Citizens for a Better Environment-California v. Union Oil Co. of California

• Decision Date: 16 July 1996
• Docket Number: S,No. 95-15139,ENVIRONMENT-CALIFORNI,95-15139
• Citation: 83 F.3d 1111
• Parties: , 26 Envtl. L. Rep. 21,152, 96 Cal. Daily Op. Serv. 3359, 96 Daily Journal D.A.R. 5475, 96 Daily Journal D.A.R. 8482 CITIZENS FOR A BETTERan Francisco Baykeeper, Save San Francisco Bay Association, The Bay Institute of San Francisco, Santa Clara Valley Audubon Society, Kalon Wofford and Anthony Willis, Plaintiffs-Appellees, v. UNION OIL COMPANY OF CALIFORNIA, a corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1111

83 F.3d 1111

42 ERC 1737, 26 Envtl. L. Rep. 21,152,

96 Cal. Daily Op. Serv. 3359,

96 Daily Journal D.A.R. 5475,

96 Daily Journal D.A.R. 8482

CITIZENS FOR A BETTER ENVIRONMENT-CALIFORNIA, San Francisco Baykeeper, Save San Francisco Bay Association, The Bay Institute of San Francisco, Santa Clara Valley Audubon Society, Kalon Wofford and Anthony Willis, Plaintiffs-Appellees, v. UNION OIL COMPANY OF CALIFORNIA, a corporation, Defendant-Appellant.

No. 95-15139.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 8, 1996.

Decided May 13, 1996.

As Amended July 16, 1996.

Linda M. Dardarian (argued), Jollee Faber, Saperstein, Goldstein, Demchak & Baller, Oakland, California, for plaintiffs-appellees.

Sanford Svetcov (argued), Landels, Ripley & Diamond, San Francisco, California, for defendant-appellant.

Tseming C. Yang (argued), United States Department of Justice, Washington, D.C.; John P. Dyer, Boalt Hall School of Law, University of California, Berkeley, California, Board of Supervisors of the City and County of San Francisco; City Councils of the Cities of Richmond, Martinez, and Albany; The Board of Directors of the East Bay Regional Park District; George Miller and Ronald V. Dellums, Members of Congress; Members of the California Assembly Robert Campbell (11th District), Tom Bates (14th District), and Barbara Lee (16th District); and Norman Laforce in his capacity as Mayor of the City of El Cerrito; Stephan C. Volker, Sierra Club Legal Defense Fund, San Francisco, California; Barry S. Neuman, Jenner & Block, Washington, D.C.; American Petroleum Institute and The Chemical Manufacturers Association; Craig E. Stewart, Pillsbury Madison & Sutro, San Francisco, California, Exxon Corporation and Western States Petroleum Association; Edward J. Casey, McClintock, Weston, Benshoof, Rochefort Rubalcava & Maccuish, Los Angeles, California, California Chamber of Commerce and California Council for Environmental and Economic Balance; Scott M. DuBoff, Wright & Talisman, P.C., Washington, D.C., American Automobile Manufacturers Association, The Chamber of Commerce of the United States of America, National Association of Manufacturers, ACME Metals, Inc., Coats America, Inc., Crucible Specialty Metals, Cyprus-AMAX, Inc., Dresser Industries, Inc., General Electric Co., Murphy Oil USA, Inc., PMC, Inc., Total Petroleum, Inc., U.S. Steel Group, and Zeneca, Inc.; Charles S. Treat, Latham & Watkins, San Francisco, California, 28 California Cities and Towns; Charles C. Caldart, David A. Nicholas, Joshua R. Kratka, National Environment Law Center, California Public Interest Research Group, Illinois Public Interest Research Group, Massachusetts Public Interest Research Group, Public Interest Research Group in Michigan, Public Interest Research Group of New Jersey, Ohio Public Interest Research Group, and Washington Public Interest Research Group, Boston, Massachusetts, for amici curiae.

Stephan C. Volker, Sierra Club Legal Defense Fund, attorney for Amici Curiae Sierra Club, Hudson Riverkeeper Fund, Inc., Natural Resources Defense Council, Atlantic States Legal Foundation, Earth Island Institute, Clean Water Action, United Anglers of California, Marin Audubon Society, Golden Gate Audubon Society, Peninsula Conservation Center Foundation, Petaluma River Council, Pacific Coast Federation of Fishermen's Associations, ARC Ecology, Citizens for the Eastshore State Park, Ohlone Audubon Society, Inc., Mount Diablo Audubon, Madrone Audubon Chapter, Committee to Save the Mokelumne, California Sportfishing Protection Alliance, Coastal Advocates, Santa Monica Baykeeper, San Diego Baykeeper, Surfers Environmental Alliance, Hawai'i's Thousand Friends, The Hawai'i-la Ieikawai Association, Inc., Puget Soundkeeper Alliance, Northwest Environmental Advocates, Tualatin Riverkeepers, Delaware Riverkeeper Network, New York/New Jersey Harbor Baykeeper, Friends of Santa Fe County, and New Mexico Environmental Law Center.

Appeal from the United States District Court for the Northern District of California; Thelton E. Henderson, District Judge, Presiding.

