Hamker v. Diamond Shamrock Chemical Co., 84-1278

• Decision Date: 01 April 1985
• Docket Number: No. 84-1278,84-1278
• Citation: 756 F.2d 392
• Parties: , 15 Envtl. L. Rep. 20,385 William Dale HAMKER, et ux, Anita Hamker, Plaintiffs-Appellants, v. DIAMOND SHAMROCK CHEMICAL CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 392

756 F.2d 392

22 ERC 1826, 15 Envtl. L. Rep. 20,385

William Dale HAMKER, et ux, Anita Hamker, Plaintiffs-Appellants, v. DIAMOND SHAMROCK CHEMICAL CO., Defendant-Appellee.

No. 84-1278.

United States Court of Appeals, Fifth Circuit.

April 1, 1985.

Bruce E. Anderson, Austin, Tex., for plaintiffs-appellants.

Underwood, Wilson, Berry, Stein & Johnson, Kelly Utsinger, Amarillo, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, WILLIAMS and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The plaintiffs-appellants, William and Anita Hamker, filed suit under 33 U.S.C. Sec. 1365(a) of the Federal Water Pollution Control Act (the Act) seeking an injunction against Diamond Shamrock Chemical Co. (Diamond Shamrock) and the imposition of civil penalties. They also appended several claims arising under state law under the authority of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The district court dismissed under Federal Rule of Civil Procedure 12b(1) for failure to assert grounds for subject matter jurisdiction. We affirm.

I.

In January of 1983, a pipeline owned by Diamond Shamrock began to leak into a creek which flowed onto the Hamkers' property in Lipscomb County, Texas. Before the leak was detected and the flow of oil shut down, a period of about two weeks, approximately 2,400 barrels of crude petroleum were discharged into the creek. Diamond Shamrock's employees made an effort to clean up the spill. The Hamkers, however, allege that these efforts were grossly inadequate and resulted in perpetuating rather than alleviating the contamination.

The Hamkers sought an injunction requiring Diamond Shamrock to take reasonable precautions including reasonable monitoring of the pipeline to insure that violation of the Act was not repeated on their property, or elsewhere, in the future. They allege that the corporation operated the pipeline negligently and continues to do so. They also sought the imposition of civil penalties of $10,000 a day under the provisions of 33 U.S.C. Sec. 1319(d), and an award of costs of litigation, including reasonable attorney's fees and expert witness fees under the provisions of 33 U.S.C. Sec. 1365(d). The Hamkers' appended state law causes of action based on negligence by Diamond Shamrock in the operation and maintenance of its pipeline and in failing to take timely actions to clean up the spill. The plaintiffs sought under state law (the Act provides no recovery of damages) $40,000 for damage to fish and aquatic life in the stream, loss of the use of the stream for watering of their livestock, and loss of the recreational, commercial, and aesthetic value of the property, as well as $120,000 in punitive damages for Diamond Shamrock's gross negligence.

II.

Suit was filed in the United States District Court for the Northern District of Texas, Amarillo Division, on December 1, 1983. On December 29, 1983, the defendant filed its answer denying substantially all of the plaintiffs' allegations and further asserting that the court lacked subject matter jurisdiction of the case and that the complaint failed to state a claim upon which relief could be granted. By order dated January 4, 1984, the district court stated that it intended to treat the defendant's allegations of lack of subject matter jurisdiction as a motion to dismiss under Fed.R.Civ.P. 12(b) and ordered the parties to submit briefs on this issue according to a schedule established by the court. On January 27, 1984, the defendant filed its brief in support of its Motion to Dismiss for Lack of Subject Matter Jurisdiction. On February 24, 1984, the plaintiffs filed their brief in opposition to the motion. That same day, the court issued its order granting the defendant's motion to dismiss. The district court's order stated that it lacked subject matter jurisdiction because: (1) section 1365 authorizes only prospective relief the applicability of which, implicit by the court's action, was lacking here; (2) the statute does not permit citizen suits for past violations, only current violations; (3) the statute does not allow for recovery of damages; and (4) the statute does not create an implied cause of action.

We affirm the dismissal.

III.

