Sierra Club v. Union Oil Co. of California

No. C-84-3435-SC (N.D. Cal. January 11, 1985)

The court holds that plaintiff has standing to bring a citizen suit under § 505 of the Federal Water Pollution Control Act alleging violations of the terms of defendants' national pollutant discharge elimination system permit for discharges into San Pablo and San Francisco bays and denies defendants' motion for summary judgment. The court first holds that plaintiff has standing to bring the action, noting that plaintiff alleges that some of its members use the bay and that these members' interests could be adversely affected by the alleged illegal discharges. Congress intended to encourage citizen suits, and it is not plaintiff's responsibility to demonstrate that its members specifically suffered injury as a result of defendants' alleged violations. The court then rejects defendants' argument that plaintiff is not authorized to bring a citizen suit because it is alleging only past violations of the Act, noting that the complaint alleges continuing violations. Third, the court holds that defendants' argument that its permit exceedances are "upsets" is a genuine issue of material fact that is not appropriate for the granting of summary judgment. Finally, the court finds that the RegionalBoard had not made a decision whether to prosecute defendants and therefore rejects defendants' argument that the Board had determined that no enforcement action was needed.

Counsel for Plaintiff
Stephen C. Volker
Sierra Club Legal Defense Fund
2044 Fillmore Street, San Francisco CA 94114
(415) 567-6100

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

David J. Williamson
Pacific Gas & Electric Co.
P.O. Box 7442, San Francisco CA 94120
(415) 781-4211

[15 ELR 20890]

Conti, J.:

[15 ELR 20891]

Opinion

Plaintiff brings a citizens' suit pursuant to Section 505 of the Clean Water Act, 33 U.S.C. § 1365, against defendants, alleging violations by defendants of the terms and provisions of their National Pollutant Discharge Elimination System Permit ("NPDES permit") and a violation of Section 301(a) of the Act, 33 U.S.C. § 1311(a). The matter is currently before the court on defendants' motion for summary judgment. Defendants argue that they are entitled to summary judgment on four separate grounds.

Defendant Union Oil Company of California ("Union") operates an oil refinery and defendant Pacific Gas and Electric Company ("Pacific") operates a steam electric generating plant on neighboring land in Rodeo, California.Plaintiff generally alleges that defendants jointly discharge treated wastes from these facilities through a point source, denominated as waste outfall number 002 in NPDES permit number CA 0005053, into San Pablo Bay, which is part of San Francisco Bay. Plaintiff also alleges that Union also discharges additional wastes from its refinery through two other point sources denominated in the above permit as waste outfall numbers 001 and 003 into the San Pablo Bay. Plaintiff maintains that defendants have submitted Discharge Monitoring Reports ("DMR's") and Non-Compliance Reports ("NCR's") which disclose a pattern of frequent and substantial non-compliance with the NPDES permit and the Clean Water Act. Plaintiff contends that defendants have at various times violated maximum daily effluent limitations and monthly average limitations as to the following substances: settleable solids, coliform, biological oxygen demand, total suspended solids, oil and grease, hexavalent chromium, total organic carbon, phenolic compounds, and floating, suspended or deposited oil or other products of petroleum origin visible in the receiving waters of the San Pablo Bay. Plaintiff further maintains that 16 of its members reside, own property or recreate in the vicinity of the San Pablo Bay and the San Francisco Bay, and hat the quality of the waters in these bays affects their health, economic, recreational, aesthetic, scientific and conservational interests. These members' interests will allegedly be adversely affected by a continuing failure of defendants to comply with their permit.

Summary judgment is proper only when there is no genuine issue of material fact or when, viewing the evidence and the inferences that may be drawn therefrom in the light most favorable to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56(c); Bank of California, N.A. v. Opie, 663 F.2d 977, 979 (9th Cir. 1981); State ex rel. v. Heimann, 633 F.2d 886, 888 (9th Cir. 1980). The burden of establishing the absence of a genuine material fact is on the moving party. Adickes v. Kress & Co., 398 U.S. 144, 157 (1970). The court concludes, as will be discussed below, that defendants are not entitled to summary judgment on any of the four bases they raise, and consequently, their motion will be denied.

