lined storm drain and flood control channel where there were no fish, plant or bird life to be harmed. The trial court concluded that to charge a violation of Fish and Game Code section 5650, subdivision (f) there had to be some evidence plants, birds or fish were present at or near the point of discharge. The court therefore rejected the prosecution's offer of proof of expert testimony concerning the potential deleterious effect from the pH levels of the Dearborn 547 in the discharge found in the storm drain.
Dismissal of these counts left only the charge GM violated Fish and Game Code section 5650, subdivision (b) by discharging “refuse” into state waters. GM moved to dismiss this count, claiming it could not be criminally prosecuted by the state under the Fish and Game Code when its discharge of wastewater was in compliance with its permit issued by the state in accordance with the federal Clean Water Act and state Porter-Cologne Act. It argued, that because no violation of its permit had been shown, the permit should be a shield to criminal liability under the Fish and Game Code for a discharge otherwise authorized under its NPDES permit.
The trial court rejected GM's argument noting the Legislature only allowed discharges in compliance with a valid permit to be a shield against additional fines which could otherwise be imposed upon a misdemeanor conviction for a violation of Fish and Game Code section 5650. (Fish & G.Code, § 12011, subd. (b).) Accordingly, the trial court ruled compliance with a permit was no defense to a charge of discharging refuse into state waters in violation of Fish and Game Code section 5650, subdivision (b).
Prior to jury selection the parties agreed to a bench trial based on the above stipulated facts. The trial court found GM guilty of discharging refuse into state waters (Fish & G.Code, § 5650, subd. (b).) The trial court imposed the maximum fine of $2,000 (Fish & G.Code, § 12002, subd. (b)) and additional penalties of $4,194.80 representing the LAFD's and the Department of Fish and Game's investigative costs.
GM appealed its conviction to the Appellate Department of the Superior Court. The People cross-appealed from the judgment to challenge the trial court's ruling dismissing the two additional counts. The Appellate Department affirmed the judgment in its entirety. We ordered the entire cause transferred to this court, finding the transfer necessary in order to settle an important question of law. (Cal. Rules of Court, rule 62(a).)
I. BECAUSE THE DISCHARGE IN THIS CASE DOES NOT CONSTITUTE A VIOLATION OF THE PERMIT UNDER FEDERAL LAW, IT CANNOT CONSTITUTE A VIOLATION OF THE PERMIT UNDER WATER CODE SECTION 13387, SUBDIVISION (a)(4).
Count I of the complaint charged GM with violating its NPDES permit under the federal Clean Water Act, and state Porter–Cologne Act by negligently discharging cooling tower wastewater containing a corrosion and scale inhibitor into navigable water of the United States. (Water Code, § 13387, subd. (a)(4).) Water Code section 13387, subdivision (a)(4) provides:
“(a) Any person who intentionally or negligently does any of the following is subject to criminal penalties․
“(4) Violates any requirement of Section 301 [33 U.S.C. § 1311],.. of the Federal Water Pollution Control Act, as amended.” (Fn. omitted.)
Section 301 of the federal Water Pollution Control Act, or “Clean Water Act,” is codified as section 1311 of title 33 of the United States Code. This section prohibits the discharge of any pollutant except with a valid NPDES permit issued in accordance with the Clean Water Act. (E.I. du Pont de Nemours and Co. v. Train (1977) 430 U.S. 112, 118–119, 97 S.Ct. 965, 970–971, 51 L.Ed.2d 204.)
Because Water Code section 13387, subdivision (a)(4), incorporates by reference the federal Clean Water Act, to prove a violation of Water Code section 13387, subdivision (a)(4) the prosecutor had to prove GM violated its NPDES permit according to federal law interpreting the Clean Water Act. Under federal law, with a few enumerated exceptions not relevant to this case, compliance with a NPDES permit means “compliance with the conditions of the permit during its term.” (33 U.S.C. § 1342, subd. (k) [“shield” provision]; see also 40 C.F.R. §§ 122.5 [effect of a permit], 122.64 [causes for termination of a permit].)
On appeal the People claim this means the discharge of any pollutant not specifically authorized in the permit constitutes noncompliance with a NPDES permit. Specifically, the People argue the discharge of color in this case constitutes a violation of the permit because color was not specifically authorized on the face of the permit and because GM in its application represented color was not reasonably expected to be present in any discharge of wastewater. This absolutist interpretation was initially proposed, and later expressly rejected by the federal Environmental Protection Agency (EPA) responsible for promulgating regulations to implement and enforce the Clean Water Act.
