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Citizens for a Better Env't v. Union Oil Co. of Cal.

ELR Citation: 26 ELR 21152
Nos. 95-15139, 83 F.3d 1111/42 ERC 1737/(9th Cir., 05/13/1996) Affirmed

The court holds that a petroleum refinery's payment of $780,000 to settle violations of a national pollutant discharge elimination system (NPDES) permit in exchange for the California Regional Water Quality Control Board's extension of an interim effluent standard deadline does not bar a citizen suit to enforce a final effluent standard in the refinery's NPDES permit. The court first holds that §309(g)(6)(A)(iii) of the Federal Water Pollution Control Act (FWPCA) does not bar the citizen suit. The $780,000 was not a penalty, but a settlement made to avoid an enforcement action. Moreover, the requirement in §309(g)(6)(A)(iii) that penalties only bar citizen suits if assessed under that section or comparable state law means that the penalty at issue must have been assessed under a provision of state law that is comparable to §309(g). The court next holds that the citizen suit was not barred under §309(g)(6)(A)(ii) by a state enforcement action commenced and diligently prosecuted. The state enforcement action was not taken under a comparable state law and the action is no longer being prosecuted.

The court next addresses the refinery's assertion that it did not violate an effluent standard or limitation because the state's cease and desist order (CDO) modified the permit to extend the deadline for complying with the effluent standard. The court holds that the doctrine of exhaustion of remedies does not preclude federal courts from addressing whether the CDO effectively modified the NPDES permit. The citizens do not challenge the validity of the CDO, but instead seek to enforce the FWPCA. Moreover, FWPCA §505 makes no mention of exhaustion of state remedies as a prerequisite for a citizen suit. Similarly, the abstention doctrine is not relevant where the federal action is not ruling on the validity of the state action. The court next holds that the CDO did not modify the terms of the refinery's NPDES permit. The CDO was an exercise of prosecutorial discretion by which the board worked out a compliance schedule to enforce the final effluent standards. Further, federal and state procedures governing the modification of NPDES permits were not followed, and any such modification would run afoul of substantive constraints on the ability of regulators to modify permits found at FWPCA §402.

[A previous decision in this litigation was published at 25 ELR 20216.]

Counsel for Plaintiff
Linda M. Dardarian
Saperstein, Goldstein, Demchak & Baller
1300 Clay St., 11th Fl., Oakland CA 94612
(510) 763-9800

Counsel for Defendant
Sanford Svetcov
Landels, Ripley & Diamond
Hills Plaza
350 Steuart St., San Francisco CA 94105
(415) 788-5000

Before Browning, Noonan, and Merhige,*JJ.