ELR Citation: ELR 20890
No(s). C-84-3435-SC (N.D. Cal. Jan 11, 1985)

The court holds that plaintiff has standing to bring a citizen suit under §505 of the Federal Water Pollution Control Act alleging violations of the terms of defendants' national pollutant discharge elimination system permit for discharges into San Pablo and San Francisco bays and denies defendants' motion for summary judgment. The court first holds that plaintiff has standing to bring the action, noting that plaintiff alleges that some of its members use the bay and that these members' interests could be adversely affected by the alleged illegal discharges. Congress intended to encourage citizen suits, and it is not plaintiff's responsibility to demonstrate that its members specifically suffered injury as a result of defendants' alleged violations. The court then rejects defendants' argument that plaintiff is not authorized to bring a citizen suit because it is alleging only past violations of the Act, noting that the complaint alleges continuing violations. Third, the court holds that defendants' argument that its permit exceedances are "upsets" is a genuine issue of material fact that is not appropriate for the granting of summary judgment. Finally, the court finds that the Regional Board had not made a decision whether to prosecute defendants and therefore rejects defendants' argument that the Board had determined that no enforcement action was needed.

Counsel for Plaintiff
Stephen C. Volker
Sierra Club Legal Defense Fund
2044 Fillmore Street, San Francisco CA 94114
(415) 567-6100

Counsel for Defendants
John F. Barg
Landels, Ripley & Diamond
450 Pacific Avenue, San Francisco CA 94133
(415) 788-5000

David J. Williamson
Pacific Gas & Electric Co.
P.O. Box 7442, San Francisco CA 94120
(415) 781-4211