Suit on Chevron’s Discharges in Bay Upheld by Court

In a decision that environmentalists predicted would make it easier to bring private enforcement actions against industrial polluters, a federal appeals court on Thursday upheld the Sierra Club’s lawsuit against Chevron USA Inc. over dangerous refinery discharges into Santa Monica Bay.

Ruling in a lawsuit that potentially seeks millions of dollars in penalties over discharges from Chevron’s El Segundo refinery, the U.S. 9th Circuit Court of Appeals held that citizens are permitted to bring private lawsuits to enforce federal environmental regulations even when a state or federal agency has taken enforcement steps against a polluter.

The court also upheld the Sierra Club’s contention that potential penalties may be assessed for violations over the last five years, rather than the three-year cutoff imposed by a trial court judge--a ruling that the Sierra Club said could multiply any penalties ultimately assessed against Chevron.

Halt to Problem Claimed

Chevron officials concede that heavy storm-water flows contributed to pollutant discharges in excess of the company’s federal permit limits in the past, but they claim that construction of $25 million in new waste treatment facilities and a new, $22-million effluent diversion project have virtually halted the problem.

Chevron spokesman Tom Richard said the company has not been in violation of its discharge permit limits since September, 1986.

The Sierra Club lawsuit and an $8.8-million suit filed by the Environmental Protection Agency last year seek to establish penalties for permit violations in past years.

In its lawsuit, the Sierra Club alleged 108 violations of Chevron’s discharge permit between July, 1977, and March, 1985, including impermissible levels of oil, grease and phenols, inappropriate temperature ranges, high levels of suspended solids and discharges of ammonia and other harmful substances.

Even before the lawsuit was filed, the California Regional Water Quality Control Board issued a cease-and-desist order requiring Chevron to build the new effluent diversion facility and, several months later, imposed $58,000 in fines for six permit violations that occurred in 1985.

No Authority Argued

Chevron argued in court that the Sierra Club had no authority to bring the lawsuit when the water quality control board was already taking steps to enforce the permit requirements.

Sierra Club lawyers countered that the board’s enforcement actions were not in the form of legal action, and argued that, in any case, private citizens’ groups should retain the right to bring private enforcement actions in cases where a governing board’s administrative actions are perceived to be insufficient.

“We’re interested in seeing that there’s an incentive for companies to change, even if an agency isn’t forcing them to, and that is the threat of a citizens’ suit,” said Buck Parker, coordinating attorney for the Sierra Club.

“That’s our whole purpose, to help provide a better incentive for polluters to come into compliance without an agency necessarily having to take action against them. In times of limited enforcement budgets, this is more and more important,” he said.

Sierra Club Upheld

Appeals Court Judge Harry Pregerson, writing in an opinion joined by Judge Stephen Reinhardt and Chief Judge James R. Browning, upheld the Sierra Club’s argument.

“Our own review of the legislative history indicates only that citizen suits should be handled liberally, because they perform an important public function,” the court ruled.

Buck called it a “significant ruling,” which he said would make it easier for private groups to bring enforcement suits against industrial polluters and, with the five-year statute of limitations ruling, will lend “more bite” to enforcement actions by imposing penalties over a longer range of violations.

Richard said Chevron attorneys are not yet certain what the impact of the ruling will be, and have also not decided whether to appeal.

“We obviously disagree with it, but we have to really review the legal opinion first,” he said.