Sierra Club v. Union Oil Co. of California

No. C 84-3435 SC (N.D. Cal. May 17, 1989)

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

[19 ELR 20963]

Conti, J.:

Order Re: Bypass Issue

On February 27, 1989, this Court called for further briefing on Union Oil's motion to reconsider that portion of the Court's December 16, 1988 Order dealing with the "bioplant bypass" issue. On December 16, 1988, in its Order Re: Cross-Motions for Summary Judgment and Motion to Amend Complaint ("Order"), this Court found Union Oil liable for nine episodes of reported "bioplant bypasses," holding that such bypasses violated Union Oil's permit, and further holding that the fact that the California Regional Water Quality Control Board ("Regional Board") may have acquiesced to these violations before 1985 was irrelevant to the issue of whether Union Oil could be found liable for the violations in this citizen enforcement action. Order, at 12-13.

The parties have now extensively re-briefed the bioplant bypass issue. Having fully considered all of the arguments, affidavits, and exhibits offered by counsel, the Court declines to reconsider its December 16, 1988 Order, and finds that Union Oil's reported bioplant bypasses constitute violations of Union Oil's NPDES permit.

The Court does not find it necessary to retread all of the arguments raised by the parties. Instead, the Court will highlight the dispositive issues regarding the present controversy over the bioplant bypass.

Union Oil's 1985 NPDES permit, in effect at the time of the nine reported biological treatment plant ("bioplant") bypasses, provides that:

Any diversion from or bypass of facilities necessary to maintain compliance with the terms and conditions of this Order is prohibited, except (a) where unavoidable to prevent loss of life or severe property damage, or (b) where excessive storm drainage or runoff would damage any facilities necessary for compliance.

Union Oil does not dispute that this provision was in effect. Rather, Union Oil's central arguments against finding that the nine bypass incidents constitute permit violations are: (a) that Sierra Club is estopped from holding Union Oil to this portion of its permit; and (b) that no "bypass" violation occurred because Union Oil designed its treatment plant in such a way as to make bioplant bypass sometimes necessary, and a designed bypass is not the sort of bypass prohibited in the NPDES permit. The Court finds neither argument persuasive.

Union Oil claims that the State of California is estopped from prosecuting Union Oil for bypassing the bioplant, because Union Oil believes that the Regional Board knew, without objection until 1985, that Union Oil's plant design provided for occasional bypasses of the bioplant. Therefore, Union Oil argues, because the State is estopped from prosecuting the company, so is Sierra Club in this citizen enforcement action.

Whether the equitable doctrine of estoppel will be applied against the government requires careful consideration. The Ninth Circuit has recently made clear that in addition to the traditional requirements of estoppel — that the party to be estopped knew the true facts; that he intended for his conduct to be acted upon; that the party asserting estoppel was ignorant of the true facts; and that he relied on the other's conduct to his injury — a threshold test must be applied to the facts of a particular case before estoppel will run against the government. Watkins v. United States Army, No. 85-4006, slip op. 4551, 4566-4571 (9th Cir. May 3, 1989) (en banc). The party seeking to raise estoppel against the government must establish that (1) the government, via authorized acts of its agents, engaged in affirmative misconduct going beyond mere negligence; and (2) the injustice done to the party must outweigh the harm that will be done to the public interest if the government is estopped. Id.

The Court finds it highly unlikely that the second threshold estoppel requirement will ever be satisfied in the environmental enforcement arena. In Watkins, the Ninth Circuit held that the government was estopped from barring Watkins' re-enlistment into the Army, finding that "the injury to plaintiff from having relied on the Army's approval of his military career — and being denied it now — is the loss of his career. The harm to the public interest if reenlistment is not prevented is nonexistent." Slip op. at 4571. In the case at hand, the potential harm to the public interest in pollution-free waters greatly outweighs Union Oil's interest in not spending money to redesign its treatment plant.

