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Sierra Club v. Union Oil Co. of Cal.

Citation: 19 ELR 20963
No. No. C 84-3435, 716 F. Supp. 435/29 ERC 2009/(N.D. Cal., 05/17/1989) On reconsideration

The court declines to reconsider an earlier order holding that a Federal Water Pollution Control Act (FWPCA) citizen suit defendant's bioplant bypasses constitute violations of its national pollutant discharge elimination system (NPDES) permit. In its earlier decision, the court held that the California Regional Water Quality Control Board's alleged acquiescence to defendant's violations was irrelevant to the question of defendant's liability. The court now holds that the citizen suit plaintiff is not estopped from holding defendant to the terms of its permit prohibiting bypasses, since the state would not be estopped from prosecuting defendant despite its alleged acquiescence. The injustice that may be done to defendant does not outweigh the harm that would be done to the public's interest in pollution-free waters if the government were estopped. Even if the state were estopped, the citizen suit could proceed, since the very purpose of the FWPCA's citizen suit provision is to ensure that environmental laws will be enforced even when the state or federal government have not been diligent in their roles. The court rejects defendant's argument that it had designed its treatment plant so as to make bioplant bypasses occasionally necessary and that the NPDES permit's bypass prohibitions do not apply to designed bypasses. The permit on its face prohibits all bypasses except to prevent loss of life or severe property damages, or where excessive storm runoff would damage facilities necessary for compliance. None of the bypasses for which defendant has been held liable fall into either of these categories. The court holds that a bypass does not become permissible if it is later determined that no effluent limitations were exceeded, since otherwise the bypass prohibition would be meaningless.

[The court's earlier order is published at 19 ELR 20362. Previous decisions from this litigation are published at 15 ELR 20890; 16 ELR 20005 and 20007; 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 J. Barg, F. Christopher Locke
Landels, Ripley & Diamond
450 Pacific Ave., San Francisco CA 94133
(415) 788-5000