WESTERN NEBRASKA RESOURCES v. Wyoming Fuel Co.

• Decision Date: 30 June 1986
• Docket Number: No. CV 85-L-159.,CV 85-L-159.
• Parties: WESTERN NEBRASKA RESOURCES COUNCIL, Plaintiff, v. WYOMING FUEL COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

641 F. Supp. 128

WESTERN NEBRASKA RESOURCES COUNCIL, Plaintiff, v. WYOMING FUEL COMPANY, et al., Defendants.

No. CV 85-L-159.

United States District Court, D. Nebraska.

April 2, 1986.

On Motion For Reconsideration June 30, 1986.

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Andrew B. Reid, Broken Plow Law Office, Chadron, Neb., and Frank B. Morrison, Sr., Sun Lakes, Ariz., for plaintiff.

Mark D. McGuire of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, Neb., Richard L. Fanyo of Welborn, Dufford, Brown & Tooley, Denver, Colo., Ruth Anne Galter, Asst. Atty. Gen., Lincoln, Neb., Ann C. Hurley, U.S. Dept. of Justice, Land & Natural Resources Div. Environmental Defense Section, Washington, D.C., Sally R. Johnson, Asst. U.S. Atty., Lincoln, Neb., and Erik Olson, Environmental Protection Agency, Washington, D.C., for defendants.

MEMORANDUM

URBOM, District Judge.

The plaintiff, Western Nebraska Resources Council (WNRC), brings this action pursuant to numerous statutory and constitutional provisions which variously allege violations of the Safe Drinking Water Act. The defendants move to dismiss for lack of subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1).

Upon a jurisdictional challenge, the plaintiff has the burden of establishing jurisdictional facts. McNutt v. General Motor Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). Where a motion to dismiss for lack of subject matter jurisdiction is supported by affidavits, the plaintiff cannot rest upon the mere allegations of the complaint; rather, the response, by affidavit or otherwise, must set forth specific facts showing the court has jurisdiction. Weller v. Cromwell Oil Co., 504 F.2d 927, 929-930 (C.A. 6th Cir.1974).

The plaintiff contends that the district court may exercise jurisdiction pursuant to (1) section 1449 of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-8; (2) the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.; (3) general federal-question jurisdiction, 28 U.S.C. § 1331; (4) the Declaratory Judgment Act, 28 U.S.C. § 2201 and § 2202; (5) mandamus jurisdiction, 28 U.S.C. § 1361; and (6) the Fifth and Fourteenth Amendments to the United States Constitution. Based upon a review of all the statutory and constitutional provisions raised by the plaintiff, I conclude that none confers upon this court jurisdiction for review.

I. Background; Statutory Requirements of SDWA, 42 U.S.C. § 300f et seq.

The SDWA was enacted to prevent endangerment of drinking water sources. 42 U.S.C. § 300f et seq. authorizes the states to take primary responsibility for the management and protection of underground sources of drinking water. Section 300h(a)(1) directs the Administrator of the EPA to promulgate regulations for state underground injection control (UIC) programs. The states are empowered to establish "implementation plans" to achieve the promulgated standards; however, the plans are subject to review by the Administrator. Accordingly, § 300h-1(a) mandates that the Administrator list in the Federal Register each state requiring a UIC program. Pursuant to § 300h-1(b), each listed state, within 270 days of a promulgation of any regulation under § 300h or, if later, within 270 days of its listing, must submit to the Administrator an application for primary enforcement responsibility. The state must show, after reasonable notice and public hearings, that it adopted a UIC program which meets the regulations promulgated by the Administrator. Within 90 days after the state's submission of its application, the Administrator is required, after reasonable opportunity for presentation of views, to approve or disapprove by rule, in whole or in part, the state's UIC program. Section 300h-1(c) authorizes the Administrator to prescribe a UIC program, within 90 days of the due date, for a state which fails to submit a timely application or which has had its program disapproved.

A state with primary enforcement responsibility may propose to the Administrator that an identified aquifer be exempted from regulation. A request for an aquifer exemption is submitted to the Administrator in the form of a UIC program revision. The state designation of an aquifer exemption is subject to the approval of the Administrator after notice and an opportunity for public comment. Likewise, the designation of an exemption included within a submitted UIC application is not final until approved by the Administrator. 42 U.S.C. § 300g-5; 40 C.F.R. § 144.7.

