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Sierra Club v. Union Oil Co. of Cal.

Citation: 19 ELR 20362
No. No. C 84-3435, 716 F. Supp. 429/28 ERC 1835/(N.D. Cal., 12/16/1988) On remand

On remand from the Ninth Circuit, the court holds that a violation is ongoing for purposes of a citizen suit under the Federal Water Pollution Control Act (FWPCA) if the same parameter has been exceeded or if a violation recurs and the cause has not been completely eradicated. The court first holds that plaintiff may amend its complaint to allege additional national pollutant discharge elimination system (NPDES) permit violations. The court holds that FWPCA § 505(b)(1)(A) does not require plaintiff to provide defendant with 60 days notice before additional violations are alleged. Defendant had actual notice of those amendments that were based upon information contained in itsdischarge monitoring reports (DMRs), and the amendments alleging additional unreported violations relate to the same subject matter as the original complaint. The court also holds that plaintiff's motion to amend is not barred by a parallel state proceeding, since the original complaint in this case was filed prior to the state suit.

On the merits, the court rules that an NPDES permit violation is "ongoing" within the meaning of the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 18 ELR 20142, if the same parameter is exceeded before and after the citizen suit complaint is filed, as determined by examination of defendant's DMRs, or if a violation recurs and the cause has not been completely eradicated. The court holds that under this definition, defendant is liable for 74 reported violations alleged in the original complaint. Plaintiff has provided documentation that defendant has reported exceedances of certain parameters subsequent to the filing of the suit, and has also documented permit violations that occurred despite defendant's plant modifications. That defendant has not reported any exceedances for several months does not negate the ongoing nature of the violations, since intermittent or sporadic violations do not cease to be ongoing until there is no real likelihood of repetition. The court holds that defendant is also liable for 126 additional violations, rejecting defendant's affirmative defenses of intentional bypass, inoperative meters, visible oil, and storm basin overflows.

[Earlier decisions from this litigation are published at 15 ELR 20890; 16 ELR 20005, 2007; 17 ELR 20547; and 18 ELR 21299.]

Counsel for Plaintiff
Stephan C. Volker
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Roger Beers
380 Hayes St., Ste. 1, San Francisco CA 94102
(415) 972-1401

Counsel for Defendant
John F. Barg, F. Christopher Locke
Landels, Ripley & Diamond
450 Pacific Ave., San Francisco CA 94133
(415) 788-5000