Appeals Court Reinstates Decision That Union Oil Co. Violated Clean Water Laws

The U.S. 9th Circuit Court of Appeals on Monday reinstated its precedent-setting decision that found Union Oil Co. guilty of 74 violations of clean water laws for refinery discharges, and rejected defenses based on limited technology and human errors.

The court said, however, that the Sierra Club could not seek millions of dollars in payments to the state from the company unless it can show that the violations at the Rodeo refinery on San Pablo Bay are continuing or are likely to resume.

But Stephen Volker, lawyer for the Sierra Club Legal Defense Fund, said Union Oil, now known as Unocal, has admitted numerous recent violations in its own self-monitoring report.

“We will have no difficulty at all in establishing that Union has continued violating its permit,” Volker said.

He said the environmental group will seek civil penalties of $10,000 a day, the maximum allowed at the time of the discharges, for more than 2,300 days of violations starting in 1977. It will also seek an injunction requiring the company to expand the capacity of its waste water treatment facility.

The final decision will be up to U.S. District Judge Samuel Conti, whose ruling in the company’s favor was reversed by the appeals court last year.

John Barg, a lawyer for Unocal, did not return telephone calls Monday.

The lawsuit claimed 76 violations of clean water laws, some of them covering monthlong periods, from discharges at the refinery in Contra Costa County. Volker said the Sierra Club has found a relationship between the discharges and a decline of the striped bass population.

In dismissing the suit in November, 1985, Conti said the excessive pollution was excused by heavy rains or human and mechanical errors.

The appeals court reversed his decision in April, 1987, ruling that the defenses allowed by Conti were unavailable under California water laws. The court said the violations had been established in 74 cases, and sent the other two back to Conti for more evidence.

The court said federal law had allowed states to impose clean water requirements that are more stringent than the national standards, an option that California has taken. Under the state law, if discharges exceed certain limits it is no excuse that the cause was beyond the polluter’s reasonable control, the court said.

On an appeal by the company, the Supreme Court ordered the 9th Circuit to reconsider the case in light of a recent ruling by the high court that set new requirements for water pollution suits by private citizens.

One requirement is that no penalties for past violations are allowed without proof that violations are continuing or are likely to recur.

In Monday’s decision, the appeals court said that the bulk of its 1987 ruling on the company’s violations was unaffected by the Supreme Court decision, which did not discuss the issue of what defenses are available under California law.

The unsigned ruling was issued by Chief Judge Alfred Goodwin and Judges Herbert Choy and Harry Pregerson.