This court has only the jurisdiction that Congress has conferred upon it by statute. Hempstead County & Nevada County Project v. U.S.E.P.A., 700 F.2d 459, 461 (C.A. 8th Cir.1983). The SDWA, 42 U.S.C. § 300j-7 and § 300j-8, divides review jurisdiction between the court of appeals and the district court. The forum designated by Congress is exclusive. Natural Resources Defense Council, Inc. v. EPA, 512 F.2d 1351, 1355 (C.A.D.C.1975). Section 300j-7 provides in pertinent part that,

"action of the Administrator in promulgating ... any regulation for State underground injection control programs ... or any other regulation ..., issuing any order ..., or making any determination under this subchapter may be filed only in the United States court of appeals for the appropriate circuit."

The petition for review must be filed within 45 days of the issuance of the promulgation, order, or determination. Review after the expiration of the 45-day period is permitted, provided the "petition is based solely on grounds arising after the expiration of such period." Significantly, § 300j-7 states that an "action of the Administrator with respect to which review could have been obtained under this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement or in any civil action to enjoin enforcement." Thus, review cognizable in the court of appeals under § 300j-7 precludes jurisdiction in district court. See Chrysler Corp. v. E.P.A., 600 F.2d 904, 912 (C.A.D.C.1979).

Section 300j-8, the "citizen suit" provision, states in relevant part that "... any person may commence a civil action ..." against (1) any person allegedly in violation of any requirement prescribed by or under the subchapter or (2) the Administrator for failure to perform "any act or duty under this subchapter which is not discretionary with the Administrator." No petition for review may be commenced prior to sixty days after the plaintiff has given notice of the violation to the alleged violator. Additionally, the "savings clause" provides that, "nothing in this section shall restrict any right which any person ... may have under any statute or common law to seek enforcement of any requirement prescribed by or under this subchapter or to seek any other relief."

II. Claims Posited Against the Administrator of the Environmental Protection Agency

I am not convinced that the numerous allegations within the plaintiff's complaint constitute a failure to perform a nondiscretionary duty by the Administrator. The plaintiff articulates essentially two claims evincing unlawful inaction on the part of the Administrator necessitating the enforcement procedures of the citizen suit. The Administrator allegedly failed to (1) provide public notice and a comment period in advance of the approval of the state UIC program and (2) protect the Chadron formation's underground sources of drinking water from endangerment.

1. The uncontroverted evidence presented by the defendants establishes that the State of Nebraska was listed as requiring a UIC program on June 19, 1979. On March 4, 1982, an application for a Nebraska UIC program was submitted to the Administrator for the regulation of Classes I, III, IV, and V wells. The proposed program was to be administered by the Nebraska Department of Environmental Control (NDEC). On March 26, 1982, the Administrator published notice of the receipt of the Nebraska application, requested public comments, and scheduled a public hearing on the submitted Nebraska UIC program. A public hearing occurred on April 29, 1982, in Sidney Nebraska. The administrator approved the Nebraska UIC program on June 12, 1984, effective June 26, 1984, after "a careful review of the application" and upon ensuring that the injection wells met the requirements of § 1422 of the SDWA, codified as 42 U.S.C. § 300h-1. Additionally, the Administrator stated that the newly approved state program replaced the existing EPA-administered UIC program which was promulgated May 11, 1984, to comply with the SDWA requirement that a federally administered program be promulgated in the event a state administered program is not approved "within a certain time." The Administrator further noted that the approval, in large part, simply approved as a federal UIC program the state regulations and requirements presently in effect under Nebraska state law. Defendant's Exhibit # 2, filing # 4. The EPA approval was codified in 40 C.F.R. § 147.1401.

The plaintiff contends that the Nebraska UIC program that was submitted to the Administrator on March 4, 1982, was "expressly denied" upon the EPA is implementing of a federally administered UIC program on May 11, 1984. Thus, the plaintiff argues that the application ultimately approved by the Administrator on June 12, 1984, was promulgated without a hearing or comment period as no additional application was submitted. Brief in Consolidated Response to Defendants' Motion to Dismiss at 4. The plaintiff misapprehends the action of the Administrator in this regard. According to the uncontested evidence presented by the defendants, the institution of the federally administered program merely fulfilled the Administrator's statutory obligation to promulgate a program where a state administered program is not approved "within a certain time." Defendant's Exhibit # 2. The Administrator did not disapprove the UIC program; rather, the Administrator expressly left that...