KELLEY ON BEHALF OF PEOPLE OF STATE OF MICH. v. United States

• Decision Date: 20 September 1985
• Docket Number: No. G83-630.,G83-630.
• Citation: 618 F. Supp. 1103
• Parties: Frank J. KELLEY, Attorney General of Michigan for and on Behalf of the PEOPLE OF the STATE OF MICHIGAN and the Natural Resources Commission, Plaintiffs, v. The UNITED STATES of America; United States Department of Transportation; the Honorable Elizabeth Dole, Secretary of the Department of Transportation; the United States Coast Guard; and Admiral James Gracey, Commandant of the Coast Guard, Defendants.
• Court: U.S. District Court — Western District of Michigan

618 F. Supp. 1103

Frank J. KELLEY, Attorney General of Michigan for and on Behalf of the PEOPLE OF the STATE OF MICHIGAN and the Natural Resources Commission, Plaintiffs, v. The UNITED STATES of America; United States Department of Transportation; the Honorable Elizabeth Dole, Secretary of the Department of Transportation; the United States Coast Guard; and Admiral James Gracey, Commandant of the Coast Guard, Defendants.

No. G83-630.

United States District Court, W.D. Michigan, S.D.

September 20, 1985.

Frank J. Kelley, Atty. Gen. of Michigan by Stephen F. Schuesler, Asst. Atty. Gen., Environmental Protection Div., Lansing, Mich., for plaintiffs.

John A. Smietanka, U.S. Atty., Grand Rapids, Mich., and Dean K. Dunsmore, U.S. Dept. of Justice, Land & Natural Resources Div., Environmental Defense Section, Washington, D.C., for defendants.

OPINION

ENSLEN, District Judge.

This case is currently before the Court on Defendants' two pending dispositive motions. On July 13, 1984, Defendants filed a motion to dismiss Plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP) or in the alternative for summary judgment pursuant to FRCP 56(b). In this motion, Defendants contend that Plaintiffs' claim under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (Clean Water Act or CWA), fails to state a claim upon which relief can be granted. Defendants also argue that Plaintiffs' state law claims under Michigan's Water Resources Commission Act, M.C.L.A. § 323.1 et seq. (WRCA), and Thomas J. Anderson, Gordon Rockwell Environmental Protection Act, M.C.L.A. § 691.1201 et seq. (MEPA), are both barred by sovereign immunity. Defendants' second dispositive motion was filed on June 14, 1985, and requests a grant of partial summary judgment dismissing all claims for damages or costs incurred by East Bay Township and by residents, homeowners and businesses in the Avenue E area. Defendants argue that the instant Plaintiffs, the State Attorney General and the Natural Resources Commission, do not as a matter of law have standing as parens patriae to represent these narrow, private interests in a suit against the federal government. These two motions will be discussed separately.

At this point, some brief background is in order. Plaintiffs' original complaint contained only three counts, the federal claim under the Clean Water Act and the two state claims. Plaintiffs requested injunctive relief and an award of damages to the state on behalf of the state itself, East Bay Township and certain residents thereof. However, shortly after Defendants filed their initial motion to dismiss, Plaintiffs amended their complaint to include a fourth count claiming the same relief under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (CERCLA). Defendants have not contested the ability of Plaintiffs to maintain their CERCLA action, except as to the narrow parens patriae damages issue. Therefore, even if both of Defendants' motions are granted in full, Plaintiffs' CERCLA claim would remain for resolution.

I

A. Plaintiffs Claims Under the Clean Water Act

In a nutshell, this case involves allegations that certain toxic chemicals were released into the ground at the United States Coast Guard Air Station in Traverse City, Michigan, by Coast Guard personnel. Plaintiffs further allege that these chemicals contaminated the groundwater underlying the Air Station and that the plume of contamination is migrating downgradient in a north-easterly direction through East Bay Township and eventually discharging into the East Arm of Grand Traverse Bay. It is undisputed that the Coast Guard neither applied for nor received a permit from either the federal government or the state for this discharge.

Plaintiffs bring this "citizen suit" pursuant to section 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a), which provides in pertinent part that:

Except as provided in subsection (b) of this section precluding suit except after proper notice, any citizen may commence a civil action on his own behalf—

(1) Against any person (including (i) the United States and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter....