Before: BROWNING and JOHN T. NOONAN, Jr., Circuit Judges, and MERHIGE, Senior District Judge. ^*

MERHIGE, Senior District Judge:

This case arises under the federal Water Pollution Control Act (the "Clean Water Act"), 33 U.S.C. § 1251, et seq. The Appellees, Citizens for a Better Environment, et al. ("CBE"), brought this action in the federal district court for the Northern District of California pursuant to the citizen suit provision of that Act, 33 U.S.C. § 1365. In the Complaint, CBE asserted a claim for violations of the Clean Water Act effluent standards, a claim for violations of Clean Water Act water quality standards, and a state law claim. Although the district court granted the motion of the Appellant, Union Oil Company of California ("UNOCAL"), to dismiss as to the water quality standards claim, the district court denied UNOCAL's motion to dismiss, premised on 33 U.S.C. § 1319(g)(6)(A)(ii) and (iii), as to the effluent standards claim and the dependent state law claim. The district court certified its order denying UNOCAL's motion to dismiss for immediate appeal pursuant to 28 U.S.C. § 1292(b).

I.

The Clean Water Act regulates the discharge of pollutants into navigable waters. The Act prohibits all discharge of pollutants except inasmuch as one of several enumerated statutory exceptions applies. 33 U.S.C. § 1311(a). One such exception is where the polluter has been issued a National Pollution Discharge Elimination System ("NPDES") permit. 33 U.S.C. § 1342. The effluent discharge standards or limitations specified in an NPDES permit define the scope of the authorized exception to the prohibition in § 1311(a). Authority to administer the NPDES permit system may be delegated to a state or regional agency where the state or regional regulatory scheme meets certain criteria. 33 U.S.C. § 1342(b). The entity responsible for issuing permits in the San Francisco Bay area of California is the California Regional Water Quality Control Board, San Francisco Region (the "Regional Board"). Private citizens may bring suit pursuant to 33 U.S.C. § 1365 to enforce effluent standards orlimitations, which are defined as including violations of 33 U.S.C. § 1311(a). 33 U.S.C. § 1365(f)(1).

UNOCAL owns and operates a petroleum refinery in the San Francisco Bay area of California. Wastewater from the refinery is subject to UNOCAL's NPDES permit issued by the Regional Board. On February 20, 1991 the Regional Board issued Order No. 91-026, which amended the UNOCAL's NPDES permit for the San Francisco Bay area refinery. The order set a "final" concentration limit on selenium discharges of 50 parts per billion ("ppb") and a mass emission rate of .85 pounds per day, calculated on a running annual average. The final selenium limitation was to take effect December 12, 1993. On June 16, 1991 the Regional Board issued Order No. 91-099 amending UNOCAL's NPDES permit to include an "interim limit" less stringent than the final limit which took effect immediately and which was to remain in force until the final limit came into effect. UNOCAL is in substantial compliance with the interim limit but is not in compliance with the final limit.

The Regional Board issued these orders pursuant to 33 U.S.C. § 1314(l) of the Clean Water Act, which required the Regional Board to adopt individual control strategies for discharges into waters determined by the United States Environmental Protection Agency ("EPA") or the state to be impaired. The Regional Board listed San Francisco Bay as a "hot spot" under § 1314(l) on the ground that it failed to meet the "applicable water quality standard" of the Clean Water Act "due entirely or substantially to discharges from point sources of any toxic pollutants." See 33 U.S.C. § 1314(l)(1)(B).

The state water board denied an appeal by UNOCAL and other refiners challenging the selenium discharge limits. Shortly thereafter, on October 12, 1992, UNOCAL and others filed a petition for a writ of mandate in the Solano County Superior Court of California seeking to set aside the interim and final limits on the grounds that the Regional Board's listing of the San Francisco Bay as a "hot spot" violated the Clean Water Act and its implementing regulations.

Over the course of 1993, UNOCAL and others were in settlement discussions with the Regional Board. Although other refiners in the area became able to meet the final limits, UNOCAL and other refiners maintained their inability, due to technological constraints, to meet the final selenium limits. On November 8, 1993, UNOCAL, along with other refiners, reached a settlement agreement whereby UNOCAL and others would dismiss the state lawsuit and the Regional Board would adopt a proposed cease and desist order ("CDO"). The parties dispute whether the settlement agreement and proposed CDO were released for public comment on November 9, 1993 or November 12, 1993. On November 19, 1993 and December 15, 1993 public hearings were held on the proposed CDO at which CBE participated. The Regional Board, with some minor modifications, issued the CDO on January 19, 1994 as Order No. 94-015.

The principal elements of the settlement agreement and the CDO were that UNOCAL and the other refiners dismissed their state court lawsuit without prejudice, UNOCAL and others paid the state a total of $2 million ($780,000 of which was contributed by UNOCAL), and the Regional Board issued the CDO which, among other things, relieves UNOCAL and others from meeting the final selenium limit until July 31, 1998. The CDO states, with respect to the latter element, that:

Compliance with this Order shall be in accordance with the following tasks and time schedules:

....

c. The dischargers shall implement a removal technology or technologies, or an alternate control strategy, which has been determined by the dischargers to be capable of achieving...