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United States v. GAF Corp.

Citation: 5 ELR 20581
No. No. 74-G-150, 389 F. Supp. 1379/7 ERC 1581/(S.D. Tex., 02/05/1975)

The injection of organic chemical wastes into subsurface wells whose waters are not alleged to flow into or otherwise affect surface waters does not constitute a "discharge of a pollutant" within the meaning of § 301(a) of the Federal Water Pollution Control Act Amendments of 1972. The legislative history shows conclusively that the regulation of subsurface discharges into groundwaters is not within the enforcement purview of the statute. In addition, even if defendant's proposed injection disposal did represent a discharge of a pollutant, the discharge would not be in violation of any applicable provision of the Act within the meaning of § 309(a)(3), since EPA has not yet established effluent limitations for such discharges and no NPDES permit has yet been issued to the defendant. Plaintiff's contention that no discharge at all is permissible until defendant has obtained a permit under § 404 incorporating these effluent limitations, once they have been established, is mistaken because it would have unreasonably drastic consequences. The case is dismissed for lack of subject matter jurisdiction.

Counsel for Plaintiff
Robert Darden
Richard Parker Ass't U.S. Attorneys
U.S. Courthouse
Houston, Tex. 77002

Counsel for Defendant
F. Walter Conrad, Jr.
Baker & Botts
One Shell Plaza
Houston, Tex. 77002