In 1978, the EPA proposed a regulation applicable to all permits which would limit the discharge of pollutants to those listed in the application. In its proposed regulation the EPA stated “under this section a permittee would be limited to the pollutant discharge levels reported in its application where the pollutant is not otherwise limited in the permit. A permittee would be prohibited from discharging any pollutant for which information was requested in the application if, in response, no discharge was detected or no information was reported. While this requirement may pose technical and economic difficulties in some instances, past uncertainties concerning the scope of the permit's authorization to discharge require such a clarification․” (43 Fed.Reg. 37078, 37079 (Aug. 21, 1978) [proposed 40 C.F.R. § 122.14].)
In 1979 the EPA reconsidered its proposed “application based” effluent limitations for permittees. It next proposed a rule which would set limits for certain pollutants listed in the application. For those pollutants reported, or required to be reported in the permit application, but not listed in the permit, the EPA proposed a limit which would be a multiple of the reported average level of the pollutant. (44 Fed.Reg. at p. 34404 (June 14, 1979).)
In response to numerous comments to the proposed rule, the EPA rejected the proposed “application based” limits approach to regulating discharges. In its stead the EPA adopted an approach whereby dischargers would be required to notify the permitting authority of discharges of pollutants at levels higher than otherwise listed in the permit, and of any other changes which would cause the discharger to expect discharges of higher levels of pollutants or different pollutants. In discussing the change the EPA stated: “All non-‘significant’ pollutants (i.e., those considered not likely to be discharged above BAT [best available technology] levels based upon the levels reported in the application or upon expected use or manufacture at the facility) need not be specifically controlled in the permit (although the permit writer retains authority to do so under § 125.3). This will allow permitting authorities to focus their resources on significant discharges of toxic pollutants. To prevent future significant discharges of non-limited pollutants, two regulatory requirements have been established: [notification of new or increased discharges of pollutants and modification of a permit to control increased or different discharges of pollutants].” (45 Fed.Reg. at p. 33521 (May 19, 1980).)
In its attempt to balance competing concerns of control and elimination of pollutants against the potentially prohibitive costs for testing and enforcement of de minimis amounts of pollutants, the EPA recognized the notification approach, while satisfactory, nevertheless left a regulatory loophole. “EPA recognizes that the revised approach falls short of the proposal in some respects. There is still some possibility (though less likely as the result of § 122.62(e) [reporting] ) that a permittee may discharge a large amount of a pollutant not limited in its permit, and EPA will not be able to take enforcement action against the permittee as long as the permittee complies with the notification requirements of § 122.61(a). Although EPA will now have authority under § 122.15(a)(5)(viii)-(x) to modify (or revoke and reissue) the permit to require control of the pollutant, permit modification can be a lengthy process.” (45 Fed.Reg. at p. 33523 (May 19, 1980).)
In 1984 the EPA explained the adopted notification approach as follows: “The threshold levels in the proposal was seen as a compromise between industry's desire for a level that would eliminate testing for pollutant discharges in extremely small amounts and concentrations and EPA's need to have sufficient data to identify the presence of pollutants which should be controlled through permit limitations. This is particularly important because in accordance with section 402(k) of the CWA [shield provision], a permittee is deemed to be in compliance with the CWA if he meets the requirements and limitations of his permit. Thus, pollutants not prohibited or limited by the permit can be discharged unless and until the permit is modified. ․” (49 Fed.Reg. 37998, 38002 (Sept. 26, 1984), italics added.) 7
Thus, under the EPA's interpretation of its regulations implementing the provisions of the Clean Water Act, a discharge of a pollutant not specifically listed on the face of a permit does not constitute a violation of the permit, provided the discharge is promptly reported to the permitting authority. “This view of the agency charged with administering the statute is entitled to considerable deference; and to sustain it, we need not find that it is the only permissible construction that EPA might have adopted but only that EPA's understanding of this very ‘complex statute’ is a sufficiently rational one to preclude a court from substituting its judgment for that of EPA. [Citations.].” (Chemical Manufacturers Assoc. v. Natural Resources Defense Council, Inc. (1985) 470 U.S. 116, 125, 105 S.Ct. 1102, 1107, 84 L.Ed.2d 90; see also E.I. du Pont de Nemours and Co. v. Train, supra, 430 U.S. 112, 134, 97 S.Ct. 965, 978, 51 L.Ed.2d 204.)
Federal decisional authority also supports the conclusion a discharge of pollutants not specifically limited in a NPDES permit will not constitute a violation of the permit, provided the discharger reports the discharge to the permitting agency. In Atlantic States Legal Foundation, Inc. v. Eastman Kodak Company (2d Cir.1994) 12 F.3d 353 the plaintiffs brought a citizens' suit to stop the discharge of pollutants not listed in Kodak's NPDES permit. Kodak had provided information concerning estimated discharges of 164 different substances from each of its outfalls in its application. The state agency subsequently issued Kodak a permit specifying effluent limitations for 25 pollutants and specifying special action levels for others. The permit also required Kodak to conduct semi-annual tests of discharges and to report the results of those tests to the authorities. (12 F.3d at p. 355.)
