United States v. Gaf Corporation

• Decision Date: 05 February 1975
• Docket Number: Civ. A. No. 74-G-150.
• Citation: 389 F. Supp. 1379
• Parties: UNITED STATES of America, Plaintiff, v. GAF CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Texas

389 F. Supp. 1379

UNITED STATES of America, Plaintiff, v. GAF CORPORATION, Defendant.

Civ. A. No. 74-G-150.

United States District Court, S. D. Texas, Galveston Division.

February 5, 1975.

Robert Darden, Asst. U. S. Atty., and Richard Parker, Asst. U. S. Atty., Houston, Tex., for plaintiff.

F. Walter Conrad, Jr., Baker & Botts, Houston, Tex., for defendant.

MEMORANDUM OPINION

NOEL, District Judge.

A. PREFACE

This civil action was begun on September 6, 1974 when plaintiff United States of America applied to this Court for a temporary restraining order, and for temporary and permanent injunctive relief. The gist of plaintiff's complaint was that defendant GAF Corporation was in the process of drilling two deep wells for the subsurface disposal of organic chemical wastes by injection, without the approval of the Environmental Protection Agency. The extraordinary relief of a temporary restraining order was sought to prevent the drilling process from proceeding beyond the stage where geological samples of the substrata could be taken.

Upon request of the Court, all counsel promptly appeared for a conference in Chambers. By a telephone call to the drill site, counsel determined that appropriate core samples could be taken from the two wells. Thereupon, with the approval of the Court, the parties entered into a stipulation that no further drilling operations would be conducted at the site without the concurrence of plaintiff.¹

With the case in this posture, numerous memoranda of agreement between the parties were entered into while discovery proceeded. The preservation of the status quo, achieved by the original stipulation and maintained by the memoranda of agreement, allowed the focus of the case to shift to plaintiff's request that the defendant be enjoined from using, as opposed to drilling, deep wells in contravention of the Federal Water Pollution Control Act (hereinafter called FWPCA), Chapter 26, 33 U.S.C. §§ 1251-1376.

The FWPCA was amended in 1972 (see P.L. 92-500, § 2 Oct. 18, 1972) so that it is now, for all practical purposes, an entirely new Act. The Congressional declaration of goals and policy which introduces the new FWPCA, § 1251(a), states that, "the objective of the FWPCA is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." This far-reaching objective is matched by the comprehensive provisions enacted to achieve it which, as will appear, are in issue here.

On October 22, 1974, defendant moved to dismiss this action for lack of jurisdiction over the subject matter under Fed.R.Civ.P. 12(b)(1), and for failure to state a claim under Fed.R.Civ.P. 12(b)(6).² Controversies over discovery and other matters so occupied the attention of the Court and counsel, that attention to defendant's motion to dismiss was delayed. Plaintiff's response to the motion was not received until November 19, 1974. At a hearing on November 22, 1974, the Court requested additional briefing on the jurisdictional issue. On December 10, 1974, oral argument on defendant's motion was heard. On December 12, 1974, the Court requested comment from the parties on the relevance and impact of the recent case of Sierra Club v. Lynn, 502 F.2d 43 (5th Cir. 1974). On December 19, 1974 the Court orally announced its ruling that defendant's motion would be granted, and notified the parties that a full memorandum opinion would follow. This is that opinion.

B. THE STATUTORY SCHEME³

Plaintiff's original complaint alleged jurisdiction solely under § 1319(b). Plaintiff's memorandum filed simultaneously with the complaint alleged that jurisdiction would "obtain" on a variety of grounds, no one of which was adequately explained. In defendant's brief accompanying its motion to dismiss, defendant challenged plaintiff's jurisdictional allegations. Plaintiff's brief in response effectively abandoned all jurisdictional grounds other than § 1319(b). Subsequently, in the memoranda requested by the Court on November 22, 1974 and December 12, 1974 and during oral argument on December 10, 1974, plaintiff failed to assert any basis for this Court's jurisdiction except § 1319(b). Accordingly, either this Court must have jurisdiction under § 1319(b) or defendant's motion to dismiss must be granted.

33 U.S.C. § 1319(b) provides:

The Administrator of the Environmental Protection Agency is authorized to commence a civil action for appropriate relief . . . for any violation for which he is authorized to issue a compliance order under subsection (a) of this section. Any action under this subsection may be brought in the district court of the United States for the district in which the defendant is located or resides or is doing business, and such court shall have jurisdiction to restrain such violation and to require compliance. Notice of the commencement of such action shall be given immediately to the appropriate State.