But the Court does not base its rejection of Union Oil's estoppel argument solely on this ground. The Court also reiterates its holding in the December 16, 1988 Order, that a citizen enforcement action may be maintained where the State has known that a company was violating its permit, and has apparently acquiesced to these violations. Indeed, this is the purpose behind the citizen enforcement provisions of the Clean Water Act — to ensure that our environmental laws are enforced even where a state or the federal government have not been diligent in their roles. This Circuit treats citizen enforcement actions "liberally, because they perform an important public function. . . . [C]itizens should be unconstrained to bring these actions and the courts should not hesitate to consider them." Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1525 [18 ELR 20237] (9th Cir. 1987). Cf. Chesapeake Bay Foundation v. Bethlehem Steel Co., 652 F. Supp. 620, 632 [17 ELR 20623] (D. Md. 1987); SPIRG v. Georgia-Pacific Corp., 615 F. Supp. 1419, 1427 [16 ELR 20039] (D.N.J. 1985).

Union Oil's "design" arguments are similarly unavailing. Union Oil's NPDES permit, on its face, prohibitsbypass, except in two defined circumstances: where bypass is unavoidable to prevent loss of life or severe property damage; or where excessive storm drainage or runoff would damage any facilities necessary for compliance. Union Oil does not claim that its bypasses fall under either of these two exceptions; instead, Union Oil in essence argues that a third exception must be read into its permit which would allow bypass "if the company designs its plant making bypass necessary." The Court declines to imply such an exception into the permit. If Union Oil desired its permit to allow it to route unsegregated waste water [19 ELR 20964] flow in excess of 2500 gpm around its bioplant, Union Oil should have commenced an administrative challenge to its NPDES permit. It may not attempt to modify its permit here in defense to a citizen enforcement action. See Connecticut Fund for the Environment v. Upjohn Co., 660 F. Supp. 1397, 1413 [17 ELR 21137] (D. Conn. 1987); Connecticut Fund for the Environment v. Job Plating Co., 623 F. Supp. 207, 216-217 [16 ELR 20596] (D. Conn. 1985).

Union Oil spends much time arguing that a bypass "by design" is not "conduct" or is not "intentional," and that therefore Union Oil's "designed" bypasses do not violate the bypass prohibition in its permit. This reasoning misses the point that because Union Oil designed its plant to require bioplant bypass during excess flow, Union Oil's bypasses were intentional.¹

The Court also finds that a bypass does not become "permissible" or "non-reportable" if it later appears that no effluent limitations or other permit parameters were exceeded. Any other interpretation would render the bypass prohibition meaningless, a redundancy on top of the effluent limitation provisions. As the Court declined in Natural Resources Defense Council v. E.P.A., 822 F.2d 104 (D.C. Cir. 1987), so does this Court decline to hold the bypass provision meaningless. The bypass prohibition serves as a prophylactic tool for maintaining and controlling the biological integrity of the state's waters, by prohibiting bypass regardless of whether effluent limitations later turn out not to have been exceeded due to the bypass. See N.R.D.C., 822 F.2d at 123-125.

In accordance with the foregoing, the Court hereby sustains its December 16, 1988 Order, specifically, the following portion dealing with the bioplant bypass issue:

Union Oil seeks to withstand summary judgment for violations occurring within the "bioplant bypass" category by claiming that by design excess waters are routed around the bioplant, in violation of the NPDES permit, when water levels are too high. Union Oil claims that the violations caused by this bioplant bypass "bristle with factual issues" because the State Regional Board acquiesced to these violations for years, until very recently. The court finds that summary judgment is indeed appropriate on this issue. Union Oil's position would create a catch-22 situation: a citizen may not bring an enforcement action if a state is "diligently prosecuting" a polluter, and a citizen may not bring an enforcement action if the state never prosecuted a polluter.

Order, at 12-13.

IT IS SO ORDERED.

1. Hence, the phrase "by design," meaning, done purposefully, in accordance with a preconceived plan. Webster's dictionary states that "plan" and "intention" are synonyms for "design."