This matter came before the Court on Monday, December 13, 1993, on plaintiffs' motion for partial summary judgment. Plaintiffs seek a ruling that Shell Oil Company has discharged selenium into the San Francisco Bay in amounts exceeding that allowed by its permit. Having carefully considered the parties' written and oral arguments, and the record herein, the motion is granted for the reasons set forth below.
Toxic chemicals and pollutants are discharged every day into the San Francisco Bay from dozens of urban industrial and agricultural sources. The agency responsible for regulating these discharges is the California Regional Water Quality Control Board, San Francisco Region (hereafter "Water Board"). Acting under the mantle of the Clean Water Act, 33 U.S.C. § 1251 et seq., the Water Board issues National Pollution Discharge Elimination System permits ("NPDES permits"), which impose enforceable limits on the amount of pollutants that defendant Shell Oil Company ("Shell"), and other industrial sources, can lawfully discharge into the San Francisco Bay. 33 U.S.C. §§ 1251(b), 1342.
In light of mounting evidence that high concentrations of selenium were harming the San Francisco Bay,
the Water Board issued an order modifying Shell's NPDES permit in February 1991. The well publicized order required Shell's oil refinery in Martinez, California -- the largest industrial source of selenium in the Bay -- to reduce its selenium discharges by more than half of current levels to a running annual average of 2.13 lbs/day. To give Shell time to comply with this standard, the Board delayed its implementation until December 12, 1993. See February 1991 Water Board Order No. 91-026.
Four months later, however, concerns over selenium in the Bay prompted the Water Board to impose interim selenium limits, pending implementation of the 2.13 lbs/day standard on December 12, 1993. Thus, in June of 1991, the Water Board again modified the NPDES permit to impose interim selenium limits on six refineries, including a limit of 5.8 lbs/day for Shell. The Water Board explained that these interim limits were based on recent discharge data for each refinery, and thus were "intended to be a cap on current performance." See June 19, 1991 Water Board Order No. 91-099.
In 1992, plaintiffs CALPIRG,
and individual CALPIRG members, filed suit against Shell under the citizens' suit provision of the Clean Water Act. 33 U.S.C. § 1365. The complaint alleges, inter alia, that Shell has been discharging selenium in excess of the interim 5.8 lbs/day limit set forth in its NPDES permit. This allegation is based on Shell's own monitoring data, which shows that Shell exceeded the 5.8 lbs/day standard for parts of 1991 and most of 1992. In late 1992, Shell's selenium discharges were calculated at 7.1 lbs/day, representing a 22 percent increase over the 5.8 lbs/day interim numeric limit. Plaintiffs also allege, on information and belief, that Shell will violate the stricter 2.13 lbs/day standard on dates after December 12, 1993.
Plaintiffs now seek a partial summary judgment as to liability with respect to their claim regarding selenium, and then only with regard to the interim standard. Specifically, they seek a ruling that Shell has exceeded the terms of its interim NPDES permit, and hence violated the Clean Water Act, by discharging selenium in excess of 5.8 lbs/day. Shell opposes the motion, arguing that, based on its reading of the permit, plaintiffs have failed to prove a violation of interim NPDES permit. Shell also contends that a variety of other issues create triable questions of fact precluding summary judgment.
Disturbed by increasing pollution of our Nation's waters, Congress enacted the Federal Water Pollution and Prevention Control Act (also known as the Clean Water Act) to "restore and maintain [their] chemical, physical, and biological integrity." 33 U.S.C. § 1251(a); Sierra Club v. Union Oil Co., 813 F.2d 1480, 1483 (9th Cir. 1987), vacated and remanded on other grounds, 485 U.S. 931 (1988). To achieve this objective, Congress prohibited the discharge of pollutants, such as selenium, into navigable waters, except as authorized by a NPDES permit. 33 U.S.C. §§ 1311 (a), 1342; Sierra Club, 813 F.2d at 1483.
This statutory scheme makes dischargers, such as Shell, "strictly liable" for any violation of a NPDES permit. United States v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir. 1979); United States v. Sinclair Oil Co., 767 F. Supp. 200, 205 (D. Mont. 1990); United States v. City of Hoboken, 675 F. Supp. 189, 198 (D.N.J. 1987). Thus, neither good faith, impossibility, nor data reporting errors, are accepted as valid defenses to liability, Sierra Club, 813 F.2d at 1491-92; Hoboken, 675 F. Supp. at 198; Student Public Interest Research Group ("PIRG") v. AT & T Bell Laboratories, 617 F. Supp. 1190, 1203 (D. N.J. 1985), although such factors may be relevant to the penalty phase. 33 U.S.C. § 1319(d). In short, "excuses are irrelevant; under the [Clean Water] Act the party must either achieve the discharge levels it has been allowed, or pay the consequences of its discharge, or stop discharging." Hoboken, 675 F. Supp. at 198.
Citizen groups, such as CALPIRG, are expressly authorized to sue dischargers to enforce limits contained in NPDES permits, where the relevant government agency fails to take its own enforcement action upon being given 60 days notice of an intent to sue. 33 U.S.C. § 1365. Thus, the only issue in an NPDES enforcement action, such as the case at bar, is whether there has, in fact, been a violation of the NPDES permit.
The specific language of Shell's NPDES permit is as follows:
The Dischargers named below shall comply with the following selenium effluent mass emission rates listed below, effective immediately . . .