The plaintiffs' suit alleged Kodak had exceeded the effluent limitations imposed by its permit and had discharged pollutants for which it had no discharge authorization. (12 F.3d at p. 355.) Some of the offending pollutants had been listed in Kodak's permit application while others came to light from Kodak's periodic reports of tests. The plaintiffs argued, as do the People in this case, section 301 of the Clean Water Act (33 U.S.C. § 1311) absolutely prohibited the discharge of any pollutant not specifically authorized in a valid NPDES permit. (12 F.3d at p. 356.)
The Second Circuit rejected this argument. Relying on the EPA's understanding of what constitutes compliance with a valid NPDES permit as discussed above, the court held Kodak was protected from liability because it had reported the additional discharges to the permitting authority. “Section 402(k) contains the so-called ‘shield provision,’ 33 U.S.C. § 1342(k), which defines compliance with a NPDES ․ permit as compliance with Section 301 for the purposes of the CWA's enforcement provisions. The Supreme Court has noted that ‘The purpose of [Section 402(k) ] seems to be ․ to relieve [permit holders] of having to litigate in an enforcement action the question whether their permits are sufficiently strict.’ ” E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 138, n. 28, 97 S.Ct. 965, 980, n. 28, 51 L.Ed.2d 204 (1977).
“Atlantic States' view of the regulatory framework stands that scheme on its head. Atlantic States treats permits as establishing limited permission for the discharge of identified pollutants and a prohibition on the discharge of unidentified pollutants. Viewing the regulatory scheme as a whole, however, it is clear that the permit is intended to identify and limit the most harmful pollutants while leaving the control of the vast number of other pollutants to disclosure requirements. Once within the NPDES ․ scheme, therefore, polluters may discharge pollutants not specifically listed in their permits so long as they comply with the appropriate reporting requirements and abide by any new limitations when imposed on such pollutants.” (12 F.3d at p. 357.)
Accordingly, the People's narrow view of what constitutes compliance with a valid NPDES permit is neither supported by decisional authority nor the EPA's rules for enforcing the provisions of the Clean Water Act. We therefore conclude the trial court did not err in dismissing the count alleging GM had violated its permit where the undisputed evidence established GM promptly reported the discharge to the permitting authority in compliance with Water Code section 13387, subdivision (a)(4) and the Clean Water Act.
II. THE CONVICTION OF FISH AND GAME CODE SECTION 5650, SUBDIVISION (b) FOR DISCHARGING REFUSE INTO STATE WATERS IS VALID.
The trial court found GM guilty of a misdemeanor violation of Fish and Game Code section 5650, subdivision (b).8 This provision specifies:
“It is unlawful to deposit in, permit to pass into, or place where it can pass into the waters of this State any of the following:
“(b) Any refuse, liquid or solid, from any refinery, gas house, tannery, distillery, chemical works, mill or factory of any kind․” 9
GM concedes this statutory provision is a blanket prohibition against the discharge of any type of refuse into state waters. However, GM argues this interpretation of the statute must fail because it contradicts the Clean Water Act and Porter–Cologne Act. GM points out these Acts' comprehensive systems of reducing pollution in the nation's waters through the NPDES program allows permittees to discharge refuse, and otherwise make lawful that which section 5650, subdivision (b) declares to be unlawful.
GM suggests several methods to reconcile the apparent conflict between the statutory provisions. GM argues the later enacted Clean Water Act and Porter–Cologne Act regulating water quality should control the earlier statute concerning essentially the same subject matter. (See, e.g., Woodard v. Southern Cal. Permanente Medical Group (1985) 171 Cal.App.3d 656, 664, 217 Cal.Rptr. 514 [“If there is an irreconcilable conflict between the new provision and the prior statutes, the new provision will control as it is the later expression of the legislature.”].) In addition, GM argues, under accepted canons of statutory construction, where a conflict exists between statutory provisions, the more specific statute should control over the more general one. (See, e.g., Woods v. Young (1991) 53 Cal.3d 315, 324, 279 Cal.Rptr. 613, 807 P.2d 455 [appropriate rule of construction where statutes are interrelated and deal with same subject matter]; 2B Sutherland, Statutory Construction (Singer 5th ed.1992) § 51.02, pp. 121–122.)
