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McClellan Ecological Seepage Situation v. Weinberger

Citation: 19 ELR 20124
No. No. CIV S-86-475-RAR, 707 F. Supp. 1182/28 ERC 1282/(E.D. Cal., 06/20/1988) Motions for summary judgment

The court holds that the Federal Water Pollution Control Act's (FWPCA's) sovereign immunity waiver, § 313, applies only to objective and administratively pre-established water pollution control standards. The court first holds that past use of treated wastewater in the McClellan Air Force Base cooling system is not now subject to a citizen suit under Resource Conservation and Recovery Act (RCRA) § 7002, since the use of the wastewater ceased a month prior to the filing of the lawsuit. The RCRA citizen suit provision, as interpreted by the Supreme Court in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, requires both that the plaintiffs have a good-faith belief that the conduct complained of is continuing in nature and that the conduct must actually be continuing. Here, the conduct is no longer continuing. However, the court declines to dismiss the citizen suit complaint that unlined waste pits lack permits required under RCRA, awaiting further discovery on whether the pits were actively managed after November 19, 1980, when permits were first required. For the same reasons, the court also declines to dismiss allegations that the air base's report to the Environmental Protection Agency (EPA) under RCRA § 3010(a) was insufficient for failing to describe the waste pits and that the waste pits are currently subject to RCRA regulations. The court holds that the air base's storage of hazardous waste in drums is not violating 40 C.F.R. §§ 265.250 and 265.270 because these regulations do not apply to waste drums, and the drums have a proper water management system anyway.

The court next holds that it does not have subject matter jurisdiction over claims that the air base is violating requirements of the California Health and Safety Code. California's state requirements are not part of an EPA authorized program under RCRA, and so are not enforceable under the RCRA citizen suit provision. In a footnote, the court rules that RCRA's waiver of the federal government's sovereign immunity in § 6001 is insufficient to bring an unauthorized state program within the citizen suit provisions of § 7002.

The court next holds that allegations that the air base discharged waste into surface water during parts of 1981 through 1985 are not subject to the FWPCA citizen suit provision, § 505, because only past violations are alleged and the Supreme Court's decision in Gwaltney requires continuing violations. Moreover, the issue is moot because the discharges have ceased. The air base's stormwater runoff does not violate the FWPCA because it is expressly included in the air base's permit and permits for stormwater discharges are not presently required anyway. The air base's discharges to groundwater may require an FWPCA permit if they affect surface waters through a natural hydrogeological connection. The FWPCA does not require permits for discharges to isolated groundwater.

The court holds that the air base is not subject to California state laws requiring reports for discharges which could affect water quality, reports when discharges are initiated or changed, the protection of water resources under its control, and the assurance of potable water to users, and prohibiting the discharges that result in contamination, pollution, and nuisances. The FWPCA sovereign immunity waiver in § 313 applies only to "requirements," and this term applies only to objective and administratively pre-established water pollution control standards, not state laws that require an ad hoc judicial establishment of standards of conduct. Moreover, the FWPCA citizen suit provision, § 505, provides jurisdiction over only FWPCA effluent standards and limitations, and these are defined to include only those requirements of state law established in a permit. The court holds that the air base is not violating its FWPCA permit by discharging volatile organic compounds, since the permit only requires that such discharges be reported and the air base has done this.

The court rules that violations not alleged in the plaintiffs' notice of intent to sue may not be pursued in an FWPCA citizen suit. Finally, the court holds that the air base has not necessarily violated its FWPCA permit whenever receiving waters exceed their water quality standards; the permit is violated only if the air base has caused the exceedance.

[A previous opinion is published at 17 ELR 20344, and the plaintiffs' complaint is digested at ELR PEND. LIT. 65919.]

Counsel for Plaintiffs
Michael D. Axline, John B. Bonine
Pacific Northwest Resources Clinic
University of Oregon Law Center, Eugene OR 94703
(503) 686-3823

Victor M. Sher
Sierra Club Legal Defense Fund, Inc.
216 First Ave. South, Ste. 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Donald A. Ayers, U.S. Attorney
3305 Federal Bldg., 650 Capitol Mall, Sacramento CA 95814
(916) 551-2700

Stephen L. Samuels
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000