Defendants first argue that plaintiff lacks standing to bring the present action. The court disagrees. The Clean Water Act allows citizen suits by all persons possessing standing under Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1973). Middlesex County Sewage Auth. v. Sea Clammers, 453 U.S. 1, 16 [11 ELR 20684] (1980). Under Sierra Club, persons or associations of persons have an interest sufficient to confer standing if they allege that they have been or will suffer an injury in fact by being affected or harmed by the challenged conduct. 405 U.S. at 734-35. Plaintiff alleges that some of its members use the waters of the bays in question and that these members' diverse interests in these waters will be adversely affected by defendants' alleged illegal discharges. In fact, there are cases which have approved of allegations for standing purposes which are nearly identical to plaintiff's allegations. See, e.g., SPRIG v. Anchor Thread Co., No. 83-2840 (D.N.J. 10/1/84).

Plaintiff has also provided detailed information in its answers to defendants' interrogatories concerning the nature and extent of these members' use of these waters, as well as their injury from pollution. Furthermore, Congress intended that citizen suits be encouraged "as a supplemental and effective assurance that the Act would be implemented and enforced," and to this end "[p]ossible jurisdictional barriers to citizen actions, such as amount in controversy and standing requirements, are expressly discarded." Friends of the Earth v. Carey, 535 F.2d 165, 172-73 [6 ELR 20488] (2d Cir. 1976) (addressing analogous citizen suit provisions of the Clean Air Act). Moreover, recent language by the Ninth Circuit indicates that the test for standing under the Act is liberal. Gonzales v. Gorsuch, 688 F.2d 1263, 1266 [13 ELR 20072] (9th Cir. 1982) ("[p]laintiff's interest as one who uses and enjoys the Bay is sufficient to meet the liberal personal stake requirements applicable to environmental plaintiffs"). Contrary to defendants' contention, it is not incumbent on plaintiff to demonstrate that its relevant members specifically and causally suffered injury from defendants' alleged violations. See, SPRIG v. Tenneco Polymers, Inc., No. 83-2105 [15 ELR 20309] (D.N.J. 9/10/84).

Defendants second argument for summary judgment is that plaintiff is not authorized to bring a citizen suit under the Clean Water Act because plaintiff merely alleges past violations on the part of defendants, and that the Act only affords prospective relief. Without delving into the issue of whether a citizen suit may be maintained under the Act only for past violations, it is clear to the court that defendants' argument lacks merit because plaintiff alleges not only past violations by defendants, but continuing violations as well. The complaint alleges an ongoing pattern of frequent and substantial non-compliance with the Act on the part of defendants. In fact, the complaint explicitly states that the "interests of the Sierra Club members have been, are being, and unless the relief prayed herein is granted, will be, adversely affected by the failure of defendants to comply with their permit." (Emphasis, added.) The complaint also alleges "that, without the imposition of appropriate civil penalties and issuance of an injunction, defendants will continue to violate their NPDES permit to the further irreparable injury of plaintiff and the public." (Emphasis added.)

Defendants' their argument for summary judgment is that its permit exceedances pointed to be plaintiff must be excused as "upsets" pursuant to 40 C.F.R. Ps 122.41(n)(1). The court finds that a genuine issue of material fact exists as to this contention by defendant, and consequently, granting of summary judgment on this issue is not appropriate. The declaration and supplemental declaration of Arthur J. Inerfield seem to rebut defendants' primary assertion that permit exceedances constituted "upsets" as a result of unusually severe rainstorms.

Finally, defendants' fourth argument for summary judgment is that the court should not second-guess the Regional Board which defendants allege "has carefully examined Union Oil's compliance record and determined that no enforcement action whatsoever is needed." Without engaging in the issue of whether it is appropriate or not for the court to second-guess the Board, the court finds defendants' argument unavailing because the record demonstrates that the Board has never made a formal decision whether to prosecute Union, and has not even considered the matter. The Board's executive officer merely recommended that the Board not prosecute Union, but seems to have made such a recommendation when he was unaware of the fact that Union may have been still violating its permit.

In accordance with the foregoing, it is hereby ordered that defendants' motion for summary judgment is denied.