GM's arguments cannot be sustained. GM's position assumes section 5650 and the NPDES program of the Clean Water and Porter–Cologne Acts concern the identical subject matter. However, these legislative enactments are not part of the same statutory scheme. While they both may be concerned with water purity, the focus and purpose of these legislative provisions are separate and distinct. The Fish and Game Code section is designed to reach individual as well as corporate conduct, and its purpose is to protect the state's wildlife by preventing and eliminating pollution in the state's waters. The Acts, on the other hand, tend to target corporate polluters and are designed to protect the nation's waters for a wide variety of beneficial purposes, only one of which is the protection of wildlife. Because the two statutory schemes are not in pari materia, there is no need for harmonization. (See People v. Chevron Chemical Co. (1983) 143 Cal.App.3d 50, 56, 191 Cal.Rptr. 537 [holding Water Code section 13350 requiring proof of negligence for a criminal conviction was part of a different statutory scheme than section 5650 and therefore a conviction under section 5650, as a public welfare offense, required no proof of intent].)
GM's argument also assumes the two provisions are irreconcilable and therefore require an interpretation to harmonize the apparent conflicts. Again GM is mistaken. As noted in section I, supra, the purpose of a NPDES permit is not to regulate or eliminate all pollutants potentially in a permittee's discharge. Instead a permit sets maximum effluent limits on the more toxic or hazardous substances. For this reason and others, the Clean Water and the Porter–Cologne Acts expressly authorize more strict enforcement of pollutants through other state laws. For example, under the Clean Water Act, 40 Code of Federal Regulations section 122.5(c) points out compliance with a valid NPDES permit does not relieve the permit holder from responsibility for complying with all state laws. “The issuance of a [NPDES] permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of State or local law or regulations.” (40 C.F.R. § 122.5(c).) Similarly Water Code section 13002 makes clear a holder of a valid permit may still be subject to liability under other state laws regulating nuisance or water pollution. As it pertains to this case, Water Code section 13002 provides: “No provision of this division or any ruling of the state board or a regional board is a limitation: [¶] ․ [¶] (d) On the power of a state agency in the enforcement or administration of any provision of law which it is specifically permitted or required to enforce or administer.” This section constitutes a clear expression of legislative intent to allow enforcement actions to control pollution under other provisions of state law. (Compare, Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250, 265 Cal.Rptr. 144, 783 P.2d 731 [prohibiting criminal prosecution under general statute imposing greater punishment where Legislature enacted more specific statute covering same conduct prescribing less severe penalty].)
Thus in People v. Union Oil Co. (1968) 268 Cal.App.2d 566, 74 Cal.Rptr. 78, the court rejected Union Oil's argument a criminal prosecution under section 5650 was precluded by enactment of the Dickey Act providing for civil penalties for discharges of pollutants in violation of a permit. The court noted the Legislature made no changes to the Fish and Game Code when it adopted the Dickey Act. The court concluded “[t]his pattern indicates that the civil proceedings against violators under the Dickey Act were intended to supplement, not supplant, criminal proceedings under [Fish and Game Code section 5650].” (268 Cal.App.2d at p. 570, 74 Cal.Rptr. 78.)
In 1959 the Attorney General interpreted a provision similar to Water Code section 13002 in the predecessor Dickey Act in deciding whether the Department of Fish and Game had the authority to criminally prosecute a discharger who held a valid permit issued by the regional water pollution control board. The Attorney General opined such a prosecution was authorized because “․ compliance with requirements under the Dickey Act does not exempt the discharger from compliance with any other law which may be applicable.” (33 Ops Cal. Atty. Gen. (1950) 77, 81 [citing 32 Ops Cal. Atty. Gen. 139, 142].) The Attorney General further opined “[n]either the state board nor any regional board acting under the Dickey Act may establish requirements licensing or permitting discharges from a continuous and chronic source that are contrary to the prohibitions contained in section 5650. If a board does so, it acts outside its authority. Imposition of requirements by the board does not immunize the discharger from other legal restraints on his disposal activities, including section 5650 of the Fish and Game Code․” (33 Ops Cal. Atty. Gen. at p. 81.) The opinion concluded the Department of Fish and Game is authorized to enforce section 5650 by criminal prosecution “․ where discharge requirements have been established by the regional board [NPDES permit], regardless of whether or not those requirements prohibit the discharger from committing the acts made unlawful by section 5650.” (Id. at p. 82)
Consequently, section 5650, subdivision (b) is not irreconcilable with the Clean Water Act nor the Porter–Cologne Act, both of which expressly envision additional enforcement measures to ensure the quality of the nation's waters.