Because the complaint here does not allege that Diamond Shamrock is "in violation" of an effluent standard, limitation or order, as required by section 1365, the Hamkers fail to state allegations sufficient to support jurisdiction in this case. The Hamkers, as they must, base their federal law claims on section 1365 of the Act, which permits citizen suits where the defendant is "alleged to be in violation of ... an effluent standard or limitation under ... [the Act] or ... an order issued by the Administrator or a State with respect to such a standard or limitation...." 33 U.S.C. Sec. 1365(a)(1). However, for the reasons discussed below, even if the Hamkers' complaint is liberally interpreted as alleging a past discharge of oil by Diamond Shamrock with continuing negative effects as well as continued negligent operation of the pipeline, the complaint does not satisfy section 1365's requirement that the defendant be alleged to be "in violation" of an effluent standard, limitation or order.

IV.

The language of section 1365 and the structure of the Act convince us that a complaint brought under section 1365 must allege a violation occurring at the time the complaint is filed. We first look to the language of section 1365. "[T]here is no need to refer to legislative history where the statutory language is clear.... This canon of construction has received consistent adherence in our decisions." Ex Parte Collett, 337 U.S. 55, 69 S.Ct. 944, 947, 93 L.Ed. 1207 (1949). ¹

A.

By its ordinary meaning the language of section 1365 requires an allegation of an ongoing violation: "any citizen may commence a civil action ... against any person ... who is alleged to be in violation of ..." the relevant standards, limitations or orders (emphasis added). Hamker asserts that "to be in violation of" means "to have violated"; however, this interpretation obviously strains the grammar of the statute and diverges from its ordinary meaning. "[Section 1365] does not provide for suits against parties alleged to have violated an effluent standard or limitation in the past...." City of Evansville v. Kentucky Liquid Recycling, 604 F.2d 1008, 1014 (7th Cir.1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 689, 62 L.Ed.2d 659 (1980) (cited with approval in Middlesex County Sewerage Authority v. National Sea Clammers, 453 U.S. 1, 101 S.Ct. 2615, 2625 n. 28, 69 L.Ed.2d 435 (1981).

B.

The statutory scheme here also indicates that where a complaint alleges no ongoing violation of an effluent standard, limitation or order, section 1365 provides for no citizen's right of action. Primary enforcement responsibility under the Act lies with the states and the Administrator. Section 1319(b) authorizes the Administrator to immediately commence a civil action where he finds any person is in violation of an effluent limitation, standard or order. The central role of the Administrator is to some degree "supplemented by the express citizen-suit provisions in ... [section 1365(a)]." Middlesex at 2623. Nevertheless, that the Administrator plays the central role in the enforcement of the Act is apparent from his power to issue compliance orders, to displace the states completely in enforcing the Act if their efforts are insufficient, to promulgate standards and regulations implementing the Act, to conduct continuing evaluations of potential losses or costs that might result from enforcement of the Act, and even to waive certain standards or limitations in certain circumstances. Chemical Manufacturers Ass'n v. Natural Resources Defense Council, --- U.S. ----, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985). While these powers of the Administrator "are supplemented by the express citizen-suit provisions in ... [Section 1365(a) ]," this section obviously does not permit the citizen to duplicate the Administrator's powers, as the Hamkers argue. Thus, although we do not decide an issue not before us, the Administrator may have the power to seek some redress for past violations, but this is no reason to waive the statutory requirement that citizens must allege that the defendant is "in violation" of an effluent standard, limitation or order.

The notice requirement of section 1365 also strongly indicates that it is the Administrator who is of central importance in the enforcement of the Act and that citizens are limited to bringing actions only to remedy an ongoing violation. Section 1365(b) forbids any citizen action under 1365(a) where notice has not been given to the Administrator, the state and the alleged violator, and in many instances sixty days notice is required. The requirement that notice be given to the responsible officials highlights their primary role in enforcing the Act compared to the supplementary position of the citizen; indeed, where the officials respond to the notice by diligently prosecuting an action against the alleged violator, the citizen is barred from bringing a separate suit. Moreover, it is most reasonable to read the requirement that notice also be given to the alleged violator as an indication that where the violator responds to the notice by bringing himself into compliance, the citizen loses the right to bring suit under 1365(a), just as he loses the right to commence an action where the Administrator or the state responds by diligently prosecuting an action against the alleged violator, City of Evansville; but see Friends of the Earth v. Carey, 535 F.2d 165, 175 (2d Cir.1976).

In summary, the Act is structured to concentrate enforcement authority in the Administrator and the states, with supplementary power given to citizens under section 1365(a). This supplementary power may be exercised only where...