In conferring jurisdiction on the district courts, the second sentence of subsection (b) refers and applies only to a civil action embraced in the first sentence of subsection (b), which in turn refers only to a violation for which the Administrator is authorized to issue a compliance order pursuant to § 1319(a).

Subsection (a) of § 1319 authorizes in each of three separate paragraphs the issuance of a compliance order or the commencement of a civil action for appropriate relief for any violation pursuant to subsection (b). The first two of these paragraphs, §§ 1319(a)(1) and (2), concern ineffective enforcement by a State of limitations and conditions implementing certain sections of the FWPCA in discharge permits issued under State permit programs approved pursuant to § 1342. Neither of these paragraphs applies to the instant case.

Section 1319(a)(3) is the only provision which is relevant to this case. It provides:

Whenever . . . the Administrator finds that any person is in violation of section 1311, 1312, 1316, 1317, or 1318 of this title, or is in violation of any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title . . ., he shall issue an order requiring such person to comply with such section or requirement, or he the Administrator shall bring a civil action in accordance with subsection (b) of this section. (emphasis added).

Plaintiff has not complained of a violation of "any permit condition or limitation" by defendant. Indeed, there is no allegation that the Administrator has found such a violation by defendant. This Court's jurisdiction depends, therefore, on whether the Administrator could have found that the defendant is "in violation of section 1311, 1312, 1316, 1317, or 1318" of Title 33.

Section 1311 contains six subsections, the first of which provides:

(a) Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.

Subsection 1311(a) expands the list of potentially relevant sections so that it includes, with § 1311(a), the following: §§ 1311(b)-(f), 1312, 1316, 1317, 1318, 1328, 1342, and 1344.

Subsections 1311(b)-(e) concern the establishment by the Administrator of certain effluent limitations. Subsection 1311(f) bans the discharge of radiological, chemical, and biological warfare agents and high-level radioactive waste. Section 1312 concerns the establishment by the Administrator of certain water quality related effluent limitations. Section 1316 concerns the establishment by the Administrator of certain standards of performance. Section 1317 concerns the establishment by the Administrator of certain effluent standards. Section 1318 concerns inspection, monitoring, and entry by the Administrator. Section 1328 concerns the approval by the Administrator of aquaculture projects. Section 1342 concerns the issuance by the Administrator or by the States of pollution discharge permits. Section 1344 concerns the issuance by the Secretary of the Army of permits for dredged or fill material.

Plaintiff has not alleged that defendant is or could be in violation within the meaning of § 1319(a)(3), of any section of the FWPCA mentioned in the preceding paragraph. Nor does plaintiff claim that defendant has failed to comply with any of them within the meaning of § 1311(a). Plaintiff contends, rather, that the proposed discharge of defendant's pollutants⁴ will be a violation of § 1311(a) per se.

There are two independent reasons, each of them entirely sufficient, why defendant could not be in violation of § 1311(a) when the chemical wastes in question are disposed of by injection into the two deep wells. These reasons will be discussed separately.

C. NO "DISCHARGE OF A POLLUTANT"

The disposal of chemical wastes into underground waters⁵ which have not been alleged to flow into or otherwise affect surface waters does not constitute a "discharge of a pollutant" within the meaning of § 1311(a).

Section 1362(12) defines "discharge of a pollutant" to mean, for our purposes, "any addition of any pollutant to navigable waters from any point source." The expression "navigable waters" is defined in § 1362(7) to mean "the waters of the United States, including the territorial seas." This definition effectively excludes from consideration any concept of navigability, in law or in fact. United States v. Holland, 373 F. Supp. 665 (M.D.Fla.1974); United States v. Ashland Oil & Transp. Co., 364 F.Supp. 349, 351 (W.D.Ken.1973), aff'd, 504 F.2d 1317 (6th Cir. 1974). Thus, it is clear that this statute is intended to have broad applicability. The question before the Court is whether, in its breadth, the FWPCA applies to subsurface wells. The legislative history shows conclusively that it does not.⁶

In speaking to this issue, Senate Report No. 92-414 on the bill which became the FWPCA states:

Several bills pending before the Committee provided authority to establish Federally approved standards for

...