Subsequent actions by the Legislature support the view the Clean Water Act and Porter–Cologne Act were not intended to supplant the enforcement provisions of section 5650. In 1991, the Legislature enacted section 12011 to provide for additional fines for violations of section 5650. In addition to other penalties, section 12011 imposes a fine of $10 for each gallon of substance released into state waters, as well as for costs incurred by any agency required to clean up the discharge. However, subdivision (b) of section 12011 exempts from these additional fines (but not from existing fines) “discharges in compliance” with a NPDES or other state discharge permit. (§ 12011, subd. (b).)
It is significant the Legislature expressly allowed a NPDES permit to be used as a shield against the imposition of additional fines upon conviction of a violation of section 5650, but did not authorize its use as a shield against criminal prosecutions in the first instance. There would be no need for the exemption from additional fines if the Legislature intended discharges in compliance with a valid NPDES permit could not violate section 5650. In other words subdivision (b) of section 12011 would be mere surplusage if compliance with a valid NPDES permit automatically shielded its holder from prosecution for a violation of section 5650.
We also reject GM's suggestion the so-called “rule of lenity” should be applied in the case at bar. The “rule of lenity” provides “ambiguity concerning the ambit of criminal statutes should be resolved in the favor of lenity” toward the defendant. (Rewis v. United States (1971) 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493; United States v. LeCoe (9th Cir.1991) 936 F.2d 398, 402.) GM identifies no ambiguity in the statutory language. Nor do we find the language of section 5650, subdivision (b) reasonably susceptible of different constructions. (Compare, People v. Davis (1985) 166 Cal.App.3d 760, 766, 212 Cal.Rptr. 673 [“when a penal statute is reasonably susceptible of two constructions, that more favorable to the defendant should be adopted.”].) As GM acknowledges, the plain language of this subdivision expressly prohibits the discharge of any refuse from any factory into state waters.
Similarly, there is nothing vague in the statutory language prohibiting the discharge of “any refuse.” This all encompassing term gives ample notice to would-be dischargers placing any alien substance into state waters is expressly prohibited and subjects the discharger to prosecution. (See, e.g., People v. Sangani (1994) 22 Cal.App.4th 1120, 1143, 28 Cal.Rptr.2d 158.) Indeed, GM does not make an argument the term “refuse” is too vague or ambiguous to be the subject of a criminal prosecution. It acknowledges the “refuse” referred to in section 5650, subdivision (b) as it applies to GM means the discharge of wastewater. Instead, GM contends dischargers holding valid NPDES permits are subjected to conflicting demands of a total prohibition on the discharge of refuse under section 5650, subdivision (b) and the authorization of the same discharge of wastewater pursuant to a valid NPDES permit under the Porter–Cologne Act. (See, e.g., United States v. Cardiff (1952) 344 U.S. 174, 176, 73 S.Ct. 189, 190, 97 L.Ed. 200 [conviction under statute making refusal to permit entry a crime violated due process because another statute gave the right to withhold consent to enter].)
This brings us to GM's final attack on the misdemeanor conviction. The vagueness GM complains of is the lack of standards for bringing a criminal prosecution in the first place. It points out section 5650, subdivision (b) expressly prohibits that which it is legally permitted to do under a valid NPDES permit issued by the same state bringing the criminal prosecution. It claims if a discharger who holds a valid NPDES permit can be criminally prosecuted for an act which does not violate the permit, the discharger is at the mercy of state agencies which may selectively, or arbitrarily, prosecute for a discharge otherwise lawful under a NPDES permit.10 GM claims if the discharge of “refuse” or “wastewater” is prohibited under section 5650, subdivision (b), then “permit holders commit criminal acts every day, all day, and those permits issued by the State are merely a license to commit a crime against the State.” 11
Implicit in this argument is a claim the discharge of color containing sodium hydroxide, sodium nitrate and sodium nitrite was part of its wastewater as a result of routine operations at the plant. As noted, the whole purpose and thrust of the Clean Water Act, the Porter–Cologne Act and NPDES permits is to regulate ongoing discharges from routine industrial operations. Indeed, this case might have been in a different posture had anything about the discharge been routine and ordinary or concerned the usual wastewater generated by ongoing operations and therefore otherwise governed by a NPDES permit. The stipulated facts, however, establish the discharge of Dearborn 547 was not part of GM's routine discharge of wastewater. The discharge occurred after operations had ceased at the plant. It was a one-time, extraordinary event. According to the evidence submitted to the trial court, GM employees discharged the colored wastewater into the storm drain, believing the colored substance would drain to the pretreatment facility. Thus, it appears the discharge occurred as a result of GM's negligence or inadvertence, and not because GM reasonably relied on the government's apparent 20–year nonenforcement of section 5650, subdivision (b) against dischargers holding valid NPDES permits.12
Under these circumstances, the criminal prosecution brought in this case appears anything but random, arbitrary or erratic. (Cf., Papachristou v. Jacksonville (1972) 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 [a criminal statute which is so indefinite it encourages arbitrary, and erratic arrests and convictions violates due process].) On the contrary, it is the very type of situation where enforcement of water quality standards through other state laws is necessary to protect the state's waters.