Section 301(a) of the CWA, 33 U.S.C. § 1311(a), provides that "except as in compliance with this section and certain other sections of the Act, the discharge of any pollutant by any person shall be unlawful." The term "discharge of a pollutant" is defined in section 502(12), 33 U.S.C. § 1362(12), as "any addition of any pollutant to navigable waters from any point source...." For the purposes of the CWA, the term "navigable waters" has been defined very broadly to mean simply "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). Some courts have interpreted "navigable waters" as broadly as possible under Congress' commerce power, United States v. Byrd, 609 F.2d 1204 (7th Cir.1979); Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir.1978), even so far as to exclude from consideration any concept of navigability, in law or in fact, United States v. GAF Corp., 389 F.Supp. 1379 (S.D.Tex.1975).

Defendants argue that while the term "navigable waters" is construed broadly, Congress did not intend to include groundwater within its definition. Indeed, Defendants maintain that the regulatory and enforcement aspects of the Clean Water Act were not designed to control the discharge of pollutants into the soil and groundwater. Certainly Congress realized the importance of the groundwater pollution issue. It specifically directed the Administrator of the Environmental Protection Agency (EPA) to cooperate with the states in establishing a national groundwater surveillance system. CWA section 104(a)(5), 33 U.S.C. § 1254(a)(5). It conditioned future grants to any state on the establishment of groundwater quality monitoring procedures. CWA section 106(e)(1), 33 U.S.C. § 1256(e)(1). It also directed the EPA to develop and periodically publish the latest scientific criteria for groundwater quality, the effect of its contamination, and information regarding its cleanup. CWA section 304(a)(1), (2), 33 U.S.C. § 1314(a)(1), (2). However, Defendants argue that the fact that Congress did not expressly include the term "groundwaters" in most of the regulatory provisions of Title III of the CWA, including section 301(a), indicates a clear intent to leave the regulation of groundwater pollution to the states.

This argument is substantially supported by the legislative history of the 1972 amendments. The Senate Committee on Public Works reported:

Several bills pending before the Committee provided authority to establish Federally approved standards for groundwaters which permeate rock, soil, and other subsurface formations. Because the jurisdiction regarding groundwaters is so complex and varied from State to State, the Committee did not adopt this recommendation.

The Committee recognizes the essential link between ground and surface waters and the artificial nature of any distinction. Thus, the Committee bill requires in section 402 that each State include in its program for approval under section 402 affirmative controls over the injunction or placement in wells of any pollutants that may effect groundwater.

S.Rep. No. 414, 92d Congress, 1st Sess. 73, reprinted in 1972 U.S.Code Cong. & Ad. News 3668, 3739. In response to the Senate's rejection of federal regulatory jurisdiction over groundwater, Representative Aspin introduced an amendment into the House to expressly bring groundwater within the regulatory scope of the Act. See 118 Cong.Rec. 10666 (1972) (remarks of Rep. Aspin). After a spirited debate, the Aspin amendment was defeated by a vote of 86-34. Id. at 10669.

This same legislative history was more thoroughly analyzed in Exxon Corp. v. Train, 554 F.2d 1310 (5th Cir.1977). That court characterized the Senate Report quoted above as "evincing a clear intent to leave the establishment of standards and controls for groundwater pollution to the states." Id. at 1325. Likewise, it concluded that the "House bill, like the Senate bill, did not authorize federal control over any phase of groundwater pollution." Id. at 1326.

Plaintiffs seek to distinguish the facts of the principal case from those found in Exxon. The instant complaint alleges that the pollutants released into the ground at the Air Station not only contaminated the groundwater, but are naturally discharging into the Grand Traverse Bay—an undisputed navigable body of water. Complaint ¶ s 34, 43 & 47. By comparison, the Exxon case dealt with disposal of pollutants into deep wells. The Exxon court prefaced its entire discussion with the recognition of the distinction:

Throughout this opinion, we will use certain terms interchangeably that are not, strictly speaking, equivalent. The main example is our equation of "disposal into deep wells" with "disposal into groundwaters".... We make this equation because neither party before us argues that the disposal into wells at issue here ... is disposal into anything other than groundwaters. Specifically, EPA has not argued that the wastes disposed of into wells here do, or might, "migrate" from groundwaters back into surface waters that concededly are within its regulatory jurisdiction.... We mean to express no opinion on what the result would be if that were the state of facts.

Exxon, 554 F.2d at 1312 n. 1 (emphasis added).

Plaintiffs also rely on an unpublished opinion from the Eastern District of Michigan in a case similar to the case at bar. Kelley v. United States, No. 79-10199 (E.D.Mich. Oct. 28, 1980). In that opinion, the court ruled that the State Attorney General could maintain an action against the United States under section 505 of the Clean Water Act...