Jump to Navigation
Jump to Content

Kelley v. United States

ELR Citation: 16 ELR 20080
Nos. No. G83-630, 618 F. Supp. 1103/23 ERC 1494/(W.D. Mich., 09/20/1985)

The court rules that the Federal Water Pollution Control Act (FWPCA) does not apply to pollution of groundwater that subsequently enters a navigable surface water, that the waiver of sovereign immunity in FWPCA §313 does not apply to actions under state public nuisance statutes, and that Michigan does not have standing as parens patriae for individuals in a Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA) response cost action against the federal government. The court first holds that chemical discharges into groundwater are not subject to regulation under the FWPCA even if they eventually flow into surface waters. The legislative history clearly shows Congress' intent to leave responsibility for groundwater regulation to the states, and in fact, an amendment introduced for the specific purpose of bringing groundwater within the regulatory scope of the FWPCA failed. Plaintiffs cite a case that suggests that where the disposed wastes migrate from the groundwater into navigable waters, the FWPCA might apply; however, a careful reading of that case and analysis of the legislative history clearly show that Congress did not intend for the FWPCA to extend to any groundwater contamination. The court next holds that §313(a) of the FWPCA does not operate as a waiver of federal sovereign immunity with respect to plaintiffs' claims under Michigan's Water Resources Commission or Environmental Protection Acts. Section 313(a) resembles the federal sovereign immunity waivers in the Clean Air Act and Resource Conservation and Recovery Act, and the United States Supreme Court has held that the Clean Air Act waiver applies only to objective state pollution control standards. Neither of the state statutes here, which essentially codify public nuisance doctrine, provides objective, quantifiable standards subject to uniform application. Lastly, the court holds that the state may not maintain a parens patriae action under CERCLA for the residents of a township whose drinking water wells were contaminated. The exception that permits a state to maintain a parens patriae action against the federal government to prevent a violation of federal law by federal agencies does not apply here because CERCLA is a remedial statute rather than a regulatory one. Nor may the state use its "quasi-sovereign interest" in its groundwater as a basis for maintaining its action. Such quasi-sovereign interests refer to a state's interest in the well-being of its residents in general, and may not be used to further the interests of specific individuals.

Counsel for Plaintiff
Stephen Scheusler, Ass't Attorney General
Environmental Protection Division
720 Law Bldg., Lansing MI 48913
(517) 373-7780

Counsel for Defendant
Mark P. Fitzsimmons, Dean Dunsmore
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2285