In sum, we discern no compelling reason to disturb the conviction in this case.
III. THE TRIAL COURT ERRED IN DISMISSING THE COUNT ALLEGING A VIOLATION OF FISH AND GAME CODE SECTION 5650, SUBDIVISION (f) WITHOUT ALLOWING THE PEOPLE TO PRESENT EVIDENCE THE SUBSTANCE IN GM'S DISCHARGE WAS DELETERIOUS TO FISH, PLANT LIFE OR BIRD LIFE.
Count IV of the complaint charged GM with a violation of section 5650, subdivision (f) for discharging “[a]ny substance or material deleterious to fish, plant life, or bird life.” The trial court dismissed this charge as “too speculative” and “attenuated.” It concluded this subdivision of section 5650 was inapplicable because the discharge went into a concrete-lined storm drain in an area where no fish were present.
The People argue neither the fact the channel was concrete nor the absence of life to be immediately harmed is a sufficient reason to justify dismissal of the charge. We agree.
Section 5650 makes it unlawful “to deposit in, permit to pass into, or place where it can pass into the waters of this State ․ [¶] (f) [a]ny substance or material deleterious to fish, plant life, or bird life.” A violation of this subdivision requires proof of two elements: (1) evidence a substance was placed where it can pass into the waters of the state and (2) evidence the substance is deleterious to fish, plant life or bird life.
The phrase “waters of this State” is defined as “any surface water or groundwater, including saline waters, within the boundaries of the state.” (Water Code, § 13050, subd. (e).) This broad definition has been further clarified to mean all waters, whether public or private, and whether or not carried by constructed artificial channels or natural river channels. (48 Ops. Cal. Atty. Gen. (1966) 23, 35 [constructed irrigation system is part of state waters].) In this case the parties agree the concrete lined-storm drain leading to the Tujunga Wash, which in turn leads to the Los Angeles River and Pacific Ocean, is a water of this state.
With regard to the first element of section 5650, subdivision (f) it is clear the trial court's conclusion cannot be sustained. The plain and similarly broad language of the statute prohibits the placing of substances in a location where there is a risk it will pass into state waters. The statute does not distinguish between flooded or dry water channels, nor between remote tributaries of state waters and bodies of waters. Section 5650 only requires the substance be placed where “it can pass into the waters of this State.” Here, the evidence established GM emptied cooling tower fluid into the storm drain. The storm drain is a place from which substances can pass into state waters. The fact there was very little water in the storm drain at the time of the discharge, or the fact it was lined with concrete has no bearing on this conclusion. The statute only requires the substance be placed where it can pass into state waters.
That brings us to the question whether the substance is deleterious to fish, plant life or bird life. Here the trial court concluded there was no evidence GM's wastewater containing Dearborn 547 was “deleterious” because there was no evidence fish, birds or plant life were in the storm drain at the time of the discharge. However, section 5650, subdivision (f) does not require the substance cause harm in fact. As the court noted in People v. Chevron Chemical Co., supra, 143 Cal.App.3d 50, 191 Cal.Rptr. 537, the purpose of section 5650 is “․ the prevention of adverse impacts upon California's fish, plant life or bird life through water pollution․” (143 Cal.App.3d at p. 54, 191 Cal.Rptr. 537, italics added.)
The conclusion section 5650, subdivision (f) does not require actual harm is consistent with other courts' interpretation of “deleterious” substances. For example, in People v. Guntert (1981) 179 Cal.Rptr. 426, 126 Cal.App.3d Supp. 1, the defendant operated a placer gold mine. He was prosecuted under section 5650, subdivision (f) for discharging large amounts of sand and gravel into the American River. The defendant was convicted, but the appellate department of the superior court reversed due to instructional, evidentiary and other errors.
The court disapproved an instruction which erroneously told the jury a deleterious substance is “something noxious or pernicious, that will kill, destroy or cause severe injury to fish, birds or plants” and is not deleterious “if it is not destructive ․ to such a degree that the fish, birds or plants can no longer continue to inhabit the stream in their previous numbers and location.” The court explained, “[t]he instruction is also bad because, to the extent that its meaning may be grasped, the instruction appears to require that a substance cause a permanent annihilation or displacement of fish or wildlife before the substance may be considered deleterious. We find no support for this position in California law. To the contrary, our courts have upheld injunctions against conduct deleterious to the health of human beings without requiring that the complainants either die or move away. [Citations.]” (126 Cal.App.3d Supp. at p. 7, 179 Cal.Rptr. 426, italics in original.)
