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Sierra Club v. Union Oil Co. of Cal.

ELR Citation: 18 ELR 21299
Nos. No. 85-2868, 853 F.2d 667/28 ERC 1333/(9th Cir., 07/25/1988) Reinstated with amendment

The court reinstates its holding that a defendant in a Federal Water Pollution Control Act (FWPCA) citizen suit is liable for violations of its national pollutant discharge elimination system permit, but conditions liability on plaintiff's ability to prove ongoing violations or the reasonable likelihood of continued violations. The Supreme Court remanded the court's decision for further consideration in light of Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142. The court reinstates its holdings that defendant may not assert an upset defense or impeach its discharge monitoring reports by showing sampling error, there is no de minimis exception under the FWPCA for violations based on unusual human error, and plaintiff may amend its complaint to add violations that it did not or should not have known about when it filed its original complaint. Gwaltney did not invalidate any of these holdings and plaintiff has satisfied Gwaltney's threshold requirement of good-faith allegations of ongoing violations. That the district court has not addressed the issue of ongoing violations does not require a remand of the entire case to the district court. On remand, plaintiff may prove ongoing violations by showing that violations continued on or after the complaint was filed or by showing a continuing likelihood of a violations.

[Previous decisions in this case are published at 15 ELR 20890, 16 ELR 20005 and 20007, and 17 ELR 20547.]

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

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

Before Choy, Goodwin, and Pregerson, JJ.