In State v. Wheatley (Appeals 1921) 20 Okla.Crim. 28, 200 Pac. 1004, the Oklahoma Court of Criminal Appeals interpreted a similar statute aimed at protecting fish and wildlife in the state's waters. The Oklahoma statute stated: “No person shall deposit, place, throw, or permit to be deposited, placed or thrown, any lime, dynamite, poison, drug, sawdust, crude oil or other deleterious substance, in any of the streams, lakes or ponds of this state․” The court construed this statutory language to mean any waters of the state, including those where fish were not present. “It is our opinion, therefore, that it is clearly cognate to the subject of fish and game, and encouraging the breeding of the same, to keep the waters of this state free from deleterious substances, and this is equally true whether such waters be inhabited by fish at the time said substances are placed therein or not. ․ It is evident that the breeding of fish in this state would be greatly curtailed were not the streams thereof kept free from deleterious substances․ In the course of time, were poisonous and deleterious substances permitted to be deposited in the streams of this state, fish and fur-bearing animals inhabiting such waters would become extinct.” (200 Pac. at p. 1007, italics added.)
A review of the statutory language, cases interpreting that language and similar statutes convinces us a substance need not cause actual harm to fish, birds or plant life to be “deleterious” for purposes of a conviction of section 5650, subdivision (f). It is sufficient if the substance is of the type that would have caused harm had wildlife been present at the time of the discharge, or that could cause harm to wildlife downstream.
Whether GM's wastewater discharge containing Dearborn 547 was a substance “deleterious” to fish, birds or plant life would have been a proper subject for expert testimony. Here the only evidence regarding the substance's deleteriousness was evidence a pool of the substance found in the Tujunga Wash had a pH level of between 8 and 9. There is no evidence to establish whether or not a substance with a pH level of between 8 and 9 has a harmful effect on fish, plant or bird life. The People offered to present expert testimony from a biologist on the effect on fish, birds and plants of substances with this pH level.13
Having ruled as a matter of law the absence of fish, birds or plant life in the concrete storm drain precluded a conviction on this count, the trial court concluded such expert testimony was unnecessary. This was error. The People should have been allowed to present evidence on the deleterious effect, if any, of the substance actually found in the flood control channel in order to prove the second element of the offense. However, the trial court dismissed the count without allowing the prosecutor to present available evidence to prove this count in the mistaken belief a conviction was precluded as a matter of law. (Compare, Pen.Code, § 1118 [on motion of the defense, trial court shall order entry of judgment of acquittal after the prosecution's case-in-chief if the court, upon weighing the evidence, finds the defendant not guilty of such offense].) Accordingly, we reverse the dismissal of count IV alleging a violation of section 5650, subdivision (f).
The conviction for violation of Fish and Game Code section 5650, subdivision (b) is affirmed. The trial court's order dismissing count I alleging a violation of Water Code section 13387, subdivision (a)(4) is affirmed. The trial court's order dismissing count IV alleging a violation of Fish and Game Code section 5650, subdivision (f) is reversed and the cause remanded for further proceedings consistent with this opinion.
1. In an early opinion, the Attorney General construed the phrase “waters of the state” to include all waters within the boundaries of the state, whether private or public, in natural or artificial channels. (48 Ops. Cal. Atty. Gen. (1966) 30, 34–35 [constructed irrigation channels are waters of the state].)
2. A “point source” is “any discernible, confined and discrete conveyance ․ from which pollutants are or may be discharged․” (33 U.S.C. § 1362, subd. (14).)
3. Finding three of GM's NPDES permit specified the precise location for authorized discharges of wastewater. Finding three also specified the sources for GM's wastewater and the state waters into which discharges of the wastewater were authorized. Finding three of GM's 1988 permit provided:“General Motors Corporation operates GMC C–P–C Group Van Nuys Plant, located at 8000 Van Nuys Boulevard, Van Nuys, California, and discharges up to 84,500 gallons per day (gpd) of wastewater consisting of audit test water, chiller plant, cooling tower bleedoff, boiler blowdown, car wash water, cooling water from paint booth humidifiers, single pass dynamometer cooling water, fire protection system test water, slight amounts of overspray water from the high pressure water spray carrier cleaning operation on the roof and storm runoff which may pick up pollutants to a storm drain at the southern boundary of the facility (Latitude 34° > > >>>>>>>>> 12′ 30″, Longitude 118° 26′ 30″). The wastes flow to Tujunga Wash at a point about 2,000 feet upstream from Sherman Way. Tujunga Wash is [a] tributary to [the] Los Angeles River, a water of the United States, at a point about 1,300 feet upstream from Colfax Avenue above the tidal prism.”
4. A pH of 10.3 is considerably less alkaline than the “hazardous waste” threshold of 12.5. (See, 26 Cal.Code Regs. §§ 22–66261.20, 66261.22(a)(1).)
5. The prosecution later dropped this count because GM had in fact fulfilled its various reporting obligations.
6. “Color” is listed as a pollutant under 40 Code of Federal Regulations, Part 122 Appendix D, Table IV.
7. The notification requirements for ongoing discharges, or expected discharges, of pollutants which are not authorized in the permit and exceed certain limits are currently set forth in 40 Code of Federal Regulations section 122.42(a). (Formerly § 122.61(a).)
8. All further statutory references are to the Fish and Game Code unless otherwise noted.
9. The full text of section 5650 is as follows:“It is unlawful to deposit in, permit to pass into, or place where it can pass into the waters of this State any of the following:“(a) Any petroleum, acid, coal or oil tar, lampblack, aniline, asphalt, bitumen, or residuary product of petroleum, or carbonaceous material or substance.“(b) Any refuse, liquid or solid, from any refinery, gas house, tannery, distillery, chemical works, mill or factory of any kind.“(c) Any sawdust, shavings, slabs, edgings.“(d) Any factory refuse, lime, or slag.“(e) Any cocculus indicus.“(f) Any substance or material deleterious to fish, plant life, or bird life.”This section was derived from former Penal Code section 635. (Stats.1875–1876, ch. 457, § 2, p. 115.) This section stated: “Every person who places, or allows to pass into any waters of this State, any lime, gas, tar, cocculus indicus, or any other substance deleterious to fish, is guilty of a misdemeanor.”The 1889 amendment added sawdust to the list of proscribed substances. The 1895 amendment enlarged the list of proscribed discharges to include “shavings, slab edgings, mill or factory refuse.” (Italics added.) In 1897, the Legislature prohibited the use of explosives in state waters for the purpose of killing or taking fish. In 1901 “slag” was added to the list of proscribed substances. The 1903 amendment required that fines collected be deposited in a “fish commission fund.” In 1915 the list of proscribed substances was again increased to include “petroleum, acid, coal or oil tar, lamp black, analine, asphalt, bitumen, or residuary product of petroleum or carbonaceous material, or substance, or any refuse, liquid or solid from any oil refinery, gas house, tannery, distillery, chemical works, mill or factory of any kind,” and also prohibited discharges or deposits which were deleterious to plant life as well as fish life. (Italics added.) In 1921 materials deleterious to bird life were also proscribed. The 1927 amendment made no substantive change.Section 5650 remains essentially unchanged from the 1927 version.
10. In the trial court GM also asserted the defenses of entrapment and estoppel against the state. GM does not raise these issues on appeal and we express no opinion on the relative merits of these defenses.
11. GM urges this court to interpret section 5650, subdivision (b) as applying only to discharges without a NPDES permit or in violation of one. Were we to do so we would accomplish by judicial fiat that which the Legislature has declined to do.
12. On appeal GM disclaims any evidence or finding of negligence. It claims the release of the fluid from the cooling towers into the storm drain was not an accident but was expressly authorized by the permit. This argument is questionable at best. Finding number three of GM's NPDES permit authorized discharges from the chiller plant cooling towers. However, the permit specifies “bleedoff” from the cooling towers which does not necessarily contemplate discharge of the entire contents of these towers including Dearborn 547 as well as water. (See, footnote 3, supra.)
13. In his offer of proof the prosecutor stated a “substance can be deleterious simply by its P.H. value, your Honor. There will be testimony by a biologist indicating that when you have a P.H. in excess of nine it poses a risk to fish, plant, and bird life.” Because the prosecutor mentioned a pH level in excess of nine, GM argues the trial court's ruling can be sustained on the basis there was no evidence the wastewater in the storm drain had a pH in excess of nine. As noted, tests of the substance in the Tujunga Wash had a pH of between 8 and 9. We do not find this discrepancy significant. Had the expert been allowed to testify, the expert likely would have testified to the deleterious effect, if any, of a lesser pH as well. More significantly, however, the trial court's ruling was not based on the deleterious nature of the substance but rather on the absence of evidence of fish, plants or birds in the storm drain.
JOHNSON, Associate Justice.
LILLIE, P.J., and FRED WOODS, J., concur.